text:
    STATE of Louisiana in the Interest of D.M.
    No. 2011-CK-2588.
    Supreme Court of Louisiana.
    June 29, 2012.
   PER CURIAM.

_JjThe state filed a delinquency petition in the Juvenile Court for Orleans Parish charging defendant with unauthorized use of a motor vehicle, La.R.S. 14:68.4, and resisting an officer, in violation of La.R.S. 14:108. After a hearing conducted on January 18, 2011, the court adjudicated defendant delinquent on the basis of both charges and placed him with the Office of Juvenile Justice for a total of one year, suspended, with two years’ active probation. On defendant’s appeal of his felony-grade delinquent act of unauthorized use of a motor vehicle, a divided panel on the Fourth Circuit reversed the juvenile court’s adjudication and disposition order as to that charge on grounds that “[t]he juvenile-court judge was clearly wrong in adjudicating D.M. a delinquent because the evidence is insufficient to find beyond a reasonable doubt that D.M. knew that the vehicle in which he was a passenger was taken without the consent of its owner.” State in the Interest of D.M., 11-0462, p. 1 (La.App. 4th Cir. 11/2/11), 80 So.3d 18, 19. We granted the state’s application for review of the court of appeal’s decision and reverse for the following reasons.

As detailed in the evidence presented at the delinquency hearing, on October 22, 2010, Officer Blake Terrell received information that a silver Dodge Grand Caravan had been stolen from the 1000 block of Florida Street in Algiers, Louisiana. Terrell was patrolling the Fourth District in an unmarked police car and |ahe began searching for the stolen vehicle. Approximately two hours later, the officer observed the vehicle, occupied by four persons, and radioed for back-up units to assist him as he followed the van. When the marked cars arrived on the scene, Terrell activated his lights and siren but the van sped away and engaged the police in a chase through the Algiers Point area. The chase ended at the levee, where the vehicle stopped and the occupants spilled out and ran up the levee into the nearby woods, two running in one direction and two running in the opposite direction. Defendant was among them and Terrell observed that he exited from the rear seat on the driver’s side. The driver, who ran with defendant, had left the van in reverse and the vehicle backed into the police units arriving on the scene. Terrell reached into the van, put the transmission into park as there was no key in the ignition to turn the engine off, and then pursued the fleeing suspects. Within minutes, and with the aid of a K-9 dog, the police had defendant and the driver of the van in custody after a brief confrontation in which the dog bit defendant in the leg. Upon inspecting the van, Terrell observed that while the interior of the vehicle otherwise appeared undamaged, the top covering of the ignition lock cylinder had been pulled off and was simply resting unattached on the steering column. Although it was dark, and “hard to really get a good look at it,” and the officer was reluctant “to mess with the evidence before [the] Crime Lab did,” Terrell testified he sat in the driver’s seat and then went into the back seat to retrieve a weapon. From both vantage points, “you could tell that the vehicle had been tampered with in a way to get it started.” Terrell acknowledged that when he went into the back seat to secure the weapon, he did not actually sit behind the driver’s seat, and, at that time, no one was occupying the seat.

The owner of the vehicle testified at the hearing and confirmed that her vehicle had been taken without her permission. A photograph of the interior she [shad taken through the opened door on the front passenger side, introduced as an exhibit at the hearing, clearly showed the damage to the steering column, which did not amount to more than removal of the top cover of the ignition, exposing the ignition lock cylinder. However, when asked whether a passenger seated behind the driver could have seen the damaged steering column, the victim conceded she had never sat in the back seat and therefore could not venture an opinion one way or the other.

In adjudicating defendant delinquent at the close of the hearing, the juvenile court judge specifically noted that the defense’s own photographic exhibit clearly displayed the keyless, defeated ignition, “indicating that the driver of the car was not actually the owner of the car.” The court further noted that the initial attempt by the police to stop the vehicle had prompted a high-speed chase “which, then, led to the suspects fleeing the car and running from the police at that time.” Given the visible damage to the steering column and the flight of all of the occupants of the vehicle after the pursuit with the police, the court found sufficient evidence to adjudicate defendant delinquent on the basis of his unauthorized use of a motor vehicle.

The majority on the court of appeal panel had no dispute with the juvenile court judge that the photograph taken of the vehicle by its owner clearly established that “the steering-column damage was visible from anywhere in the front seat.” D.M., 11-0462 at 6, 80 So.3d at 21. However, given the testimony of Officer Terrell and the vehicle’s owner that they did not sit in the back seat on either side of the van, the majority observed that there was “no direct or circumstantial evidence that from D.M.’s position in the van he could have observed the only damage to the vehicle or that he could have observed whether the van was being operated without a key in the ignition.” Id., 11-0462 at 7, 80 4So.3d at 22. On the premise that the offense of unauthorized use of a motor vehicle required the state to prove more than defendant’s mere presence in the vehicle to establish that he was a principal in the offense because he knew, or reasonably should have known, the vehicle was operated without the owner’s permission, cf. State v. Bias, 400 So.2d 650, 652 (La.1981)(“[W]e construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent-”), the majority concluded that the state’s case turned on the question whether defendant’s flight and concealment constituted reliable circumstantial evidence of his “ ‘consciousness of guilt and, therefore, [ ] one of the circumstances from which the [fact finder] may infer guilt.’ ” D.M., 11-0462 at 7, 80 So.3d at 22 (quoting State v. Davies, 350 So.2d 586, 588 (La.1977)); see also State v. Wilkerson, 403 So.2d 652, 659 (La.1981).

To resolve the question, the majority reviewed the evidence under not only the due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), but also under a broader civil standard by which an appellate court may review both the facts and law, specifically, the trial court’s factual findings, for clear or manifest error, “to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.” D.M., 11-0462 at 8, 80 So.3d at 22. The source for the latter approach is this Court’s decision in State in Interest of Batiste, 367 So.2d 784, 788 (La.1979) (“Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence.... Accordingly, since the constitution does not provide otherwise, the scope of review of this Court in juvenile delinquency proceedings extends to both the law and the facts.”) (citations omitted). Both standards are highly deferential to the factual determinations made by the trier of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), (“[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”); State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983) (“It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review.”) (citation omitted). However, the majority observed that the “manifest-error” standard does not require an appellate court to review the evidence from the perspective of a hypothetical, pro-prosecution trier of fact, as does the Jackson due process standard, but “looks to this particular trier of fact” to determine “whether his or her decision that there was proof beyond a reasonable doubt is not clearly wrong and is reasonable.” D.M., 11-0462 at 9, 80 So.3d at 23.

Applying this “somewhat broader standard than the Jackson v. Virginia minimum standard,” id., the majority concluded that while “D.M.’s flight coupled with his presence in a stolen car most assuredly [gave] rise to the probable cause necessary for his arrest,” it did not “satisfy the high burden of proof necessary to establish the element of knowledge beyond a reasonable doubt.” Id., 11-0462 at 10, 80 So.3d at 24. Thus, “[j]ust as was done in Batiste, having applied this civil standard of review of facts and law,” the majority determined “that the juvenile court judge was clearly wrong in inferring from D.M.’s flight from the police that he knew beyond a reasonable doubt that the van was stolen.... and that he committed the delinquent act.” Id., 11-0462 at 11, 80 So.3d at 24.

Dissenting, Judge Dysart noted Officer Terrell’s statement on cross-examination, in response to a direct question by defense counsel, that he entered the rear passenger seat of the van from the driver’s side. Id., 11-0462 at 1, 80 6So.3d at 24 (Dysart, J., dissenting). For Judge Dysart, “[t]his testimonial evidence is sufficient to prove that the defendant could indeed see from his seat in the van that the steering column had been defeated, and therefore, knew the car was stolen.” Id. 'Thus, in Judge Dysart’s view, and applying the same “manifest error/clearly wrong standard enunciated in the majority’s opinion,” the evidence appeared “sufficient to affirm the adjudication of the trial court.” Id.

