author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. John D. LATHAN, Appellant.
    No. 46,359-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Douglas L. Harville, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Benjamin J. Bleich, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

hThe defendant, John D. Lathan, was charged by amended bill of information with operating a vehicle while intoxicated (“DWI”), fourth offense, in violation of LSA-R.S. 14:98(E). Following a bench trial, he was convicted as charged. He was sentenced to serve 20 years in prison at hard labor, “at least three” years of which were ordered to be served without benefit of probation, parole or suspension of sentence. For the reasons that follow, we affirm the defendant’s conviction, vacate the sentence and remand the matter to the trial court for resentencing.

FACTS

On November 4, 2008, at approximately 7:00 a.m., William Paul Rucker was driving to work in Bienville Parish when he observed a “tan” truck being driven in the wrong direction. Rucker began following the truck, which was swerving from one side of the road to the other side. Rucker noticed that the truck had caused two or three cars to leave the road and had almost hit a group of children who were waiting for the school bus. Rucker called 911 and provided a description of the truck and its license plate number; he also told the 911 operator that the driver was wearing a red shirt. Rucker followed the truck until it pulled into a private driveway and struck the front porch of the house located there.

Deputy Sheronda Bell of the Bienville Parish Sheriffs Department responded to the call. When Deputy Bell arrived on the scene, she observed a tan truck bearing the license plate number that had been provided by the 911 caller. The truck was parked at a private residence with its motor still running. Deputy Bell also observed the defendant, John D. Lathan, slumped 12in the driver’s seat of the truck with “his feet ... still on the floor on the driver’s side [and] his upper part of his body was leaned over toward the passenger side.” Deputy Bell opened the driver’s side door and tried to wake the defendant. After several attempts, the deputy managed to awaken the defendant and he exited the truck. Deputy Bell testified that the defendant was wearing a red shirt and “smelled of alcohol.” When questioned by Deputy Bell, the defendant denied driving the truck that morning; he stated that he had spent the night in the truck. A man and a woman exited the residence where the truck was parked, and the woman corroborated the defendant’s statement that he had spent the night in the truck.

Louisiana State Trooper Seth Harmon later arrived on the scene to assist Deputy Bell. The defendant’s interaction with the officers and his subsequent arrest were captured by the video camera installed in Trooper Harmon’s unit. The videotape was played in open court. During the trial, the defense stipulated that the defendant failed the field sobriety tests administered by Trooper Harmon. The defense also stipulated that the defendant blew a “proper sample” into the Intoxilyzer 5000 machine and the sample registered a .189 reading.

Because the defendant had three prior convictions for DWI, he was arrested and charged with DWI, fourth offense. During the trial, the defendant stipulated that he was the same person who was convicted of the three prior DWI charges.

Rucker, the 911 operator, Deputy Bell, Trooper Harmon and the | ^defendant testified during the trial. The defendant testified that on the evening of November 3, 2008, he was sleeping on his mother’s couch. He stated that he woke up at approximately 6:00 a.m. and discovered that his truck was gone. The defendant also stated that after he went outside and sat on his mother’s front porch, his nephew drove up in his truck. He testified that he and his nephew argued and his nephew left. The defendant stated that he got into the truck, drank some gin and fell asleep. The defendant admitted that earlier that morning, he had drunk beer with his friends in Taylor, Louisiana. However, he testified that he drove to his mother’s home at 2:00 a.m., not 6:00 a.m. or 7:00 a.m. On cross-examination, the defendant also admitted to driving drunk, with a suspended driver’s license, at 2:00 a.m.

Following a bench trial, the defendant was found guilty as charged. He was sentenced to serve 20 years in prison at hard labor, with “at least three” years of the sentence to be served without benefit of parole, probation or suspension of sentence. The trial court denied the defendant’s motion for new trial and motion for post-verdict judgment of acquittal. The trial court also denied the defendant’s motion to reconsider his sentence.

The defendant appeals.

I ¿DISCUSSION

The defendant contends the sentence imposed is constitutionally excessive. He argues that the sentence subjects him to cruel, excessive and unusual punishment and serves no other purpose than to cause him needless pain and suffering. The defendant also argues that many of the aggravating factors set forth in LSA-C.Cr.P. art. 894.1(B) do not apply to this case.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Swayzer, supra.

At the time of the defendant’s arrest, LSA-R.S. 14:98 provided, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, IflVessel, or other means of conveyance when:
(a) The operator is under the influence of alcoholic beverages; or
(b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood[.]
* * *
E. [0]n a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without the benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment[.]

In State v. Swayzer, supra, a defendant claimed on appeal that his sentence of 20 years in prison for DWI, fourth offense, was excessive. In determining the defendant’s sentence, the trial court noted that he had three previous DWI convictions over the span of a few years and had also pled guilty to possession of marijuana. The trial court concluded that the defendant posed a danger to other drivers and that it was unlikely he would change his conduct given his past behavior. This Court affirmed the defendant’s sentence on appeal, finding that the trial court had adequately expressed its reasons for imposing the sentence and the sentence did not shock the sense of justice. Id.; see also, State v. Hotard, 44,431 (La.App.2d Cir.6/24/09), 17 So.3d 64; State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769.

Similarly, in State v. Lewis, 45,057 (La. App.2d Cir.1/27/10), 31 So.3d 1144, the defendant pled guilty to DWI, fourth offense, and was | (¡sentenced to serve 20 years in prison. The defendant appealed the sentence, arguing that the sentence was excessive. This court rejected the argument, stating:

[T]he trial court reviewed the presen-tence investigation (“PSI”) report in great detail, and clearly considered many factors embodied within La. C. Cr. P. art. 894.1 including: the defendant’s employment history; prior convictions; inability to respond to rehabilitation; and the seriousness of driving while intoxicated. The trial court astutely noted that the defendant repeatedly endangered the life of himself and others while driving in an impaired state.

Id. at 1147.

In the instant case, the record reveals that the trial court articulated the aggravating circumstances it relied upon when imposing sentence. During the sentencing hearing, the trial court stated:

[BJecause of his intoxication he continued to drive and had a chance where I think somebody yelled out about the school children waiting for the school bus almost got hit. And for the long period of time that he was driving from point A to point B[.]
I don’t know whether because — the intoxication of either getting intoxicated that early in the morning or being intoxicated through the night has the concerns of the Court[.] [S]o given those considerations and the fact that it was a DWI 4th and that he has previously been given [sic] to participate in the substance abuse treatment and home incarceration for a DWI 3rd, the Court is going to sentence [the defendant] to twenty years Department of Corrections. At least three of which shall be without benefit of parole, probation or suspension of sentence.
* * *

During the motion to reconsider the sentence, the court stated:

After looking at 894.1, I guess number one is that the statute indicates that it’s a range of ten years to thirty |7years. This Court [sentenced the defendant to serve] twenty years which was a mi-drange between the ten and the thirty years. As to 894.1, it says ... that when the Defendant has been convicted of a felony or misdemeanor, the Court should impose a sentence of imprisonment if any of the following occurs: there is an undue risk that during the period of a suspended sentence or probation the Defendant will commit another crime. Well, he’s already had three previous DWIs and this is a fourth. Another one is that a lesser sentence would deprecate the seriousness of the Defendant’s crime. And in this Court’s opinion, the lesser sentence would because he’s got a DWI fourth offense. Another one is ... the offender knowingly created a risk of death or great bodily harm to more than one person. I believe the testimony indicated that there [were] some school children out on the road that almost got hit because of his DWI intoxication while he was driving. And also another one says that the Defendant’s criminal conduct and result of circumstances unlikely to reoccur? Well, it’s obvious that he’s had four reoc-currences, or three reoccurrences from the first DWI. It says he is particularly likely to respond affirmatively to probationary treatment? I don’t think that’s true considering the obsessiveness of his DWIs.... I don’t think there is any testimony as to that — that would create a hardship to himself or his dependents. So considering the factors that [were] involved in the case and considering that the factors that were in 894.1 and the fact that he came close to killing some school children, I think the twenty year sentence is not exeessive[.]

After reviewing the record in its entirety, it is clear that the trial court considered the factors embodied in LSA-C.Cr.P. art. 894.1. The maximum sentence for a fourth offense DWI is 30 years in prison and a $5,000 fine. LSA-R.S. 14:98(E). The defendant’s sentence of 20 years falls in the middle of the statutory sentencing range. Furthermore, as the trial court pointed out, the defendant’s prior convictions demonstrate the likelihood that he would continue to endanger lives by driving while intoxicated if given probation or a suspended sentence. We find that the sentence | ^imposed does not shock the sense of justice. This assignment lacks merit.