We agree with Judge Dysart’s reading of the record and thus subscribe to his conclusion that the state’s evidence was sufficient to sustain the juvenile court’s adjudication under either standard of review applied in the majority opinion. When first asked by defense counsel on cross-examination how he had gone into the back seat of the vehicle while waiting for the Crime Lab to arrive and process the scene, Officer Terrell stated that he “entered through the rear passenger side of the vehicle, the rear passenger seat, to retrieve the rifle .... you can get an angle from the back of the seat, that the steering column was defeated.” Officer Terrell’s reference to the “rear passenger side of the vehicle” prompted the majority’s observation that “the officer had climbed into the backseat and noted that from the passenger-side he could see the steering-column damage from an angle.” D.M., 11-0462 at 6, 80 So.3d at 21-22. The majority deemed that testimony significant because, in its view, there was no testimony by the officer that he was on the other side of the vehicle behind the driver’s seat where defendant had been sitting and, thus, there was no direct evidence that the damaged steering column was visible from that vantage point. However, unsure whether the officer had meant the rear passenger side or the rear passenger seat, defense counsel then asked Terrell directly, “And what side of the rear passenger did you enter from?” The officer replied, “The driver’s side.”

17Although the juvenile court judge did not make a specific finding of fact in this respect, he found the officer a credible witness and it was not manifestly or clearly wrong for the court to take the officer at his word that Terrell entered the backseat from the rear driver’s side and from that vantage point observed the damage to the steering column and the absence of a key in the ignition lock. The majority read Terrell’s testimony differently but it also acknowledged, as Judge Dysart implicitly reminded them, that under a civil standard of review, the court was not free to “disturb ‘reasonable inferences of fact’ even though we may feel that our ‘own evaluations and inferences are as reasonable.’” D.M., 11-0462 at 10, 80 So.3d at 23 (quoting Rosell, 549 So.2d at 844). A finding that Terrell entered the rear passenger seat from the driver’s side meant that anyone stepping into the vehicle through the rear, driver’s side door would have an opportunity to view the damaged steering column and the defeated, keyless ignition, as would anyone entering from the rear passenger side and then sliding over behind the driver’s seat. There was no direct evidence of how defendant entered the back seat of the vehicle, or for how long he was there, or whether he actually observed the broken steering column. However, while defense counsel hotly disputed whether anyone in the rear passenger seat on the driver’s side could have seen the damaged steering column and keyless ignition, counsel offered no innocent explanation for defendant’s flight and attempt at concealment in the woods and in the company of the driver, who had to have known that the vehicle was stolen, not even that defendant had simply panicked when the other occupants of the vehicle fled up the levee. It was therefore not manifestly wrong for the juvenile court judge to infer from defendant’s flight, concealment, and initial resistance to arrest, knowledge the vehicle had been stolen, if for no other reason than he had, in fact, observed the damage to the steering column and the keyless ignition, and for the court to | ^conclude that by riding around in the van with the other occupants, defendant had made himself a principal in the offense of unauthorized use of a motor vehicle, a finding that any rational trier of fact could make under the Jackson due process standard. Cf. State v. Joseph, 05-368, pp. 7-8, (La.App. 5th Cir. 1/17/06), 921 So.2d 1060, 1064 (defeated ignition with a fake key inserted in steering column wrapped in duct tape supported finding that defendant “saw the obvious signs of theft and knew the vehicle was stolen”); compare State v. Stevenson, 02-1152 (La.App. 4th Cir. 1/22/03), 839 So.2d 203, 206 (evidence insufficient to support conviction for unauthorized use of a vehicle: the occupants denied knowing the car was stolen and cooperated with the police in their investigation; and the driver had the vehicle keys); State in Interest of H.N., 97-0982, pp. 4-5 (La.App. 4th Cir. 7/8/98), 717 So.2d 666, 668 (evidence insufficient to support conviction for unauthorized use of a vehicle when there was no evidence of force entry, no broken glass or damage to the steering column, and a key was in the ignition when defendant entered the car).

The decision of the court of appeal is therefore reversed and the adjudication and disposition order of the juvenile court are reinstated.

COURT OF APPEAL DECISION REVERSED; ADJUDICATION AND DISPOSITION REINSTATED


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jennifer WINKLE, Individually, and on Behalf of all others similarly situated v. RELAY ADMINISTRATION BOARD and the Louisiana Public Service Commission.
    No. 2012-CC-0944.
    Supreme Court of Louisiana.
    June 29, 2012.
   PER CURIAM.

| plaintiffs filed the instant class action in the 19th Judicial District Court for the Parish of East Baton Rouge against defendants, seeking a refund of an $.11 per month fee on telephone bills. The proposed class was defined as “[a]ll Louisiana residents and businesses who paid one or more $1.11 telephone access line tax charges on their monthly phone bills, at any time between November 1, 1992, and April 1, 2002.”

The case was randomly allotted to Division E, presided over by Judge William Morvant. Upon plaintiffs’ motion, Judge Morvant recused himself, finding he was a potential class member. Plaintiffs filed separate and similar motions to recuse five of the remaining civil docket judges in the 19th JDC to whom the ease was subsequently reallotted. Each of the judges recused themselves.

Thereafter, the case was reallotted to Judge Janice Clark, the only remaining civil docket judge in the 19th JDC. Although plaintiffs declined to seek Judge Clark’s recusal, defendants filed a motion to recuse her. Plaintiffs opposed the motion, explaining that the recent case of Smith v. Bayer Corp., — U.S. -, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011) changed their position, and “called into question the basis for the prior recusals.”

The motion to recuse was referred to an ad hoc judge for hearing. The ad hoc judge ordered Judge Clark’s recusal, reasoning that she was interested in the cause or its outcome for purposes of La.Code Civ. P. art. 151(A)(4).

12Pefendants sought supervisory review, which the court of appeal denied, with one judge dissenting. Defendants now seek relief in this court.

La.Code Civ. P. art. 151(A)(4) provides a judge shall be recused when the judge is “interested in the cause or its outcome ... to such an extent that he would be unable to conduct fair and impartial proceedings” [emphasis added]. Applying this language, it is clear a mere finding that the judge is interested in the cause or its outcome is not sufficient to require the judge’s recusal; rather, there must be a finding the judge is interested to such an extent that he would be unable to conduct fair and impartial proceedings. Such an interpretation is consistent with the well-established jurisprudence of this court. See In re: Cooks, 96-1447 (La.5/20/97), 694 So.2d 892 (“the tantamount duty of a judge is to conduct fair and impartial proceedings”).

In the instant case, the evidence developed at the recusal hearing indicates Judge Clark’s potential interest in this case amounts to $13 in telephone charges over a period of ten years. In the absence of any evidence indicating the minimal amount at issue would affect a judge’s ability to be fair and impartial, recusal is not mandated under La.Code Civ. P. art. 151(A)(4).

In their application, plaintiffs acknowledge their earlier motions to recuse were based on erroneous legal grounds. Therefore, acting pursuant to our supervisory and administrative authority under La. Const. Art. V, § 5, we order this case returned to Division E, the division to which it was originally randomly allotted.

Accordingly, the writ is granted. The judgment granting recusal is reversed and set aside, and the case is hereby remanded for further proceedings to Division E of the 19th Judicial District Court for the Parish of East Baton Rouge.


text:
    STATE of Louisiana v. Karen HALL.
    No. 2012-K-0601.
    Supreme Court of Louisiana.
    June 29, 2012.
   PER CURIAM.

| granted. The trial court erred in granting defendant’s motion to quash and the court of appeal erred in ordering an evidentiary hearing to resolve the question of whether the state may convict and punish defendant in a single proceeding for both crimes alleged in the bill of information.

A defendant may raise a claim of double jeopardy before trial by way of a motion to quash, La.C.Cr.P. art. 532(6), as well as after trial by way of a motion in arrest of judgment. La.C.Cr.P. art. 859(6)(“if not previously urged”). However, when a double jeopardy claim arises in the context of multiple offenses allegedly committed in a single criminal episode involving a single evidentiary nexus and charged in the same bill of information or indictment, and the state has thus made no effort to prosecute the charges seria-tim, and a question arises as to whether the same evidence required to convict a defendant of one offense is also the same evidence required to convict him of the other crime, the court should defer ruling on a motion to quash until trial has fully developed the factual context of a claim 12that prosecution has implicated the double jeopardy prohibition of multiple punishments for the same offense. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984) (“While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution.”); cf. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”). In the event that the evidence at trial supports a claim that defendant has been punished in a single proceeding twice for the same offense, the court may then take appropriate action by granting the motion to quash and vacating the conviction on the less seriously punishable offense. See Ball v. United States, 470 U.S. 856, 861-64, 105 S.Ct. 1668, 1671-73, 84 L.Ed.2d 740 (1985) (“To say that a [defendant] may be prosecuted simultaneously for violation [of separate offenses] ... is not to say that he may be convicted and punished for two offenses .... [T]he only remedy consistent with the [legislative] intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions .... [which alone] is unauthorized punishment for a separate offense.”)(citing Hunter); State v. Dubaz, 468 So.2d 554, 556 (La.1985) (“Where multiple punishment has been erroneously imposed the proper ... procedure is to eliminate the effect of the less severely punishable offense.”).

The rulings below are therefore vacated and this case is remanded to the trial court for further proceedings under the original bill of information.


text:
    In re Charles Gary WAINWRIGHT.
    No. 2012-B-1392.
    Supreme Court of Louisiana.
    June 29, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his clients’ legal matters, failed to communicate with his clients, failed to refund unearned fees, mishandled client funds, engaged in conduct intended to disrupt a tribunal, and engaged in the practice of law while ineligible to do so. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Charles Gary Wainwright, Louisiana Bar Roll number 19858, be suspended from the practice of law for a period of eighteen months. It is further ordered that respondent either return unearned fees to his clients subject of the Petition for Consent Discipline or voluntarily participate in the Louisiana State Bar Association’s Fee Dispute Resolution Program regarding his fees.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The parties also proposed that respondent's suspension be followed by a period of probation. However, such issues, along with any other relevant factors, may be addressed if and when respondent applies for reinstatement. See In re: Welcome, 02-2662 (La.1/24/03), 840 So.2d 519; In re: Harris, 99-1828 (La.9/17/99), 745 So.2d 1172.


author: FREDERICKA HOMBERG WICKER, Judge. EDWARDS, C.J., FREDERICKA HOMBERG WICKER, Judge.

text:
    Katherine DeJean RICHARDSON, Patrick Jude DeJean and Romano Wholesale Liquor Company, Inc. v. CAPITOL ONE, N.A. and Hibernia National Bank and ABC Insurance Company and Diane Fennidy.
    No. 11-CA-30.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Rehearing Granted Nov. 28, 2011.
    Opinion on Rehearing March 13, 2012.

      William W. Hall, Attorney at Law, Me-tairie, LA, Patrick Hale DeJean, Attorney at Law, Marrero, LA, Philip E. O’Neill, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.
    Elaine Appleberry, Attorney at Law, Gretna, LA, Deirdre C. McGlinchey, Steve W. Rider, Angelina Christina, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| aPlaintiff/appelIant, Romano Wholesale Liquor Company, Inc. (the company), appeals the trial court’s judgment granting the exception of prescription, thereby dismissing its action for the loss, mismanagement, or conversion of over $1.3 million deposited into its corporate account at Hibernia National Bank, now Capital One N.A. (Capital One). Capital One answered the appeal and has asked this Court to strike the trial court’s finding of fact that the corrected deposit slip, used as the basis for this claim, is a legitimate Hibernia National Bank corrected deposit slip. For the reasons that follow, we affirm the judgment granting the exception of prescription but deny Capital One’s request to overturn the trial court’s finding of fact.

LFacts and Procedural Background

Mr. Marcel DeJean and his wife, Mrs. Felicia Romano DeJean, incorporated Romano Wholesale Liquor Company, Inc. in 1992. The initial report shows Mr. DeJe-an as president and Mrs. DeJean as the secretary/treasurer. Shortly after incorporation, Mrs. DeJean became ill and in need of a companion. Katherine — Mr. and Mrs. DeJean’s daughter — hired Mrs. Marie Bourg Troulliet to care for her mother until her death in 1994. Not long after Mrs. DeJean died, it also became necessary for Mr. DeJean to have a companion. Mrs. Troulliet was subsequently rehired for that purpose. Mr. DeJean moved into Mrs. Troulliet’s home but maintained his separate home nearby.

Mr. DeJean continued to run the company with the help of his two children— Katherine and Patrick. The testimony indicates that Mr. DeJean exclusively handled Romano Wholesale’s banking until 1998 when he developed congestive heart failure and was forced to use either a wheelchair or a cane. From 1998 until his death in 2001, Mrs. Troulliet always accompanied Mr. DeJean on bank visits. Mrs. Troulliet testified that in February of 1999, Mr. DeJean asked her to drive him to his home where he instructed her to go into the attic to retrieve a briefcase. Mrs. Troulliet complied and brought the briefcase to Mr. DeJean. When he opened the briefcase, Mrs. Troulliet saw that it was filled with cash. Mrs. Troulliet asked him how much money was in the briefcase, to which he responded, “it’s over a million.” Mr. DeJean counted the cash and completed a deposit slip for Romano Wholesale’s account. The next morning, Mrs. Troulliet drove Mr. DeJean to the bank to deposit the cash.

| ¡When they arrived at the bank, the branch manager, Ms. Diane Fennidy, the person who traditionally helped Mr. DeJe-an with his banking, took the deposit. Ms. Fennidy took the briefcase into another room unaccompanied by either Mr. DeJe-an or Mrs. Troulliet. Ms. Fennidy returned with a “corrected deposit slip” which showed that the prepared deposit slip was off by $18.13. Nevertheless, the total cash deposit reflected on the corrected deposit slip was in the amount of $1,387,595.13. Mrs. Troulliet testified that Mr. DeJean never told his children about the deposit — Katherine and Patrick corroborated that fact. Mrs. Troulliet further testified that she asked Mr. DeJean whether he intended to tell his children about the deposit. He indicated he might tell his daughter, but that it was “none of their business.” Katherine, Patrick, and Mr. DeJean continued to run the company together until Mr. DeJean’s death in 2001. The testimony indicates that prior to his death, Mr. DeJean continued to handle Romano Wholesale’s banking, including making deposits and reviewing bank statements.

Seven years after Mr. DeJean’s death, Katherine was cleaning out her father’s house in November 2008 when she found the briefcase with the corrected deposit slip from Hibernia National Bank dated February 7, 1999. Katherine checked the bank records and found that the deposit had never been posted to Romano Wholesale’s account. Thereafter, Katherine, Patrick, and Romano Wholesale filed suit against Capital One, ABC Insurance Co., and Ms. Fennidy for conversion of $1,387,595.13. The petition also stated causes of action in breach of fiduciary duty and unjust enrichment.

| fiCapitaI One excepted to the petition on the grounds of prescription and no right and no cause of action. Ms. Fennidy filed similar exceptions. Katherine, Patrick, and Romano Wholesale did not oppose the exception of no cause of action for breach of fiduciary duty and unjust enrichment and subsequently consented to a judgment on those issues with prejudice. Katherine and Patrick also consented to a judgment sustaining Capital One’s exception of no right of action which dismissed their claims with prejudice. Therefore, Romano Wholesale was the only remaining plaintiff and the only cause of action remaining was conversion of loss of the deposit in excess of $1.3 million in cash. The trial on Capital One’s exception of prescription against Romano Wholesale was heard on August 25, 2010. After the hearing, the trial court granted the exception and dismissed Romano Wholesale’s claim.

Romano Wholesale appeals the trial court’s judgment, arguing that the trial court erred in applying the bank statement rule to determine that its claim had prescribed and further erred by not applying the doctrine of contra non valentem. Capital One answered the appeal, seeking to strike the trial court’s finding of fact that the corrected deposit slip, used as the basis for this claim, is a legitimate Hibernia National Bank corrected deposit slip.

Discussion

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Waguespack v. Judge, 04-0137, p. 4 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090, 71092. (citation omitted). However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Id. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

Romano Wholesale alleges conversion and specifically states that the losses and damages it sustained “were caused by the negligence, fault, acts and omissions of the defendant, Fennidy.” A conversion action against a bank is subject to a one-year liberative prescriptive period. Matthews v. Bank One Corp., 44,818, p. 6 (La.App. 2 Cir. 10/28/09), 25 So.3d 952, 955. Thus, Romano Wholesale’s conversion claim prescribed one year after the alleged conversion occurred. Its suit, however, was not filed until ten years later. Because prescription is evident on the face of the petition, Romano Wholesale bears the burden of proving that its claim has not prescribed.

To meet its burden, Romano Wholesale relies on the doctrine of contra non valen-tem. This principle is based on the equitable notion that no one is required to exercise a right when it is impossible for him or her to do so. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 355 (La.1992). (citation omitted).