ERROR PATENT

In accordance with LSA-C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We have discovered one error patent.

LSA-C.Cr.P. art. 879 provides:

If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.

A sentence which provides that “at least” a certain amount of the sentence is to be served without the benefit of parole, probation or suspension of sentence is indeterminate, as it fixes no maximum number of years to be served before the defendant is eligible for parole, and is therefore illegal. See, LSA-C.Cr.P. art. 879; State v. Doby, 540 So.2d 1008 (La.App. 2d Cir. 1989), writ denied, 544 So.2d 398 (La. 1989).

We find that the sentence imposed herein is indeterminate. The trial court sentenced the defendant to serve 20 years imprisonment “[a]t least three of which” were to be served without the benefit of parole, probation or suspension of sentence. The imposed sentence fails to specify the maximum number of years the defendant must serve before he is eligible for parole. Therefore, we find that the sentence is illegal and must be vacated. We remand this matter to the trial court for resentencing.

^CONCLUSION

For the reasons set forth herein, the defendant’s conviction is affirmed. We vacate the defendant’s sentence and remand this matter to the trial court for resentenc-ing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED TO TRIAL COURT FOR RESENTENCING.

      . The defendant filed an application for "post-conviction relief” in this court. This court denied the application, stating:
      [T]his motion is not cognizable on post-conviction relief. The exclusive grounds for post-conviction relief, La. C. Cr. P. Art. 930.3, do not include claims of excessive sentence or other sentencing errors. State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

        State v. Lathan, 46,127 (La.App.2d Cir. 10/28/10) (unpublished).

      . In addition, we note that the trial court failed to impose the mandatory fine of $5,000. LSA-C.Cr.P. art. 882 provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. Thus, this court has discretion in deciding whether to correct an illegally lenient sentence. State v. Swayzer, supra; State v. Griffin, 41,946 (La. App.2d Cir.5/2/07), 956 So.2d 199. Given the defendant’s apparent indigent status, the term of imprisonment imposed and the state's failure to object at the time of sentencing, we decline to amend the sentence to impose the fine in this case.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    MOORE FINANCE COMPANY, INC., Plaintiff-Appellee v. Yolanda M. EBARB, Defendant-Appellant.
    No. 46,392-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Joseph A. Gregorio, Bossier City, LA, for Appellant.
    Santi A. Parks, for Appellee.

      Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

liThe defendant, Yolanda M. Ebarb, appeals from a default judgment finding that she owes the plaintiff, Moore Finance Company, Inc. (“Moore”), $4,667.98 on a promissory note, together with interest, attorney fees and costs. The defendant claims that the plaintiff did not provide sufficient evidence to support the default judgment. For the following reasons, we reverse the trial court judgment.

FACTS

On December 22, 2008, Ms. Ebarb executed a promissory note in favor of Moore for $7,774.75, secured by a mortgage on a 2003 Mitsubishi Eclipse automobile. The term of the loan was 36 months and the interest rate was 28.31 percent per year from May 11, 2010, until one year after contractual maturity, and thereafter at 18 percent per year. The agreement included 25 percent attorney fees in case of default, along with court costs. The total amount due was $11,799 with the initial payment of $327.75 due in February 2009.

On June 28, 2010, Moore filed suit on the promissory note against Ms. Ebarb, alleging that she had failed to make payments on the debt for six months and that the balance of $4,667.98 had become due and payable along with interest, attorney fees and costs. Along with the petition, a copy of the promissory note was filed, as well as a request for admission of facts. The request for admission of facts called upon Ms. Ebarb to admit the following: (1) It is a fact that your outstanding balance on the account is $4,667.98, together with additional interest of 28.31 percent from May 11, 2010, until one year after contractual maturity and thereafter at a rate of 18 |2percent per annum, until paid, and 25 percent attorney’s fees of the aggregate of principle and interest; (2) It is a fact that you applied for and were issued a loan by plaintiff with said loan bearing account #41181; (3) It is a fact that you signed a promiss[o]ry note in favor of plaintiff dated December 22, 2008; (4) It is a fact that interest and attorney’s fees are authorized either as a result of statu[t]e and notice or through your agreement with the creditor.

Also filed with the petition was an affidavit of correctness executed by Denise Raborn, manager of Moore, stating that she had personal knowledge of the account of Ms. Ebarb and that she was competent to testify thereto. She averred as to the amount of the debt, as set forth above, and that the Soldier’s and Sailor’s Civil Relief Act of 1940 did not apply to Ms. Ebarb. Personal service of the suit was made on Ms. Ebarb on July 1, 2010.

Ms. Ebarb did not answer the petition or the request for admission of facts. On July 23, 2010, Moore’s attorney sent a letter to the Bossier Parish Clerk of Court asking that a preliminary default be entered in the matter. The minutes reflect that a preliminary default judgment was entered on July 29, 2010.

On September 24, 2010, Moore filed a supplemental affidavit of correctness of account, executed by Ms. Raborn, adding only that the amount due was on Ms. Ebarb’s Moore Finance Company, Inc. account #41181, and that the defendant’s balance was currently subject to a credit of $.00. Moore also filed a certificate from the clerk of court’s office setting |sforth the date the suit on the promissory note was filed; that Ms. Ebarb received personal service on July 1, 2010; that no answer or other pleading was filed by the defendant; that a preliminary default was entered on July 29, 2010; that on September 24, 2010, Moore submitted to the court the purported proof required by law, together with the original and three copies of the proposed judgment; and that the plaintiffs submission and the entire record was submitted to the trial court judge on September 24, 2010.

The default judgment was signed by the trial court judge on September 27, 2010, in favor of Moore for $4,667.98, together with 28.31 percent interest from May 11, 2010, until one year after contractual maturity and thereafter at 18 percent per year until paid, and 25 percent attorney fees and all costs. Ms. Ebarb appealed devolutively.

SUFFICIENCY OF THE EVIDENCE

On appeal, Ms. Ebarb claims that the trial court erred in granting a default judgment in this matter. She asserts that the affidavits of correctness are insufficient to make a prima facie showing necessary to support the default judgment. This argument has merit.

In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment under the manifest error standard. Ballis v. Barnette, 44,751 (La.App.2d Cir.9/23/09), 23 So.3d 960. When a default judgment recites that the plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant, there is a presumption that the default judgment has been rendered upon sufficient ^evidence to establish a prima facie case and is correct, and the appellant has the burden of overcoming that presumption. Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 2006-0766 (La.App.1st Cir.2/9/07), 959 So.2d 914. On appeal, the record of a default confirmed without a hearing contains the entirety of the evidence before the trial judge and the appellate court is able to determine whether the evidence was competent and sufficient. The presumption is unnecessary and does not attach. See House of Raeford Farms of Louisiana, L.L.C. v. Osei-Tutu, 41,586 (La.App.2 Cir.11/1/06), 942 So.2d 601.

Regarding default judgments, La. C.C.P. art. 1701 provides in pertinent part:

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

The confirmation of default judgments is governed by La. C.C.P. art. 1702, which states in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case....
[B.] (3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.
C. In those proceedings in which the sum due is on an open account or a promissory note, ... a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held....

| ¿Although La. C.C.P. art. 1702(B)(3) states that when the sum due is on an open account or a promissory note or other negotiable instrument, “an affidavit of the correctness thereof shall be pri-ma facie proof,” the jurisprudence holds that, nevertheless, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Ballis v. Barnette, supra. The affidavit of correctness does away with the necessity of taking testimony in order to establish the validity of the debt. See Sessions & Fish-man v. Liquid Air Corporation, 616 So.2d 1254 (La.1993).

The required procedure for confirmation of a default judgment without a hearing in open court is set forth in La. C.C.P. art. 1702.1, which provides:

A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsuffi-cient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

Ms. Ebarb asserts that the affidavits of correctness speak of an account, but do not mention a promissory note. She contends that the |fiaffidavits do not aver that she failed to pay the note for a period of six months and do not show proof of amicable demand for payment. She claims that the affidavits do not itemize the payments made or show how the total sued upon was calculated. According to Ms. Ebarb, there is no showing in the affidavits that the amount due was calculated in light of La. R.S. 9:3532 and 9:3533, or any other statute defining a consumer transaction. She further contends that the affidavits do not specify why 17May 11, 2010, is the date that defines when the 28.31 percent interest starts. Ms. Ebarb points out that she purchased credit disability insurance as well as credit life insurance and there is no mention in the affidavits of correctness as to the credit given for the premium paid. Ms. Ebarb maintains that the reasoning of this court in Ballis v. Barnette, supra, should be applied to find that the affidavits of correctness were insufficient to support the default judgment.

In Ballis v. Barnette, supra, this court found that the plaintiff in a suit on a promissory note failed to establish a prima facie case because the affidavit of correctness was deficient in several respects. While the plaintiff sued to collect on a promissory note, the affidavit referred to the plaintiffs debt, not on a promissory note, but on an open account. Further, the original loan purported to be in the amount of $45,000; however, the affidavit stated that a total of $135,271.56 was owed. The affidavit of correctness did not provide a prima facie explanation of how that amount was reached. Finally, the affidavit stated that attorney fees of 33 1/3 percent were owed, a figure that was not present in the note. This court found that these “glaring inconsistencies undermine the probative value of the affidavit.” The default judgment was reversed and the matter was remanded to the trial court for further proceedings.

While the affidavits of correctness do not specify that the debt in the present case is based upon a promissory note, the unanswered request for |Radmissions of fact does. Further, in a suit on a note, there is no requirement under La. C.C.P. art. 1702.1 for an itemization of payments made on the promissory note or how the total amount sued upon was calculated. Under the terms of the note itself, there was no requirement of putting the defendant in default. The note states:

Should I (or any of us) default under any of the indebtedness, or should I default under any of my obligations under this Agreement, I agree that you shall have the right to accelerate payment of all amounts which I (or any of us) may then owe to you, which will then entitle you to foreclose under this Agreement and cause the Property to be immediately seized and sold under ordinary or executory process, with or without appraisement, in accordance with applicable Louisiana law, whether in terms of court or vacation, without the necessity of further demanding payment from me or notifying me or placing me in default.

However, most notably, while Moore’s petition alleges that Ms. Ebarb had failed to pay the debt for six months, neither the affidavits nor the request for admissions of fact state that she had failed to pay the debt, giving Moore the right to demand immediate payment of the unpaid | abalance. The request for admission of facts asks only for an admission that the defendant has an outstanding balance of $4,667.98. It does not ask the defendant to admit that she had defaulted on the note, giving Moore the right to accelerate payment of all amounts owed. Therefore, Moore failed to establish that it had the right to find the defendant in default, accelerate the payments, and sue for the entire debt under the note. Absent any showing that the debt was due, Moore failed to establish a prima facie showing sufficient to support the default judgment. Accordingly, we must reverse the trial court judgment confirming the default.

CONCLUSION

For the reasons stated above, we find that the plaintiff, Moore Finance Company, Inc., failed to make a prima facie showing sufficient to support a default judgment against the defendant, Yolanda M. Ebarb, in this suit on a promissory note. The trial court ruling granting default judgment is reversed and the matter is remanded to the trial court for further proceedings. All costs in this court are assessed against the plaintiff.

REVERSED AND REMANDED.

      . La. R.S. 9:3532 provides:
      A. Upon prepayment in full of a precomputed consumer credit transaction, the extender of credit shall refund unearned loan finance charges or credit service charges and such refund shall represent at least as great a proportion of the loan finance charge or credit service charge after first deducting from such charge a prepayment charge of not more than twenty-five dollars as the sum of the monthly time balances beginning one month after the month in which prepayment is made, bears to the sum of all the monthly time balances under the schedule of payments in the contract; this method of rebate upon prepayment is commonly referred to as the “Rule of 78’s” or the "Sum of Digits” rebate method. If more than one-half of the term of the installment contract has elapsed, the rebate shall be computed without deducting a prepayment charge. For the purposes of rebate upon prepayment, deferral charges are not required to be rebated. No rebate less than one dollar, or to the extent provided for by federal law is required.
      B. (1) There is no requirement that prepaid finance charges be rebated upon prepayment in full of a simple interest transaction prior to maturity, provided that all of the following conditions are satisfied:
      (a) The original amount financed under the transaction was ten thousand dollars or more.
      (b) The original scheduled term of the transaction was thirty-six months or longer.
      (c) Prepaid finance charges assessed under the transaction did not exceed five percent of the original amount financed or amount deferred.
      (2) Where any one or more of the foregoing conditions are not satisfied, prepaid finance charges shall be subject to rebate upon prepayment in full of a simple interest transaction under the same method in Subsection A of this Section.
      C. Compliance with the provisions of this Section shall constitute compliance with the provisions of R.S. 9:3519.
      La. R.S. 9:3533 states:
      Except as provided in R.S. 9:3527, if the maturity of a consumer credit transaction is accelerated for any reason and suit is filed, the obligation shall be credited with the same rebate required under R.S. 9:3532(A) or (B), as applicable, as if prepayment in full had been made as of the date the maturity of the obligation is accelerated at the creditor’s election, except that any credit life insurance and health and accident insurance in force at such time shall not be rebated until payment is made in full; thereafter the obligation sued upon shall be deemed to bear a loan finance charge or credit service charge on the amount due at the annualized rate previously agreed to by the consumer until the transaction is paid in full.

      . A party may serve upon any other party a written request for the admission, for purposes of the pending actiqn only, of the truth of any matters within the scope of La. C.C.P. arts. 1422 through 1425 (dealing with discovery), set forth in the request or of the truth of any relevant matters of fact, including the genuineness of any documents described in the request. La. C.C.P. art. 1466. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 15 days after the service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney. La. C.C.P. art. 1467. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. La. C.C.P. art. 1468.
      Admissions may be used to establish uncon-tradicted facts or controversial issues which constitute the crux of the matter in litigation. Tandy v. Pecan Shoppe of Minden, Inc., 34,578 (La.App.2d Cir.4/4/01), 785 So.2d 111. See also Jie v. Certified Lloyds Plan, 34,545 (La.App.2d Cir.4/4/01), 785 So.2d 118; Remondet v. Reserve National Insurance Company, 433 So.2d 792 (La.App. 5th Cir. 1983), writ denied,
        441 So.2d 216 (La.1983). When the party receiving the request for admissions fails to respond to the request by any means, the fact is deemed admitted. Tandy v. Pecan Shoppe of Minden, Inc., supra. See also Hoskins v. Caplis, 431 So.2d 846 (La.App. 2d Cir. 1983); Dan-Cin Construction Company, Inc. v. Thrasher, 2008-1552 (La.App. 1st Cir.2/13/09), 9 So.3d 205.

      . This court holds that strict compliance with La. C.C.P. art. 1702.1 is not fatal error as long as each element of proof necessary to meet the codal requirements for confirmation of a default without a hearing is contained in the record. See Ruston State Bank & Trust Company v. Streeter, 545 So.2d 1255 (La.App. 2d Cir.1989). However, we caution that close adherence to the procedure set forth in La. C.C.P. art. 1702.1 for providing the necessary elements of proof is the better practice.


author: LOLLEY, J.

text:
    Walter William GERHARDT, Plaintiff-Appellee v. Tammy Joanna Jones GERHARDT, Defendant-Appellant.
    No. 46,463-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Richard Lynn Ducote, Metairie, LA, for Appellant.
    Randall R. Robinson, Bossier City, LA, for Appellee.

      Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

L Tammy Joanna Jones Gerhardt, the mother, appeals the judgment by the First Judicial District, Parish of Caddo, State of Louisiana, granting sole custody of the couple’s two children to Walter William Gerhardt, the father, and supervised visitation to Tammy. For the following reasons, we affirm the trial court’s judgment.

Facts

Walter and Tammy were married in 1991 and had two children-one son in 1995 (“the older child”) and another son in 2000 (“the younger child”). The couple physically separated in 2009, after which a consent judgment and interim order over the custody arrangement was issued awarding Walter visitation while the children resided with Tammy.

In his petition for divorce, Walter asked for sole custody of the children until Tammy secured treatment for substance abuse, an eating disorder, and mental issues. Tammy countered by asking for joint custody of the children and claiming, among other things, that Walter is abusive physically, mentally, and emotionally.

Subsequently, Walter moved for two counts of contempt against Tammy, stating she was not allowing Walter visitation with the children as mandated by the court order. Tammy was found guilty of contempt of the court order, but sentencing was deferred upon Walter’s request.