Under Louisiana jurisprudence, there are four general situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not | «known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. In re Manus, 10-82, p. 4 (La.App. 5 Cir. 5/25/10), 40 So.3d 1128, 1130. (citation omitted). Romano Wholesale argues that situations three and four are applicable here.

Under situation three, Romano Wholesale must show that Capital One engaged in some act which prevented it from availing itself of its cause of action. Under situation four, Romano Wholesale must show that it did not know or could not have reasonably known about the conversion. Romano Wholesale' argues that neither Katherine, Patrick, or Mr. DeJean had reason to believe a conversion occurred because the funds were accepted by Capital One’s branch manager and verified in the corrected deposit slip.

The testimony in this case indicates that Mr. DeJean, as Romano Wholesale’s corporate president, deposited $1,387,595.13 into the corporate account in February of 1999. After making that deposit, Mr. De-Jean continued to run the company, including handling the banking and reviewing the bank statements, until his death in October 2001. The testimony also shows that Mr. DeJean never mentioned the deposit or the fact that the bank statements failed to reflect the deposit to either of his children.

The Louisiana Supreme Court stated, in Martin v. Schwing Lumber & Shingle Co., Inc. (1955), 228 La. 175, 81 So.2d 852, 854, that “a corporation is bound by the knowledge acquired by its .officers or agents relating to its affairs and business.” Hence, a corporation is presumed to know what each officer knows. Therefore, Romano Wholesale was presumably aware that it deposited $1,387,595.13 into its corporate account and that such deposit was never reflected on its bank statement.

|9We, therefore, find that the doctrine of contra non valentem is inapplicable here. Capitol One did not perform any act that would have prevented Romano Wholesale from availing itself of its cause of action. In fact, Capitol One took proactive measures which would have allowed Romano Wholesale to discover the missing deposit when it continued to mail monthly bank statements to its customer. Therefore, this assignment is without merit.

Romano Wholesale also argues that the trial, court erred in relying on the bank statement rule to find its claim had prescribed. The bank statement rule applies to unauthorized signatures or alterations from a customer’s account. See UCC 4-406. That is not what occurred here. To the extent that the bank statement rule was implicated, the trial court erred. It is unclear, however, that that is what actually occurred here. The judgment seems to say that Capital One did not attempt to conceal any wrongdoing and had Mr. De-Jean reviewed the monthly bank statements, the missing deposit could have been easily discovered.

Finally, Capital One has asked this Court to strike the following factual finding the trial court made:

Marcel DeJean, with the assistance of Mary Bourg, made a cash deposit into the Company’s bank account at Hibernia National Bank on Saturday, February 6, 1999, in the sum of $1,387,595.13, and obtained a legitimate Hibernia National Bank corrected deposit slip for that sum.

The Louisiana Supreme Court, in Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98, set forth the standard of review for a trial court’s factual finding:

[t]he appropriate standard for appellate review of factual determinations is the manifest error — clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety, (citation omitted) Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous, (citation omitted).

ImThe record supports the trial court’s finding that the deposit slip was a legitimate Hibernia National Bank corrected deposit slip. Ms. Barbara Decorte, Hibernia’s assistant branch manager in 1999, testified at the hearing and identified the corrected deposit slip as an authentic document. She further testified that she knew Mr. DeJean as a regular customer. Mrs. Troulliet testified that she saw the deposit slip in February 1999, and while she could not be certain, she stated that it looked like the one Mr. DeJean received on the day of the deposit.

Given the testimony, we find that the trial court’s factual finding that the document was a legitimate Hibernia National Bank corrected deposit slip was not manifestly erroneous.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.

EDWARDS, C.J., dissents.

EDWARDS, C.J.,

dissents.

hi disagree, in part, with the majority opinion in that I find merit in the company’s argument that the trial court incorrectly relied on the “bank statement defense” set forth in Louisiana’s Uniform Commercial Code, specifically La. R.S. KM-JOdic), which requires a bank customer to exercise reasonable promptness in examining a bank statement.

It has been well established that a bank deposit creates a creditor-debtor relationship which is contractual in nature. The articles dealing with deposits are not applicable because a bank deposit does not involve the restoration of the identical object tendered. Furthermore, an essential condition of a deposit is that the thing deposited can be identified.

Mr. DeJean relied on a valid deposit slip issued to him by the bank. I believe that the obligation to check the bank statements relied upon by the bank does not apply to deposits. As the creditor in the contractual relationship, the company had the right to demand the payment of the amount of the deposit at any time. Because the bank, as the debtor in this relationship, refused to pay out the 12amount of the deposit to the order of the company on the first request made in 2008, this action was timely brought.

I would reverse the trial court on the issue of prescription.

ON REHEARING

FREDERICKA HOMBERG WICKER, Judge.

laThis case is before the Court on the plaintiff/appellant’s, Romano Wholesale Liquor Company, Inc. (the “company”), Application for Rehearing. In our original opinion dated June 14, 2011, we affirmed the trial court’s judgment wherein it found that the company’s claim against the defendant/appellee, Capital One, N.A., had prescribed. Approximately one month after rendering our opinion, however, the company filed its Application for Rehearing. The application alleged that on July 13, 2011, Patrick Jude DeJean discovered a green money bag in a- fifing cabinet at the company’s main office that contained a letter from Ms. Diane Fennidy which explained what happened to the deposit Marcel DeJean made on February 7, 1999. The company contends that the letter constitutes newly |4discovered evidence and requests that this Court remand the matter to the district court. For the reasons discussed below, we vacate our opinion rendered on June 14, 2011, dismiss the appeal, and remand this matter to the district court for a hearing to determine whether the letter constitutes newly discovered evidence and for other proceedings as necessary.

In its September 1, 2010 judgment, the district court addressed Capitol One’s Exceptions of Prescription, No Right of Action and No Cause of Action which had come before the court for hearing on August 25, 2010. In that judgment, the district court specifically ruled upon the exception of prescription but did not to rule upon the exceptions of no right of action and no cause of action. In fight of the district court’s ruling on the exception of prescription, the exceptions of no right and no cause of action presumably became moot. The trial court’s September 1, 2010 judgment states “[t]his matter came before the court on defendant’s Exceptions of No Right of Action, No Cause of Action and Prescription....” (emphasis added). The judgment further stated, “plaintiffs do not oppose defendants’ exceptions of no cause and no right of action.” Although the judgment recognizes that the plaintiffs did not oppose the exceptions of no cause and no right of action, the decretal language is silent on the issue. The judgment speaks only of the exception of prescription. Specifically, it provides, “IT IS ORDERED ADJUDGED AND DECREED that the defendant’s Exception of Prescription is hereby maintained, dismissing plaintiffs petition.” The only trial court action complained of on this appeal was the grant of the exception of prescription.

On rehearing, however, the company argues that the letter, which it alleges is newly discovered evidence, calls into question our previous determination that the doctrine of contra non valentem is inapplicable in this case because the company was presumably aware that $1,387,595.13 was deposited into its | .^corporate account. Appellant also argues that the allegedly newly discovered evidence establishes that Katherine DeJean Richardson and Patrick Jude DeJean have a right of action in this matter. We note, however, that neither Katherine DeJean Richardson nor Patrick Jude DeJean were parties to this appeal.

Generally, courts of appeal are constrained to review only those issues which were submitted to the trial court. See Uniform Rules — Courts of Appeal, Rule 1-3. Moreover, courts of appeal are further constrained to consider only those documents which were offered, accepted, and introduced into evidence at the trial level and have become a part of the record. Jackson v. United Serv. Auto. Ass’n Cas. Ins. Co., 08-0333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 515 (“evidence not properly and officially offered and introduced cannot be considered on appeal, even if the evidence is physically placed in the record.”). Obviously, the Diane Fennidy letter meets neither requirement because it was not reviewed by the trial court nor entered into evidence below. So, before the contents of the letter can be considered by this court, it must be determined whether, as a matter of law, the document constitutes “newly discovered evidence.” Furthermore, the letter may not be considered here unless it becomes part of the record lodged. In the first instance, the trial court should make the determination whether the letter constitutes newly discovered evidence and then whether it should be admitted into evidence.