Shortly after, Walter filed a third rule for contempt against Tammy for, among other things, her failure, once again, to allow Walter to exercise his custody rights. The matter was heard by the trial court and witnesses were presented. Officer Matthew Reger of the Shreveport Police |2Pepartment (“SPD”) testified that he was called to Walter’s home over an incident where the older child claimed Walter had hit him. The officer did not make an arrest because he did not believe a crime had occurred. Walter testified that no physical altercation had occurred between his older child and himself, and that after that incident he had been deprived of seven weeks of visitation with the children. He also stated Tammy disparaged him in front of the children, also against court order. Walter Gerhardt’s mother, Rosemary Gerhardt, with whom Walter resided, corroborated Walter’s testimony that no physical altercation had ensued.

Tammy also testified. She admitted that Walter had not had visitation with the children; however, she claimed this was because the children refused. She stated the police report regarding the physical altercation was incorrect. She also began rambling about her religious views and admitted that she will not open any letters from Walter, his attempt at communication.

The trial court found Tammy guilty of contempt, reasoning that it found Walter to be very credible, while taking issue with Tammy’s credibility, even pointing out her “strange” demeanor. The trial court then ordered Tammy to serve 15 days in jail for each of three counts of contempt, running consecutively.

Subsequently, Walter filed a fourth motion of contempt against Tammy and also requested sole custody of the younger child. The couple was then issued a judgment of divorce as the requisite time period had [elapsed. A hearing was conducted on the fourth contempt motion and several witnesses were called to testify.

Melissa White, Tammy’s former best friend, testified that Tammy’s personality has changed drastically over the past three years. She said Tammy has become hyperactive, would not sleep for nights at a time, would not clean the house, would drink heavily, would exhibit paranoia, and would talk negatively about Walter in front of the children. She claims Tammy’s behavior became so alarming that she, along with other friends, held an intervention. This testimony regarding Tammy’s unusual change in behavior was corroborated by several other friends of Tammy’s: Fred White, Sharon Partain, Amanda Phillips, and Kim Gibbs. White also testified that Tammy telephoned her and said the children reported that Walter had sexually abused them. However, she also testified that as Tammy told her this, she could hear the children in the background screaming at Tammy, “No, that’s not what I said ... I said Daddy pushed me.” At the conclusion of the hearing, the contempt charge was dropped in light of an agreement made between the parties.

In this new agreement, the custody remained joint, but Walter was designated as the domiciliary parent and Tammy was to have visitation on weekends. Tammy would pay the note and insurance for her vehicle as well as receive child support payments. Interim spousal support concluded. Additional requirements were placed on each parent when he or she was in custody of the children as well. They were ordered not to consume alcohol; [4to provide adequate supervision; not to have overnight visitors; to supervise the older child after 6:00 p.m.; and not to leave the children alone together. Also, Tammy agreed to allow the older child to go to a treatment facility in Tennessee that was chosen by Walter.

Walter subsequently filed a fifth motion for contempt against Tammy. This time, Walter requested Tammy not only be found in contempt of the court order, but also that her visitation with the children be immediately suspended after he learned of a driving incident, in which Tammy, while driving the younger son, ran her vehicle off the road into a ditch. Tammy and the son were found the next morning, still in the vehicle. The older son had been left alone at home the entire night. Walter also claimed Tammy had fallen delinquent on the financial obligations she agreed to pay pursuant to the court order, which he had to pay for her.

In opposition, Tammy prayed for sole custody of the children, supervised visitation by Walter, and the appointment of an attorney to represent the children in the matter. She claimed Walter abused the children both physically and sexually and that the treatment facility Walter chose to send the older child to was actually a “bogus facility operated by the discredited cult ‘Church of Scientology.’” Tammy also claimed she did not freely consent to the previous custody agreement as it was induced by fraud, and, therefore, could not be in contempt of breaching it. Pending a hearing on the matter the trial court suspended Tammy’s visitation with the younger child and issued her restricted and supervised visitation with the older child.

|sA hearing was held and witnesses were called. Corporal R.J. Herkey of the SPD testified that he responded to the scene when Tammy was found in her vehicle on the side of the road at 8:00 a.m. He stated the incident did not appear to have been alcohol-related. Detective Jeff Holiday of the SPD testified that he investigated the abuse claims and did not have enough evidence to make an arrest.

Walter testified that Tammy has not been paying her car note or insurance, and that Tammy did not move out of the family home when ordered by the court to do so. He stated Tammy had violated the custody agreement by leaving the older son alone after 6:00 p.m. as well as consuming alcohol. He also said he stands by his decision to send his older child to the rehabilitation treatment center in Tennessee and that he has never abused the children.

Tammy testified that the children reported to her that Walter had sexually abused them. She also testified to the medications she takes: Adderall; hypoglycemia medication; hydrocodone; Lor-tab; and Topamax. She testified that she knows the incident in the vehicle was dangerous, but the reason it occurred was because she had consumed wheat to which she is allergic and drunk wine which can create problems with her hypoglycemia. She rambled off topic several times during her testimony. She also claimed her own father, the children’s grandfather, and an unknown person had previously abused the older child, as well.

The older child testified that Walter has both physically and sexually abused him and that he wants nothing to do with Walter, but that he loves |6his mother. He said the rehabilitation center to which his father sent him was a very bad experience and did not help him at all. He testified that he was the only child among several “crazy” adult patients and that he was forced to run and sit in saunas for hours, as well as read books on Scientology.

Drs. Ann Springer and Deborah Brown testified that the children had reported to them they had been abused by Walter physically and sexually, and they had no reason to believe this was untrue or coached. Tammy’s doctor, Dr. Ricky Jones, testified that Tammy is hypoglycemic and that alcohol can exacerbate the condition.

After articulating a thorough reasoning for the judgment, the trial court found for Walter, rejecting the evidence purporting to prove abuse, and awarded Walter sole custody of the children while allowing Tammy supervised visitation. This custody arrangement was set up to be modified in the future if Tammy showed signs of improvement so she could eventually have more visitation with her sons and then go back to a joint custody arrangement. The court also found Tammy guilty of three counts of contempt for failing to pay car insurance and -car mortgage payments, leaving the younger child unsupervised, and drinking in the presence of the children against court orders. Tammy was remanded into custody until she reimbursed Walter for the amount he paid toward her financial obligations and submitted to a drug test. Tammy now appeals this judgment.

|7Law and Discussion

On appeal Tammy asserts four assignments of error. First, she asserts the trial court erred by granting Walter sole custody when he had not sought such a custody modification in his pleading. Second, she contends the trial court abused its discretion by failing to appoint an attorney for the children. Third, she submits the trial court erred by admitting specific evidence, namely, Tammy’s health records, a letter from the Department of Social Services, and a report from the Office of Community Services. Last, Tammy asserts the trial court erred in modifying the custody agreement to award Walter sole custody and Tammy visitation of the two children.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.02/06/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, 27 So.3d at 1029. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

To the extent feasible, and in the best interest of the child, physical custody of the child should be shared equally. La. R.S. 9:335(A)(2)(b). Continuity and stability of environment are important factors to consider in ^determining what is in the best interest of the child. Pender v. Pender, 38,649 (La.App.2d Cir.05/12/04), 890 So.2d 1.

In the area of domestic relations, much discretion is vested in the trial judge, particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of credibility of witnesses. When findings of fact are based upon a decision regarding credibility .of witnesses, respect should be given to those conclusions for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on understanding and believing what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Mizell v. Mizell, 37,004 (La.App.2d Cir.03/07/03), 839 So.2d 1222. The determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Pender, 890 So.2d 1. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Id. In order to reverse a factfinder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Salvant v. State, 2005-2126 (La.07/06/06), 935 So.2d 646; Johnson v. Morehouse General Hospital, 44,798 (La.App.2d Cir.12/22/09), 27 So.3d 1085.

1 aCustody

In her first assignment of error Tammy submits the custody agreement was modified in violation of her due process. In his pleading, Walter requested a modification to the visitation schedule; he did not request the joint custody arrangement be changed to sole custody. Because the judgment awarded Walter sole custody, which was not prayed for in his pleadings, Tammy asserts this was outside the trial court’s authority.