Considering that the trial court did not rule on the exceptions of no right and no cause of action, those exceptions are arguably still pending before the district court. Thus, any ruling by this Court regarding the letter’s status as “newly discovered evidence” may serve as an advisory opinion. Such opinions are implicitly prohibited by the Louisiana Constitution. See State in Interest of C.W., 97-1229 (La.App. 5 Cir. 4/13/98), 712 So.2d 245, 246. Therefore, we vacate our |fiopinion rendered on June 14, 2011, dismiss the appeal and remand the matter to the district court for a hearing on the question of whether the letter constitutes newly discovered evidence and for other proceedings consistent with this opinion. We reserve the parties right to re-file the appeal thereafter.

JUNE 14, 2011 OPINION VACATED; APPEAL DISMISSED; CASE REMANDED TO THE DISTRICT COURT FOR HEARING AND OTHER PROCEEDINGS AS NECESSARY.

      . In 2001, a federal indictment was issued against Diane Fennidy, charging her with bank fraud that occurred between January of 1999 and February of 2001. The indictment charges that Ms. Fennidy prepared and submitted fraudulent loan documents, including applications, promissory notes, assignment of deposit account forms and boarding data that totaled $257,641 in losses to Hibernia Bank. Ms. Fennidy pled guilty to the charges on January 28, 2004.

      . If a bank sends or makes available a statement of account or items pursuant to Subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.

      . Miller v. Bank of New Orleans, 426 So.2d 1382 (La.App. 4 Cir.1983).

      . Id.

      . I agree with the analysis and conclusion in the majority opinion that the record supports the trial court’s finding that the deposit slip was a legitimate Hibernia National Bank corrected deposit slip.


author: HIGGINBOTHAM, J.

text:
    Assistant Chief Livingston Parish Fire Protection District 5, Brian Cecil BALLARD v. LIVINGSTON PARISH FIRE PROTECTION DISTRICT 5; Joe Koczrowski, President; Mark Cheairs, Vice President; Jim Lieux, Secretary; John Spink, Board Member.
    No. 2011 CA 1053.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 11, 2012.

      Donna U. Grodner, Marcus J. Plaisance, Baton Rouge, LA, for Plaintiff/Appellant, Brian Cecil Ballard.
    Eric L. Pittman, Brian C. Dufour, Den-ham Springs, LA, for Defendants/Appel-lees, Livingston Parish Fire Protection District 5; Joe Koczrowski, President; Mark Cheairs, Vice President; Jim Lieux, Secretary; and John Spink, Board Member.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| ¿This suit concerns a terminated fireman’s claims against his former employer, a fire protection district. The trial court denied and dismissed all of the fireman’s claims on the grounds that the fireman was not entitled to the protections of the Louisiana civil service law. Finding that a system of classified fire and police civil service has been constitutionally created and established, and that this system is constitutionally required to apply to all fire protection districts operating a regularly-paid fire department, we reverse the judgments denying the fireman’s claims, grant the fireman’s partial judgment declaring that the classified civil service system for firemen applies to this particular fire protection district, and remand this matter to the trial court.

FACTS AND PROCEDURAL HISTORY

Brian C. Ballard (“Ballard”) began working as a volunteer fireman for the Livingston Parish Fire Protection District No. 5 (“FPD No. 5”) in 1986. In 1991, Ballard became the assistant fire chief of FPD No. 5, but he still worked in a volunteer capacity. In 2002, however, Assistant Fire Chief Ballard began to receive a regularly-paid weekly salary as a full-time employee of FPD No. 5. During the pertinent time period in August 2008, FPD No. 5 operated with three full-time and two part-time paid employees and approximately 70-80 volunteer firemen. There are seven fire protection districts in Livingston Parish, but only one of the seven, FPD No. 4, participates in the classified civil service system for ffremen, as set forth in La. R.S. 33:2531, et seq. FPD No. 5 includes four fire stations covering twenty-six square miles outside the City of Denham Springs, Louisiana. FPD No. 5 had originally not been subject to Louisiana’s classified civil service system for firemen.

On August 25, 2008, Ballard was notified by letter that the governing five-member board of directors (board) of FPD No. 5 was holding a special meeting scheduled for 7:00 p.m. the next day, on August 26, 2008, “to discuss personnel |smatters” pertaining to him. At the beginning of the meeting, the board inquired as to whether Ballard would like to convene in an executive closed-door session. Ballard declined and the, board unanimously decided to terminate him, effective immediately. Ballard was not notified of any investigation prior to his termination, he was never charged with any violation regarding his job performance or conduct, he was given no reason for his termination, and he was not given an opportunity to call witnesses or to have counsel present at the meeting.

On September 11, 2008, Ballard filed a petition for summary proceeding and notice of appeal in the 21st Judicial District Court (the “trial court”), naming FPD No. 5 and its individual board members as defendants. Ballard sought a declaration from the trial court that FPD No. 5 had violated his procedural due process rights, which were protected under the state civil service law applicable to FPD No. 5. Ballard further alleged that his termination was an absolute nullity, and that he was, therefore, owed back and future salary and benefits from the date that he was wrongfully terminated. He also asserted that FPD No. 5 violated numerous other state laws pertaining to minimum salary, maximum hours, sick leave, vacation, and holiday pay rates, and that FPD No. 5 failed to follow its own administrative rules and regulations regarding disciplinary action and termination.

The trial court held a hearing on January 12, 2009, where the parties stipulated that the sole issue to be determined was whether FPD No. 5 was required to create a civil service board to administer a system of classified fire civil service for paid employees pursuant to Article X, Section 16 of the Louisiana Constitution. The application of that constitutional provision turned on whether FPD No. 5 operated a “regularly[-]paid fire department.” The trial court signed a judgment on April 21, 2009, declaring that FPD No. 5 was not a regularly-paid fire department and thus, FPD No. 5 was “not required to create and establish a system of classified civil service.” The next day, the trial court denied Ballard’s request for a ruling on his remaining claims. Subsequently, Ballard filed a motion for summary |4judgment on the remaining issues, and the trial court signed a final judgment denying and dismissing, with prejudice, all of Ballard’s procedural due process and payment claims against FPD No. 5 and its board members on August 26, 2010. Ballard appeals the dismissal of his claims, as well as the trial court’s initial ruling that FPD No. 5 was not a regularly-paid fire department subject to the classified civil service law for firemen.

LAW AND ANALYSIS

Initially, we note that, although the April 21, 2009 judgment denying Ballard’s request that the trial court declare that FPD No. 5 was required to participate in a classified fire civil service system was interlocutory, Ballard is now entitled to seek review of all adverse interlocutory judgments that are prejudicial to him or that involve the same or related issues, in addition to the review of the August 26, 2010 final judgment dismissing all of his claims with prejudice. See Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552 (La. App. 1st Cir.10/4/11), 77 So.3d 389, n. 11; State ex rel. Div. of Admin., Office of Risk Management v. National Union Fire Ins. Co. of Louisiana, 2010-0689 (La.App. 1st Cir.2/11/11), 56 So.3d 1236, 1242 n. 6, writ denied, 2011-0849 (La.6/3/11), 63 So.3d 1023; Judson v. Davis, 2004-1699 (La. App. 1st Cir.6/29/05), 916 So.2d 1106, 1112, writ denied, 2005-1998 (La.2/10/06), 924 So.2d 167. Thus, we will consider whether the trial court correctly determined that FPD No. 5 was not a regularly-paid fire department, and was, therefore, not required by law to participate in a system of classified fire civil service.

Article X, Section 16 of the Louisiana Constitution of 1974 provides, in pertinent part, that a system of classified fire and police civil service is created and established, and that this system shall apply “to all ... fire protection districts operating a regularly[-]paid fire department.” Additionally, La. R.S. 33:2531 | ¡¡expressly provides that “[permanent appointments and promotions for paid firemen ... shall be made only after certification pursuant to a general system based upon merit, efficiency and fitness.... ” The constitutional and statutory scheme mandating a system of classified civil service for fire protection districts operating a regularly-paid fire department does not contain a size requirement. See La. Const, art. X, § 16; La. R.S. 33:2531, et seq.