In support of her argument, Tammy relies on Havener v. Havener, 29,785 (La. App.2d Cir.08/20/97), 700 So.2d 533, Verret v. Verret, 34,982 (La.App.2d Cir.05/09/01), 786 So.2d 944, and Griffith v. Latiolais, 2010-0754 (La.10/19/10), 48 So.3d 1058, standing for the proposition that a trial court cannot expand the pleadings or go beyond the relief requested by a litigant. The difference between the cited case law and the case before this court is in the expansion of the pleadings based on the evidence presented. Louisiana C.C.P. art. 862 grants the trial court authority to render a final judgment granting the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. However, a judgment rendered beyond the pleadings is a nullity, although a trial court has the discretion to allow enlargement of the pleadings to conform to the evidence. Curtis v. Curtis, 34,317 (La.App.2d Cir.11/01/00), 773 So.2d 185. In Havener and Verret, the respective trial courts did not allow for expansions of the pleadings because evidence was not presented to justify such. In Griffith, sole custody was neither prayed 110for nor supported by the record; therefore, the trial court did not expand the pleadings there either.

But in the case sub judice, the record shows the contrary. The trial court offered well thought out reasons for judgment which reflected that the trial court examined the evidence presented by both parties in great detail. The trial court ruled outside the pleadings based on that evidence. We conclude after a careful examination that the trial court’s ruling of sole custody is also supported by the record and within the dictates of La. C.C.P. art. 862.

It is also important to note that although Walter did not pray for sole custody, Tammy did. Therefore, she was on notice that the issue of custody was before the trial court at the hearing. The trial court reached the conclusion that evidence existed for replacing the joint custody decree ■with a sole custody award in favor of Walter, which would be in the best interest of the children pursuant to La. C.C. art 184, on an anticipated temporary basis. However, the trial court recognized the benefit of a joint custody plan and assured Tammy that as soon as she showed improvement, less limited visitation and eventual joint custody would be considered again.

While case law is helpful, it is important to remember that each child custody case must be viewed in light of its own particular facts and circumstances, with the prevailing inquiry as to whether the custody arrangement is in the best interest of the child. McCormic v. Rider, 2009-2584 (La.02/12/10), 27 So.3d 277. Therefore, we conclude that the trial | n court did not abuse its discretion in awarding Walter sole custody of the children.

Legal Representation for the Children

In her second assignment of error, Tammy asserts that the trial court erred in failing to appoint the children their own attorney pursuant to La. R.S. 9:345 based on the children’s claims of abuse by Walter. Pursuant to La. R.S. 9:345 the trial court may appoint an attorney to represent a child in a custody hearing if after a contradictory hearing the court determines it is in the best interest of the children to do so. The trial court shall consider many factors including whether the proceeding is exceptionally intense or protracted, if this appointment is likely to elicit information that would probably not come out to the court otherwise, or if the interests of the children and the parent conflict. A trial court shall appoint an attorney to represent the children if in the contradictory hearing any party presents a prima facie case that a parent has sexually, physically, or emotionally abused the children.

It is clear from the trial court’s judgment, as well as its thorough reasons for judgment, that it found no prima facie case of abuse; therefore, it was completely within the court’s discretion whether to appoint an attorney to represent the children. The trial court did not arbitrarily deny the request, but instead considered it, and within its discretion, found it unnecessary. The trial court noted:

The Court is going to deny the request to appoint counsel without prejudice to raise it again at some point. I want to be clear that I don’t mean this to be the law of the case, so to speak, such that it can’t be raised again if appropriate. But at this point in time, from |1Pwhat has gone on in the case, I see no reason to appoint attorneys for the children. These people, Mr. and Mrs. Gerhardt, are not wealthy at this point in time. It will be expensive. I don’t think it will be productive. And I’d be far more inclined to appoint some mental health professionals. We address that when necessary.

The trial court’s conclusion on this issue was not in error; thus, this assignment of error is without merit.

Admission of Evidence

In her third assignment of error, Tammy argues the trial court erred in admitting three specific pieces of evidence into the trial. The first piece of evidence at issue is Tammy’s medical records from Willis-Knighton Pierremont Health Center after the incident in which she was found passed out in her vehicle with her younger son. Tammy argues the trial court erred in admitting the records because the subpoena used to obtain the records was flawed. The second piece of evidence is a letter from the Department of Social Services stating the Department had done an investigation into the claims of abuse against Walter and subsequently cleared Walter of those charges. Tammy claims the letter was inadmissible at trial because it was unauthenticated and hearsay. The third piece of evidence is the record of the investigation into Tammy’s driving incident conducted by the Office of Community Services. Tammy claims the records are also inadmissible as hearsay.

The trial court is granted broad discretion in its evidentiary rulings which will not be disturbed absent a clear abuse of that discretion. At trial a party must make a timely objection to evidence the party considers to be inadmissible. On appeal, this court must consider whether the complainedjof13 ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. Johnson, 27 So.3d 1085.

In the case sub judice, the trial court’s thorough and insightful reasons for judgment adequately explain the opinion and the trial court’s decision. The weight given to particular pieces of evidence, as well as credibility determinations that led it to reach its decision were traced. Two of the records at issue are written reports regarding Tammy’s driving incident. The trial court heard testimony from Tammy herself about the incident in which she admitted to having drunk alcohol that night, passing out, and being disoriented. No relevant additional information was contained in the records that was not admitted by Tammy herself at trial.

The other evidence at issue is a report stating Walter had been investigated and cleared of child abuse charges. The trial court took special consideration to name eight reasons it felt the claims of abuse against Walter were not founded. Only one of those eight reasons was that the claims had been investigated two times prior to this court proceeding and Walter had been cleared both times. The evidence at issue was a report stating one of the times in which Walter had been cleared of the charges. It is obvious the trial court would have still concluded the claims were unfounded without consideration of the report in question.

Error has been defined as harmless when it is trivial, formal, merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case. Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76 (La. 1990). It is clear the evidence at issue in no way affected the final outcome of the case and was, therefore, harmless. There was overwhelming evidence to support the trial court’s findings aside from the evidence in question. This assignment of error is without merit.

Applicable Legal Standard

In her final assignment of error, Tammy asserts the trial court’s ruling to modify the custody and visitation order was not based on the proper legal standards. She claims the trial court did not analyze the case under the best interest of the child factors or base its decision to modify the custody arrangement on the required proof of a material change in circumstances. Additionally, she argues the award of sole custody was not based on the required clear and convincing evidence standard that the new arrangement was in the best interest of the children. As the Louisiana Supreme Court explained in Griffith, 48 So.3d at 1070:

Pursuant to the 1993 Revisions to the child custody provisions, joint custody is no longer presumed to be in the best interest of the child; however, it is mandated unless (1) there is an agreement between the parents to the contrary which is in the best interest of the child, or (2) one parent shows by clear and convincing evidence that sole custody to that parent would serve the best interest of the child. “Clear and convincing” evidence is applied in civil cases only in exceptional circumstances, “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds.” “The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence.” (Citations omitted).

It is clear that the trial court found that custody with Walter was shown by clear and convincing evidence to be in the best interest of the children, as [ 1fievidenced in the trial court’s Reasons for Judgment, particularly one of the closing comments:

That’s the order at this point. And the reason I have done this with the children is because that’s what the evidence indicates. And I’m happy, as I’ve said, to change that, to modify it as rapidly as can be done but right now, I’m concerned with the safety of the children. And I’m concerned with the mental health of both the children, as well.

Therefore, this assignment of error is without merit, as well.

Conclusion

For the foregoing reasons, the judgment in favor of Walter William Gerhardt is affirmed, and all costs of this appeal are assessed to the appellant, Tammy Joanna Jones Gerhardt.

AFFIRMED.


author: STEWART, J.

text:
    MONROE HOUSING AUTHORITY, Plaintiff-Appellant v. John COLEMAN, Defendant-Appellee.
    No. 46,307-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 25, 2011.

      Rountree Law Offices, Monroe, LA, by James A. Rountree, for Appellant.
    John Coleman, In Proper Person.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   STEWART, J.

|! Plaintiff-Appellant Monroe Housing Authority (“housing authority”) is appealing a judgment denying Defendant-Appel-lee John Coleman’s eviction. We affirm.

FACTS

John Coleman resides in an apartment owned by the Monroe Housing Authority in Monroe, Louisiana. On June 28, 2010, the housing authority mailed Coleman a notice informing him that his lease would not be renewed. On August 6, 2010, Coleman was notified in writing to vacate the premises. The housing authority filed a rule for eviction against Coleman, asserting that his right to occupy the premise has expired due to:

(1) Material noncompliance with this Agreement, material failure to carry out obligations under any State landlord or tenant act, or other good cause.

An eviction notice was attached to the rule for eviction. The housing authority asserted in the rule for eviction that Coleman’s lease agreement was not renewable due to “repeated violations of lease agreement which disrupted the livability of the project and adversely affected [Coleman’s] neighbor’s peaceful enjoyment of the property.”