The only relevant jurisprudence regarding fire protection districts with a large number of volunteer firemen is found in France v. East Central Bossier Fire Protection District No. 1, 44,058 (La.App.2d Cir.2/25/09), 4 So.3d 959, writ denied, 2009-0726 (La.5/15/09), 8 So.3d 589. In France, the second circuit held that the civil service system was mandated for a fire protection district operating with 60-80 volunteers and four full-time paid firemen. Id., 4 So.3d at 967. Further, our research has revealed several attorney general opinions determining that one full-time employee paid by a fire protection district constitutes a regularly-paid fire department. See Attorney General Opinions 01-379, 98-267, 95-37, and 93-728(A). And although the opinions issued by the attorney general are merely advisory and not binding, the courts of this State have recognized their persuasive authority. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 753 n. 11.

We agree with the second circuit’s reasoning and analysis in France, as well Ras the pertinent attorney general opinions. Moreover, we conclude that FPD No. 5 clearly operates a regularly-paid fire department by virtue of its employment of three full-time and two part-time paid employees. Thus, the constitutional and statutory provisions requiring a system of classified fire civil service, as well as minimum wages, sick leave, annual vacation, and holidays is mandated for FPD No. 5. See France, 4 So.3d at 967. See also Attorney General Opinion 01-379. The investigation and discharge of a full-time paid fireman employed by a fire protection district must conform to the procedural due process requirements provided in the classified fire civil service law. See La. Const. Art. X, § 16; La. R.S. 33:2531, et seq.

CONCLUSION

Based on the foregoing, we reverse the April 21, 2009 judgment, which found that the Livingston Parish Fire Protection District No. 5 was not required to create and establish a system of classified civil service for its regularly-paid firemen. We also reverse the August 26, 2010 judgment dismissing all of Brian C. Ballard’s claims with prejudice. We grant partial judgment in this summary proceeding in favor of Brian C. Ballard, declaring that the classified fire civil service system of La. R.S. 33:2531, et seq., shall apply to the Livingston Parish Fire Protection District No. 5 and to any action taken regarding the employment of Brian C. Ballard. This case is remanded for further proceedings consistent with this ruling and for the trial court’s determination of Brian C. Ballard’s remaining claims regarding his termination and compensation issues pursuant to La. R.S. 33:1991, et seq.

Costs of this appeal in the amount of $1,944.00 are assessed to the Livingston Parish Fire Protection District No. 5 in accordance with La. R.S. 13:5112.

JUDGMENTS REVERSED. PARTIAL JUDGMENT GRANTED. REMANDED.

      . Ballard previously attempted to have the April 21, 2009 interlocutory judgment reviewed in an application for supervisory review, which this court denied on February 17, 2010.

      . We factually distinguish the fifth circuit case, Heintz v. City of Gretna, 96-555 (La.App. 5th Cir. 11/26/96), 683 So.2d 926, 927-928, writ denied, 97-0145 (La.3/7/97), 689 So.2d 1379, because that case did not involve a fire protection district, but instead was a volunteer fire department that independently contracted its services with a municipality, and as such, the city did not operate a regularly-paid fire department. Similarly, the supreme court vacated this court’s opinion in Marshall v. West Baton Rouge Parish Fire Protection District No. 1, 2007-1065 (La.App. 1st Cir.5/2/08), 991 So.2d 492, 496, writ granted, 2008-1576 (La.1/9/09), 998 So.2d 85, where this court found that a fire protection district that had contracted its services with a city was operating a regularly-paid fire department, such that it was required to create a classified civil service system for its firefighters. After vacating our opinion, the supreme court remanded the matter to the trial court for a determination of what entity actually employed the plaintiff and what entity actually operated the fire protection services in the city. In the case sub judice, there is no question regarding Ballard’s employer, which is undisputedly FPD No. 5, as is clearly reflected on Ballard's Form W-2 Wage and Tax Statement in the record.


text:
    STATE of Louisiana, Applicant v. Zach T. GREEN, Respondent.
    No. 47,176 KW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 2012.

      Jerry L. Jones, District Attorney, John T. Pham, Assistant District Attorney, for Applicant.
    Pierre & Pierre, Monroe, LA, by James Rodney Pierre, for Respondent.
    Before GASKINS, MOORE & SEXTON (Pro Tempore), JJ.
   JjWIilT GRANTED AND MADE PEREMPTORY; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

The state seeks review of the trial court’s granting of the defendant’s motion to suppress blood evidence seized pursuant to a warrant. The trial judge excluded the blood sample evidence based on his finding that there was not strict compliance with the statutory law on collecting blood samples, i.e., the probable cause affidavit contained the name of an individual other than the defendant, the person collecting the sample was not a phlebotomist and the defendant was not afforded his right to refuse the collection of the sample as provided in La. R.S. 32:661. For the following reasons, the trial court’s ruling excluding blood evidence seized from the defendant pursuant to a warrant is hereby reversed. The matter is remanded to the trial court for further proceedings.

The blood sample taken from the defendant was withdrawn pursuant to a warrant issued based on a probable cause affidavit. The affidavit submitted in support of the warrant application inadvertently contained in several places the name of an individual not associated with the case. The attesting officer utilized a template to generate the affidavit and failed to change the name of the accused to |2the defendant’s name in several places. The affidavit, however, also contained the name, date of birth and address of the defendant, sufficiently describing the defendant as the person from whom evidence was being sought. In addition, the search warrant contained only the name of the defendant. Since it is apparent from the four corners of the affidavit that the defendant was the individual from whom the evidence was to be seized, the mistaken references to the other individual are not fatal to the affidavit.

Next, the trial court erred in determining that Captain David May, a certified emergency medical technician, was not qualified to withdraw the blood sample from the defendant. In 2007, prior to the commission of the instant offense, La. R.S. 32:664 was amended to expand the list of persons qualified to withdraw blood for the purposes of determining alcohol content or presence of a controlled dangerous substance to include emergency medical technicians. Captain May, therefore, was qualified in accordance with La. R.S. 32:664, to withdraw blood evidence.

Finally, the defendant was required to submit to giving a blood sample because this search was made pursuant to a valid search warrant. A judge may issue a search warrant authorizing the search of a person for bodily samples to obtain deoxy-ribonucleic acid (DNA) or other bodily samples. La. C. Cr. P. art. 163.1. The right to refuse chemical testing under La. R.S. 32:661, and circumvent the implied consent created by La. R.S. 32:666(A)(2), does not supercede a validly obtained search warrant for bodily fluids under art. 163.1. When the extraction of blood from an individual for alcohol testing without the actual consent of the individual is done with probable cause and in a reasonable manner, there is no violation of constitutional guarantees of due process and against self-incrimination and unreasonable search and seizure. State v. Graham, 278 So.2d 78 (La.1973). Here, the judge found that probable cause existed justifying the issuance of the search warrant to obtain the blood sample from the defendant for alcohol testing. The defendant cannot refuse to submit to the valid search warrant.

Based on these findings, the writ of supervisory review is granted. The trial court’s ruling excluding the blood kit and result of the analysis is hereby reversed. The matter is remanded to the trial court for further proceedings.


text:
    Eugenie TOBIN, Ellis D. Brent, Jr., Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, Venese Machelle-Charity Morgan v. Governor Bobby JINDAL, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents.
    No. 2011 CA 0838.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.
    See also, 91 So.3d 329, 2012 WL 600805.

      Cleo Fields, Baton Rouge, LA, Katrina R. Jackson, Monroe, LA, for Plaintiffs Appellants, Eugenie Tobin, Ellis D. Brent, Jr, Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, Venese Machelle-Charity Morgan.
    James D. “Buddy” Caldwell, Attorney General, Uma M. Subramanian, Katherine K. Green, Asst. Attorneys General, Baton Rouge, LA, Attorneys for Defendants-Ap-pellees, Governor Bobby Jindal, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

1 ¡.This case is one of two appeals from the same proceeding. In this particular appeal, hereafter referred to as “Tobin I” plaintiffs seek review of the trial court’s denial of their request for the issuance of a preliminary injunction. Finding that no justiciable issues remain, we dismiss this appeal as moot.

FACTS AND PROCEDURAL HISTORY

During the 2010 Regular Legislative Session, the Louisiana State Senate adopted Senate Resolution 128 (SR 128), which directed defendant, the Louisiana Board of Regents (the Board), to “study the provision of public postsecondary educational opportunities in the New Orleans region, ... and formulate a plan that will make optimal use of all available ... resources, ... and which will allow each student attending such institutions to successfully and efficiently pursue his or her chosen academic path.” The Board was also directed by SR 123 to “submit a written report of its findings and recommendations to the Senate Committee on Education and the House Committee on Education, [no] later than March 1, 2011.”