At trial, the lower court recognized that the housing authority attached an eviction notice to its rule for eviction. However, since the housing authority failed to offer the eviction notice into evidence, the lower court determined that the eviction notice was not evidence it could consider.

More importantly, because no lease was entered into evidence, the lower court determined that the housing authority did not satisfy its burden of proving that a lease was presented to Coleman and that he failed to sign. |2It also recognized that a witness had testified that Coleman signed all his leases in the past.

The lower court denied the eviction. The housing authority now appeals.

LAW AND DISCUSSION

The housing authority argues in its sole assignment of error that the lower court erred in failing to grant its petition for eviction, since there was no dispute that the lease had expired.

A court may not set aside a trial court’s or . a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. Of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing, Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse the trial court’s factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings as clearly wrong or manifestly erroneous. Stobart, supra.

The provisions of La. C.C.P. arts. 4701, et. seq, provide a summary process for eviction of a lessee by a lessor because the lease had ended due to expiration of its term, or for other lawful cause. Williams v. Bass, 37,156 (La.App. 2 Cir. 5/14/03), 847 So.2d 80. It is well settled that a summary action for eviction of a tenant or lessee under these articles involves the single issue of whether the lessor is entitled to receive back possession of the leased premises. Id.

| ^Housing contends that since the lease expired on July 31, 2010, Coleman had no right to remain in possession of the apartment.

Coleman testified that the lease did not expire on July 31, 2010. Rather, he believed that it expired on August 4, 2010. For some unexplained reason, the housing authority did not offer the lease into evidence.

Sheryl Farmer, who is a supervisor for the housing authority’s retired properties, testified that Coleman had signed his leases in the past. Since there is no evidence showing that any lease had been presented to him in 2010, and that he failed to sign, the lower court did not err in denying the eviction. This assignment is without merit.

CONCLUSION

Finding no manifest error, we affirm the lower court’s judgment. Costs of this appeal are assessed to the Monroe Housing Authority.

AFFIRMED.


text:
    Mary Susan Darnell SMITH through her agent Suzanne Smith UPCHURCH, Plaintiff-Appellant v. McGUIRE FUNERAL HOME, INC., William J. (Jimmy) McGuire, Citizens Bank & Trust Company of Vivian, Louisiana, Inc., Regions Bank, Capital One, National Association, First Guaranty Bank, and American Bank & Trust Company, Defendants-Appellees.
    No. 46,326-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 1, 2011.

      Law Office of J. Patrick Hennessy by J. Patrick Hennessy, Law Offices of Roun-tree & Guin by Billy J. Guin, Jr., Daye, Bowie & Beresko, APLC by R. Scott Bowie, Jr., Shreveport, LA, for Plaintiffs-Appellants Mary Susan Darnell Smith, Linda Wallace Cooper, Elbert Newman Graves and Suzanne Smith Upchurch.
    William J. (Jimmy) McGuire, for Defendant-Appellee McGuire Funeral Home, Inc., In Proper Person.
    William R. Jones, Coushatta, LA, for Defendant-Appellee American Bank & Trust Co.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Bernard S. Johnson, Kristina B. Gustavson, for Defendant-Appellee Regions Bank.
    Cashe Coudrain & Sandage, Hammond, LA, by Andre G. Coudrain, for Defendant-Appellee First Guaranty Bank.
    Susan McGuire, In Proper Person.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

1 jThe plaintiffs appeal two judgments, one denying their motion for class certification and one sustaining the peremptory exception of no right of action in favor of American Bank and Trust Company (“American”), a defendant herein. For reasons explained in this opinion, we affirm the judgment in favor of American, but we reverse the judgment that denied certification and remand for further proceedings.

FACTS

On March 26, 2008, Mary Susan Darnell Smith (“Smith”), through her agent Suzanne Smith Upchurch, filed a class action complaint against McGuire Funeral Home, Inc., and William J. McGuire (referred to together as “McGuire”); Citizens Bank & Trust Company of Vivian, Louisiana, Inc. (“Citizens”); Regions Bank (“Regions”); Capital One, National Association (“Capital One”); First Guaranty Bank (“First Guaranty”); and American. The petition was later amended to add Elbert Neuman Graves and Linda Wallace Hooper as plaintiffs and purported class representatives along with Smith. Susan B. McGuire was added as a defendant.

The gist of the complaint is that McGuire sold prepaid funeral services to the plaintiffs and other putative class members. He deposited their payments into certificates of deposit with one or more of the banks named as defendants. The majority of the certificates of deposit were under names styled, “McGuire Funeral Home, Inc.,” followed by either “POD,” meaning payable on death, or “FBO,” meaning for the benefit of, or simply “for,” followed by the name of individual whose prepaid funeral funds were being held on deposit. Without presentation of a death certificate as | ^required by La. R.S. 37:861, the law governing prepaid funeral services, and in breach of the banks’ contracts, namely, the certificates of deposit, McGuire was allowed by the banks to withdraw the funds, which he converted and appropriated for his own use. The plaintiffs assert that by accepting the deposits, the defendant banks became solidarity liable with McGuire.

By a motion for class certification filed on May 30, 2008, plaintiffs are seeking to certify a class defined as “[a]ll individuals from whom [McGuire] appropriated and converted funds collected by him for prepayment of funeral expenses.” The motion asserts that the common questions of law and fact include: (1) whether McGuire appropriated and converted funds of the class members in violation of La. R.S. 37:861; (2) whether the defendant banks released the class members’ funds in violation of La. R.S. 37:861 and the banks’ contracts; and (3) whether the defendant banks released funds belonging to the class members without obtaining death certificates.

In addition to opposing class certification, the defendant banks filed various exceptions, including that of no cause of action, in response to the petition. Though the trial court overruled peremptory exceptions filed by Regions and Capital One, it sustained American’s peremptory exceptions in a judgment rendered August 19, 2010. A footnote to the judgment suggests that the trial court found merit with the exception of no right of action. American had argued that the plaintiffs did not have individual rights of action against it because their funds had not been deposited with it and that |3the allegation of soli-dary liability did not give the plaintiffs a right of action against it on behalf of the putative class members. The trial court noted its agreement with American’s argument by concluding that “no individual who had a certificate of deposit POD with American Bank and Trust has been named as a class representative and the solidary liability theory advanced by counsel is not authorized by Louisiana law.”

Also on August 19, 2010, the trial court rendered a judgment denying the plaintiffs’ motion for class certification. In declining to certify the class action, the trial court found that the plaintiffs did not satisfy the prerequisites of La. C.C.P. art. 691(A). The trial court found the evidence insufficient to show that the class is so numerous and geographically dispersed that joinder would be impracticable, that the class representatives would adequately represent the putative class members, or that their claims are typical of those of the putative class members. The trial court was persuaded that different packages of evidence would be required for each class member’s claim, including separate reviews of each defendant bank’s contracts. Finally, the trial court found a lack of commonality in that “there are three different banks with three different contracts, three different bank policies, and somewhat varied causes of action levied against each of them.”

Plaintiffs now appeal both judgments. We note that both Citizens and Capital One have been dismissed by the plaintiffs from the suit. Thus, Regions, First Guaranty, and American are the remaining bank defendants.

14JUDGMENT GRANTING EXCEPTION

An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The peremptory exception of no right of action tests whether the plaintiff has a real and actual interest in the lawsuit. La. C.C.P. art. 927. It is used to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885; Edmonds v. City of Shreveport, 39,893, (La.App.2d Cir.8/31/05), 910 So.2d 1005, writ denied, 2005-2324 (La.3/31/06), 925 So.2d 1255. Whether a plaintiff has a right of action is a question of law. Edmonds, swpra.

At issue is whether the plaintiffs have a real and actual interest in a suit against American. Stated another way, do the plaintiffs belong to the class of persons to whom the law grants the cause of action asserted against American?

Citing La. C.C. art. 1821 and Voros v. Dorand, 08-667 (La.App. 5th Cir.5/26/09), 15 So.3d 1083, plaintiffs argue that the allegation of solidary liability between each bank and McGuire entitles them to represent the claims of putative class members whose prepaid funeral funds were deposited by McGuire with American even though their own prepaid funeral funds had not been deposited with American.