The Board began to conduct a study of the issues set forth in SR 123, as well as the possible merger, consolidation, and transfer of New Orleans region institutions from one system to another. One of the scenarios considered by the Board was the potential merger of Southern University at New Orleans (SUNO) with the University of New Orleans (UNO), hereafter referred to as the “SUNO-UNO merger.”

^Plaintiffs are all students at institutions in the Southern University System. On February 14, 2011, plaintiffs filed suit against the Board and Louisiana Governor Bobby Jindal, in his official capacity, seeking a declaratory judgment, injunctive relief, and a temporary restraining order (TRO). Plaintiffs sought to enjoin and prohibit the Board from taking any and all actions relating to any proposed study of the SUNO-UNO merger, because plaintiffs alleged that the Board’s racial and gender composition (as appointed by the Governor) was unconstitutional, and therefore violated their alleged constitutionally-protected property interests in a higher education. The trial court held a hearing on plaintiffs’ request for a preliminary injunction on February 24, 2011. Immediately after the hearing, the trial court denied the preliminary injunction and issued extensive written reasons for judgment, essentially concluding that plaintiffs failed to prove the necessary elements for issuance of a preliminary injunction under La. C.C.P. art. 3601. Plaintiffs now appeal the trial court’s February 24, 2011 judgment.

LAW AND ANALYSIS

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties, pending a trial on the merits. Acadian Ambulance Service, Inc. v. Parish of East Baton Rouge, 97-2119 (La.App. 1st Cir.11/6/98), 722 So.2d 317, 322, writ denied, 98-2995 (La.12/9/98), 729 So.2d 4583. Although the judgment on the preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612; Piazza’s Seafood World, LLC v. Odom, 2007-2191 (La.App. 1st Cir.12/23/08), 6 So.3d 820, 826.

Generally, plaintiffs seeking issuance of a preliminary injunction bear the burden of establishing by a preponderance of the evidence a prima facie showing that they will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. La. C.C.P. art. 3601; Silliman Private School Corp. v. Shareholder Group, 2000-0065 (La.App. 1st Cir.2/16/01), 789 So.2d 20, 22-23, writ denied, 2001-0594 (La.3/30/01), 788 So.2d 1194. However, a threat of irreparable injury need not be shown when the deprivation of a constitutional right is at issue or when the act sought to be enjoined is unlawful. Piazza’s Seafood, 6 So.3d at 826; Acadian Ambulance, 722 So.2d at 322. To claim a constitutionally-protected property interest, a person must clearly have more than an abstract need or desire and must have a legitimate claim of entitlement. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The trial court enjoys considerable discretion in determining whether a preliminary injunction is warranted; thus, the trial court’s ruling will not be disturbed on appeal absent a clear abuse of discretion. Piazza’s Seafood, 6 So.3d at 826.

Where the purpose of the injunc-tive relief sought is to prevent specifically threatened future conduct, but the act sought to be enjoined has already been committed or accomplished, there can be no ground for an injunction. Silliman, 789 So.2d at 23. A court of appeal will not review a case when only injunctive relief is sought and the need for that relief has ceased to be a justiciable issue. Id. It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. City of Hammond v. Parish of Tangipahoa, 2007-0574 (La.App. 1st Cir.3/26/08), 985 So.2d 171, 178. A “justiciable controversy” is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character. Id.

According to Louisiana jurisprudence, an issue is moot when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” Cat’s Meow, Inc. v. City of New Orleans, Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1193. Accordingly, a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. Id. Thus, when an appeal is taken from an order denying injunctive relief, and the act sought to be enjoined is accomplished pending appeal, the appeal will be dismissed as moot. Silliman, 789 So.2d at 23. Also, where the trial court renders judgment on the merits on the petition for a permanent injunction, as was done in this case approximately two months after the preliminary injunction was denied, the issue of the preliminary injunction becomes moot. Id. If the case is moot, there is no subject matter on which the judgment of the court can operate. City of Hammond, 985 So.2d at 178. Jurisdiction, once established, may abate if the case becomes moot. Id. The controversy must normally exist at every stage of the proceeding, including the appellate stages. Id.

In this case, the only relief sought by plaintiffs’ amended petition with regard to a preliminary injunction was that it be issued, restraining the Board from taking “any and all actions” relating to any proposed study and potential SUNO-jUN06 merger recommendation and pending further orders of the trial court. However, the record reflects that the trial court denied plaintiffs’ request for a preliminary injunction after it dissolved the TRO that was initially granted by the duty judge. With no court order restraining the Board, the study and recommendation of the Board concerning the SUNO-UNO merger was completed and submitted to the Legislature as directed in SR 123. While we recognize that the complete legislative history flowing from SR 123 is not part of the record in this case, reviewing courts have inherent judicial authority to review legislative history materials.

A court may take judicial notice of legislative records where preserved, as they are a matter of public record. See State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., 2005-0728 (La.App. 1st Cir.3/24/06), 934 So.2d 745, 748, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288. Accordingly, we take judicial notice of the legislative history for SR 123 and of the fact that during the 2011 Regular Session, the Louisiana Legislature eventually changed the Board’s proposed SUNO-UNO merger recommendation, and the Governor ultimately signed into law a transfer of UNO that did not affect SUNO. See Herman, Herman, Katz & Cotlar, L.L.C. v. State ex rel. Blanco, 2008-1337 (La.9/19/08), 990 So.2d 737, 739 n. 1 (where the Louisiana Supreme Court took judicial notice of the fact that the Legislature passed three Acts that were pertinent to that particular case during the 2008 Regular Session, and the Governor signed the Acts into law).

We specifically note that House Bill No. 537 (HB 537) was vetoed by the Governor, while a duplicate bill, Senate Bill No. 266 (SB 266), was eventually enacted as 2011 La. Acts, No. 419 and became effective July 12, 2011. The legislative history of Act 419 clearly reveals that the SUNO-UNO merger | legislation was amended, deleting any and all reference to that particular merger. In place of the SUNO-UNO merger, the amended and final enrolled legislation provided for the transfer of UNO from the Louisiana State University System to the University of Louisiana System. See La. R.S. 17:3217, as amended and reenacted, and La. R.S. 17:3230 and 17:3241, as enacted by 2011 La. Acts, No. 419, § 1. The 2011 Regular Legislative Session ended on June 23, 2011, without any reconsideration of a SUNO-UNO merger. Thus, plaintiffs’ request to preliminarily enjoin the Board from completing the SR 123 study and from taking any and all action concerning the SUNO-UNO merger is now moot.

Obviously, plaintiffs can no longer be affected by the Board’s now completed study and SUNO-UNO merger recommendation that the Legislature has already considered and declined to enact. Simply stated, this appeal presents no jus-ticiable controversy and is now moot given the legislative action declining to enact the SUNO-UNO merger as recommended by the Board, as well as the rendition of judgment by the trial court on the merits of plaintiffs’ requested permanent injunction.

CONCLUSION

For the above and foregoing reasons, plaintiffs’ appeal of the trial court’s denial of a preliminary injunction (Tobin I) is hereby dismissed as moot. Costs of this appeal are assessed against plaintiffs, Eugenie Tobin, Ellis D. Brent, Jr., Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, and Venese Maehelle-Charity Morgan.

APPEAL DISMISSED.

      . The second appeal, Tobin, et al. v. Governor Bobby Jindal, in his Official Capacity as Governor of the State of Louisiana, and the Louisiana Board of Regents (Tobin II), 2011-1004 (La.App. 1st Cir.2/10/12), 91 So.3d 329, involves a separate judgment rendered by the trial court on April 20, 2011, sustaining defendants’ peremptory exceptions raising the objections of no cause of action and no right of action, and dismissing plaintiffs' petition seeking a permanent injunction and declaratory judgment. In the second appeal decided this same date, we affirm the dismissal of plaintiffs’ petition.

      . Louisiana Constitution Article 8, Sections 5(D)(3)(a) and (b) authorize the Board to study, but not effect, a merger, consolidation, or transfer of a postsecondary institution from one system to another. To be effective, such measures and proposals require a two-thirds vote of the Legislature upon written recommendation by the Board. La. Const, art. 8, § 5(D)(3)(b).