In Voros, supra, an office manager of a medical practice stole money from the plaintiffs personal and business accounts at Bank of Louisiana. Both the office manager and the Bank of Louisiana were defendants. In Roverruling the Bank of Louisiana’s exception of prescription, the court found it to be a solidary obligor with the officer manager. As argued by the plaintiff and accepted by the court, the bank’s negligence and actions were intertwined with the actions of the office manager making them solidarily liable.

In Voros, supra, the plaintiff had a banking relationship with the Bank of Louisiana. Here, the named plaintiffs have not alleged a relationship with American. There is no allegation that their prepaid funeral funds were ever deposited with American. Absent any connection or dealings with American, the plaintiffs do not have a real and actual interest in a suit against American. Only those persons whose prepaid funeral funds had been deposited by McGuire with American would have a real and actual interest in a suit against American.

Plaintiffs also argue that because they seek to bring a class action, they have standing to sue American on behalf of the putative class members. In support of this argument, they cite a passage from Newberg an Class Actions, § 3:18, H. Newberg and A. Conte (4th Ed.2002), which addresses whether a plaintiff has standing to sue a defendant with whom he has had no business contact or dealings. The treatise suggests that standing may exist where the defendant’s conduct is part of a conspiracy. No conspiracy is alleged among the defendants named in this action.

As did the trial court, we find that plaintiffs do not belong to the class of persons to whom the law grants the cause of action asserted against American in this suit. Thus, the peremptory exception was properly granted.

JUDGMENT DENYING CERTIFICATION

A trial court has wide discretion in deciding whether to certify a class, and its decision will not be overturned on appeal absent a finding of manifest error or abuse of discretion. Marsh v. USAgencies Cas. Ins. Co., 42,176 (La.App.2d Cir.5/16/07), 957 So.2d 901, unit denied, 2007-1286 (La.10/26/07), 966 So.2d 575; Edmonds, supra. However, errors in deciding whether to certify a class should be made in favor of, rather than against, maintenance of a class action, because a class certification order is subject to modification. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984); Edmonds, supra. La. C.C.P. art. 592(A)(3)(c) allows the court to “alter, amend, or recall its initial ruling on certification” and to “enlarge, restrict, or otherwise redefine the constituency of the class or the issues” any time before rendering a decision on the merits of the common issues.

The class action is a procedural device, and the question before the court when reviewing a judgment on class certification is whether the case is one in which the procedural device of a class action is appropriate. Marsh, swpra.

The party seeking certification must prove that the statutory prerequisites set forth in La. C.C.P. art. 591 are met. Howard v. Willis-Knighton Medical Center, 40,634 (La.App.2d Cir.03/08/06), 924 So.2d 1245, writs denied 2006-0850 (La.06/14/06), 929 So.2d 1268 and 2006-1064 (La.6/14/06), 929 So.2d 1271. This means that the plaintiffs must meet all the prerequisites of La. C.C.P. art. 591(A), which states:

|7A. One of more members of the class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Additionally, the action must fit under one of the categories set forth in La. C.C.P. art. 591(B). Because the trial court determined that the criteria of Subsection A were not satisfied, it did not reach the issue of whether certification was warranted under Subsection B. We will begin our review by examining whether the trial court’s finding that the plaintiffs did not satisfy the prerequisites of La. C.C.P. art. 591(A) is manifestly erroneous or an abuse of discretion.

Numerosity

To satisfy the numerosity requirement, plaintiffs must show that join-der is impracticable and that there is a definable group of aggrieved persons. Edmonds, 39,893, p. 10, 910 So.2d at 1012, and cases cited therein. However, there is no requirement that every member of a potential class must be identified to obtain certification, and there is no set number of potential claimants that satisfies the nu-merosity requirement. Id. Rather, | Rwhether the class is so numerous that joinder is impracticable depends on the facts and circumstances of each case. Id.

Whether the numerosity requirement is satisfied is based on the number of class members as well as considerations of judicial economy in avoiding multiple suits and the size of the individual claims. Howard, supra. The financial resources of the individual class members has also been mentioned as a factor for consideration. Husband v. Tenet HealthSystems Memorial Medical Center, Inc., 2008-1527 (La.App. 4th Cir.8/12/09), 16 So.3d 1220, writ denied, 2009-2163 (La.12/18/09), 23 So.3d 949.

Plaintiffs assert that there may be at least 100 potential class members based on the number of certificates of deposit cashed in by McGuire. Already, 47 potential claimants have contacted counsel and 34 of these have signed contracts with counsel for representation. The record suggests that most class members can be identified from either the banks’ records, McGuire’s records, or the records from McGuire’s bankruptcy proceeding. Because McGuire operated in Vivian, Louisiana, most of the claimants are likely to be located in the North Louisiana area. It also appears from the record that most of the individual claims are for less than $10,000. As stated in an affidavit by Billy Guin, an attorney contacted about taking Ms. Smith’s case, it would not have been “economically feasible” for him to litigate her small claim, so he sought to involve other counsel to handle Smith’s claim along with others as a class action. The testimony of Mr. Graves, who was then age 91 and living in an assisted living facility, and |9Ms. Upchurch on behalf of her mother, Ms. Smith, who was then age 94 and no longer able to understand the legal proceedings, demonstrates that the potential class members are elderly and most likely in poor health with little ability and financial resources to pursue their individual claims. Ms. Upchurch testified that her mother, Ms. Smith, spent the last of her money to purchase the prepaid funeral services from McGuire.

Considering the facts and circumstances of this matter, we find that the plaintiffs’ proposed class action satisfies the numerosity requirement. Already, 34 individuals have sought to be represented, and the record suggests that the class size is likely to increase. That the class does not include greater numbers at present and that it appears to involve individuals in a discrete geographic area do not alone control whether numerosity is satisfied. Both the size of the individual claims and the financial resources of the class members are factors to be considered in determining whether numerosity is satisfied. These factors weigh strongly in favor of finding numerosity satisfied in this case wherein there appear to be significant challenges to the pursuit of individual claims by the elderly putative class members. In light of the factors mentioned, we find that there is a sufficient number of class members such that joinder of individual claims would be impracticable.

Commonality

As required by La. C.C.P. art. 591(A)(2), the plaintiffs must show that there are questions of law or fact common to the class. A common question is one which when answered as to one class member is answered as | into all. Marsh, supra; Howard, supra. The commonality test is not demanding and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members. Marsh, 42,176, p. 9, 957 So.2d at 908, and cases cited therein.

Plaintiffs argue that the trial court erred in finding that it would have to review each bank’s contracts to determine liability. They assert that the only question is whether the bank defendants are liable to the putative class members for having cashed the certificates of deposit without requiring a death certificate as required by law.

The law that the plaintiffs refer to is La. R.S. 37:861, which requires the seller of prepaid funeral services to deposit the amounts paid for such services into individual accounts in the joint name of the seller and purchaser for the exclusive use and benefit of the purchaser. La. R.S. 37:861(A)(l)(a). Specific to this matter, the statute states that the seller of prepaid funeral services or merchandise “may withdraw the funds only at the death of the purchaser by presentation of a death certificate copy and a certified funeral statement for the amount to be withdrawn, together with other requirements of the financial institution.” La. R.S. 37:861(A)(l)(a). Thus, the withdrawal of prepaid funeral funds has three requirements, namely, presentation of a copy of the death certificate, presentation of a certified funeral statement, and satisfaction of other requirements of the financial institution.

|nThe trial court has twice denied exceptions challenging whether the plaintiffs have a cause of action against the defendant banks under La. R.S. 37:861. Neither the merits of these exceptions nor the merits of the plaintiffs’ claims are before us for review. Our only concern in this procedural matter is the judgment denying class certification and, particularly, whether there are questions of law or fact common to the class. Plaintiffs are seeking recovery of their prepaid funeral funds stolen by McGuire. They allege that the banks became solidarily liable with McGuire by accepting the deposits from McGuire and then allowing him to withdraw the funds in violation of La. R.S. 37:861 and their contracts.

Whether the defendant banks are subject to the provisions of La. R.S. 37:861 and whether they allowed McGuire to close the certificates- of deposit or otherwise withdraw the prepaid funeral funds in violation of that statute are questions common to the class. The trial court erred in finding a lack of commonality based on the defendant banks having different contracts and policies and there being somewhat varied causes of action levied against them. Regardless of whether a certificate of deposit was written as one “POD,” “FBO” or “for,” the cause of action asserted by the plaintiffs is the same, and the same common questions exist regarding liability under La. R.S. 37:861. Resolution of these common questions will affect all of the putative class members. For these reasons, we find the commonality requirement satisfied.

11¿Typicality and Adequacy of Representation

To obtain class certification, the representative parties must have claims or defenses that, are typical of the claims or defenses of the class, and they must show that they will fairly and adequately protect the interests of the class. La. C.C.P. art. 591(A)(3) and (4).

Typicality means that the representatives’ claims must be a cross section of the claims of the class members. Howard, supra. Typicality is satisfied if the representatives’ claims arise out of the same event, practice, or course of conduct that gives rise to the claims of the class members and if the claims are based on the same legal theory. Marsh, supra.

While the claims of the plaintiffs and the putative class members do not arise out of the same event, the record shows that they arise from the same course of conduct or practice by McGuire and the defendant banks. This course of conduct or practice involves McGuire’s closure of accounts apparently without compliance with La. R.S. 37:861. The class members’ claims are based on the same legal theories, namely, noncompliance with La. R.S. 37:861 and violation of the banks’ certificate of deposit contracts or other applicable account contracts. We are not persuaded that typicality is lacking due to the fact that different banks’ contracts are involved. As previously stated, whether the bank account was one labeled “POD,” “FBO” or simply “for,” the underlying issue is whether the defendant banks were required to comply with La. R.S. 37:861. The record does not support the trial court’s finding that typicality is lacking.

Factors that may be considered in assessing whether the class representatives will fairly and adequately represent the class include whether they can demonstrate an actual injury, whether they possesses firsthand knowledge or experience of the conduct at issue, whether their interest in the litigation is significant enough relative to that of the other class members to ensure their conscientious participation, and whether they have interests that conflict with those of the other class members, such as different claims, defenses, or requests for additional or special relief.

Smith, Graves, and Hooper all claim actual injury, namely, the loss of their prepaid funeral funds due to the actions of McGuire and the defendant banks. Regions argues that because the plaintiffs’ funds were deposited at different banks, they do not have firsthand knowledge of the conduct at issue as it relates to each other or to the entire class. However, the plaintiffs’ testimony and depositions in the record show that none of them knew where McGuire deposited their prepaid funeral funds or had any contact with the banks relative to the accounts opened and closed by McGuire. The plaintiffs’ firsthand knowledge is of their dealings with McGuire when they purchased prepaid funeral services with the understanding that their money would be placed into an interest-bearing account to be withdrawn at their death. Each of the representative plaintiffs is seeking the same relief through this litigation, and the record does not show that they have interests that are in conflict with those of the putative class members.

For these reasons, we find that the requirements of typicality and adequacy of representation are satisfied.

Definition of the Class

The last requirement of La. C.C.P. art. 591 is that the class be defined objectively in terms of ascertainable criteria to allow the court to determine the constituency of the class for purposes of the conclusiveness of any judgment. The class definition requirement ensures that the class is not amorphous, indeterminate, or vague so that any potential class member can readily determine if he or she is a member of the class. Husband, supra.

According to the motion for class certification, plaintiffs seek to define the class as, “All individuals from whom William McGuire appropriated and converted funds collected by him for prepayment of funeral expenses.” The record shows that both the initial and amended complaints filed by plaintiffs include somewhat different proposed class definitions than the definition proposed in the motion for class certification. However, it is the motion for class certification that was denied by the trial court and that is before us for review. La. C.C.P. art. 592(A)(1) requires the proponent of the class to file a timely motion to certify the action as a class action. The law envisions a pleading that demands relief on behalf of a class and a separate motion seeking certification of the class. Sellers v. El Paso Industrial Energy, L.P., 08-403 (La.App. 5th Cir.2/10/09), 8 So.3d 723. Though the amended and supplemental petition filed after the motion for certification includes a different class definition, the motion for certification was not amended.

In light of the class definition sought by the motion for certification, we find no merit to the defendants’ complaint that the class definition would not exclude persons who died and received a funeral but whose funds were withdrawn by McGuire without presentation of a death certificate in violation of La. R.S. 37:861. Clearly, no conversion of the funds occurred in such instances, and no claim on behalf of such persons would be included in the class. The proposed class definition is neither amorphous, indeterminate, nor vague. It satisfies the requirements of La. C.C.P. art. 591(A)(5).

Being mindful that one should err in favor of, rather than against, maintaining a class action and having carefully reviewed the record in light of the applicable standard of review, we find that the trial court erred in concluding that the plaintiffs did not meet the burden of satisfying the criteria of La. C.C.P. art. 591(A) for maintaining a class action.

La. C.C.P. Art. 591(B) Analysis

Because the trial court found that the plaintiffs had not satisfied the requirements of La. C.C.P. art. 591(A), it did not consider whether the proposed class action fell under one of the categories set forth in La. C.C.P. 591(B). We must now conduct this analysis. The category applicable to this matter is La. C.C.P. art. 591(B)(3), which states:

11fi(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a)The interest of the members of the class in individually controlling the prosecution or defense of the separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against the members of the class;
(c) The desirability or undesirability of concentrating the litigation in a particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation.

A three-step analysis is generally used to assess whether common issues predominate. This analysis requires the court to identify the substantive elements of the cause of action, to consider the proof necessary to meet the plaintiffs’ burden of proof as to those elements, and to evaluate the alternative procedural mechanisms for adjudicating the case in terms of promoting judicial economy. Marsh, supra, citing Howard, 40,634, p. 33, 924 So.2d at 1264. The fact that each class member’s claim arose out of a separate transaction with the defendant is not necessarily dis-positive. Howard, supra. Even though a suit entails numerous individual issues, a single common issue may be the overriding one in the litigation. Id.

117Here, the plaintiffs’ primary cause of action is centered on La. R.S. 37:861. They assert that the defendant banks are liable to them with McGuire for the conversion of their funds because they did not require him to present a death certifícate or otherwise meet the statutory requirements before allowing him to withdraw their prepaid funeral funds. We disagree with the defendants’ argument that individual issues predominate because a determination of liability will require the court to consider their contracts, policies and procedures regarding each individual account. Having reviewed the exhibits offered in evidence, particularly the various bank records, we find the existence of individual issues concerning the banks’ contracts, policies, and procedures to be overstated. Each bank’s accounts, records, policies, and procedures will be substantially the same for the accounts opened or closed by each. The predominant issue will be whether the banks violated La. R.S. 37:861 and can be held liable to the individual plaintiffs on the basis of that provision.

As previously addressed, the putative class members are likely to be elderly individuals who will have difficulties pursuing individual claims. A class action will allow class representatives to pursue claims on behalf of those who cannot. The class members have suffered the same damages, namely, the loss of their prepaid funeral funds along with the loss of the security in knowing that their funeral arrangements had been made and paid for in full. No member appears to have an individual interest in controlling the litigation. Certifying the class will provide a fair and efficient adjudication of this controversy for both the plaintiffs and the defendants, 11swhose vigorous opposition to certification shows that they are up to whatever challenges a class action poses.

For these reasons, we find that the proposed class action fits the requirements of La. C.C.P. art. 591(B)(3).

CONCLUSION

For the forgoing reasons, the judgment sustaining American Bank and Trust Company’s peremptory exception is affirmed. The plaintiffs’ claims as to American Bank and Trust Company are dismissed. However, the judgment denying the plaintiffs’ motion for class certification is reversed, and the matter is remanded for further proceedings, including certification of the class as requested by the motion. One-third of the costs of this appeal is assessed against the plaintiffs, and the remaining two-thirds are to be divided between defendants Regions Bank and First Guaranty Bank.

JUDGMENT GRANTING PEREMPTORY EXCEPTION AFFIRMED.

JUDGMENT DENYING CLASS CERTIFICATION REVERSED.

MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . Acts 2008, No. 799, § 1 amended and reenacted Part II of Chapter 10 of Title 37, "Prepaid Funeral Services or Merchandise," which consisted of La. R.S. 37:861. As amended and reenacted, Part II of Chapter 10 of Tide 37 is now "Preneed Funeral Plans” and consists of La. R.S. 37:861 to 37:867. The new provisions became effective January 1, 2009.

      . Under La. C.C.P. art. 592(B)(2)(e), the notice of certification shall include a statement advising each class member that he may be required to take further action, such as submitting a proof of claim in order to participate in any recovery obtained by the class. The proof of claim requirement would preclude claims on behalf of persons who died and whose funds were withdrawn by McGuire without a death certificate, but who received a funeral provided by McGuire in accordance with their prepaid funeral agreement. Such claimants would be unable to show a proof of claim for conversion of the prepaid funeral funds and would be excluded from the class.