      . Plaintiffs, Eugenie Tobin and Ellis D. Brent, Jr., are students at SUNO, while plaintiffs, Charles E. Toney, Jr., Kye Lewis, Dadrius Lanus, Nykeisha Trenette Bryer, and Venese Machelle-Charity Morgan, are students at Southern University at Baton Rouge, including the Southern University Law Center (SUBR).

      . The TRO was initially granted by the duty judge on the day plaintiffs filed their original petition, but the trial court dissolved the TRO a few days later, on February 18, 2011. The TRO request is not at issue in this appeal.

      . The trial court also overruled the Board’s and the Governor’s peremptory exceptions raising the objections of no cause of action and no right of action. These exceptions were again urged on March 25, 2011, as to plaintiffs’ request for a permanent injunction and declaratory judgment. After considering the exceptions again, the trial court sustained the exceptions and dismissed plaintiffs' case with prejudice on April 20, 2011. That particular judgment is the subject of plaintiffs’ second appeal in Tobin II.

        . We note that the issue of subject matter jurisdiction may be raised at any time, even by the court on its own motion, and at any stage of an action. Joseph v. Ratcliff, 2010-1342 (La.App. 1st Cir.3/25/11), 63 So.3d 220, 224. Thus, it is of no consequence that defendants raised the issue of mootness for the first time in their appellate brief without filing an answer to the appeal or a motion to dismiss the appeal. In the interest of judicial economy, an appellate court may consider the possibility of mootness on its own motion and dismiss the appeal if the matter has in fact become moot. Cory v. Cory, 43,447 (La.App.2d Cir.8/13/08), 989 So.2d 855, 859-60.

      . The various versions of HB 537 and SB 266, along with the adopted and rejected amendments as the legislation moved through the legislative process, are all public documents that are available online through the Louisiana Legislature's web site at www.legis.state. la.us.


author: GAIDRY, J.

text:
    Willamena PARETTI v. GENERAL MOTORS CORPORATION, Metropolitan Life Insurance Company, MetLife Financial Services and Barry J. Bellina.
    No. 2011 CA 0844.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2012.
    Paul N. Vance, Beverly K. Baudouin, New Orleans, LA, for Plaintiff/Appellant Willamena Paretti and Paretti Motor Company, Inc.
    Virginia N. Roddy, Jennifer M. Lawrence, New Orleans, LA, for Defendants/Appellees Metropolitan Life Insurance Company, Metlife Financial Services and Barry J. Beilina.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

| j>This suit stems from Craig Paretti’s attempt to purchase a life insurance policy from the defendants prior to his death. After summary judgment dismissed all of the plaintiffs’ claims against all defendants, the plaintiffs appealed. We reverse.

FACTS AND PROCEDURAL HISTORY

Craig Paretti owned a Pontiac dealership for over thirty-five years and participated in the GM Dealer Group insurance plan. In 2004, Mr. Paretti’s dealership was terminated by GM, and as a result he became ineligible to participate in the group insurance plan.

Mr. Paretti was informed in a June 18, 2004 letter from Luanne Metropoulos, Group Insurance Representative for the GM Dealer Insurance Group, that he was no longer eligible to continue his $300,000.00 life insurance policy under the group plan. The letter informed him that although his policy was being cancelled, he could convert his group policy to an individual one within thirty-one days. The letter went on to state that he could continue a reduced portion of his coverage under the group plan’s Retirement Continuance Option (“RCO”). The letter included an attached RCO form, but contained no form to apply for a conversion to an individual policy; instead it instructed him to contact MetLife if he was interested in applying to convert his coverage.

Mr. Paretti signed and returned the RCO form on or about July 9, 2004. A July 19, 2004 letter from Luanne Metro-poulos to Mr. Paretti confirmed the GM Dealer Insurance Group’s receipt of Mr. Paretti’s completed RCO Form and Mr. Paretti’s enrollment in that plan for [3$120,000.00 of Life insurance, $60,000.00 of Accidental Death & Dismemberment coverage, and $50,000.00 in Dependent Life coverage under the GM Dealer Group Life Insurance Plan.

In addition to signing and returning the RCO form, Mr. Paretti spoke with his personal insurance agent, Stan Maraldo, about converting his group policy to an individual one. Since Mr. Maraldo was not a MetLife agent, he arranged for Mr. Par-etti to meet with MetLife agent Barry Beilina on July 15, 2004 to discuss conversion of his policy. On July 26, 2004, Mr. Beilina and Mr. Paretti met again and Mr. Paretti signed the application provided by Mr. Beilina to convert his coverage to an individual policy. The premium check for the converted policy was negotiated on July 30, 2004.

Subsequently, on August 27, 2004, Met-Life informed Mr. Beilina that Mr. Paretti was not eligible to convert his policy to an individual one because he had elected to continue reduced coverage under the RCO. On October 7, 2004, Mr. Beilina informed Mr. Paretti that he was not eligible for conversion. Mr. Paretti reportedly became very angry when he was informed that he could not convert his policy to an individual one and told Mr. Beilina that his intent had been to secure the maximum coverage for which he was eligible, and if he was limited to either the reduced coverage under the RCO or the conversion policy, he would choose to convert to an individual policy.

Mr. Paretti suffered a massive heart attack and died on October 8, 2004, the day after he was informed that he was not eligible for conversion. MetLife declined to pay under the conversion policy and eventually returned 14the premium paid for the conversion policy in January of 2005. Mr. Paretti’s widow, Willamena Paretti, and Paretti Motor Company sued Met-Life and Beilina for breach of contract, negligence, detrimental reliance, and arbitrary and capricious failure to pay claims. MetLife deposited $123,600.00 ($120,000.00 Life insurance coverage under the RCO, plus interest) into the registry of the court, which was later withdrawn by the plaintiffs.

The defendants filed motions for summary judgment, which the court granted, dismissing all of the plaintiffs’ claims against the defendants. The court concluded that the only coverage in effect on the date of Mr. Paretti’s death was the reduced amount under the RCO because although Mr. Paretti applied for conversion coverage prior to his death, his application was not accepted. As a result, the conversion policy sued upon was never issued, and the plaintiffs have no contract claims. The court also found that the plaintiffs have no negligence claims because there was no duty owed to the plaintiffs or Mr. Paretti. Finally, the court found that the plaintiffs had no claims for detrimental reliance because they offered no evidence of misrepresentation.

The plaintiffs have appealed, alleging that the trial court erred in not finding that La. R.S. 22:942 required MetLife to provide conversion coverage to Mr. Paret-ti, since Mr. Paretti had met all requirements to convert his coverage to an individual policy, regardless of his choice of the RCO. The plaintiffs also allege that the court erred in failing to find that Mr. Beilina’s actions and representations bound MetLife to convert Mr. Paretti’s policy and that Mr. Beilina breached his duty to Mr. Paretti when he did not timely notify him that his application for coverage had been denied.

J^DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 11 (La.12/16/11), 79 So.3d 987. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966(B).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Board, 07-1856, p. 2 (La.App. 1 Cir. 8/21/08), 6994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also LSA-C.C.P. art. 967(B).

In plaintiffs’ first assignment of error, they argue that Metlife was required under the provisions of La. R.S. 22:942 to allow Mr. Paretti to convert his policy to an individual policy at the amount of life insurance in force under the group policy. Louisiana Revised Statutes 22:942 provides that a policy of group life insurance shall contain the following provisions regarding conversion on termination of eligibility:

(10) Conversion on termination of eligibility: A provision that if the insur-anee, or any portion of it, on an individual covered under the policy ceases because of termination of employment or of membership in the class or classes eligible for coverage under the policy, such individual shall be entitled to have issued to him by the insurer, without evidence of insurability, an individual policy of life insurance without disability or other supplementary benefits, provided application for the individual policy shall be made and the first premium paid to the insurer within thirty-one days after such termination.

It is further provided that:

(a) The individual policy shall, at the option of such individual, be on any one of the forms, except term insurance, then customarily issued by the insurer at the age and for the amount applied for.
(b) The individual policy shall be in an amount not in any event in excess of the amount of life insurance which ceases because of such termination nor less than one thousand dollars unless a smaller amount of coverage was provided for such individual under the group policy, provided that any amount of insurance which matures on the date of such termination or has matured prior under the group policy as an endowment payable to the individual insured, whether in one sum or installments or in the form of an annuity, shall not, for the purposes of this provision, be included in the amount which is considered to cease because of such termination.
|7(c) The premium on the individual policy shall be at the insurer’s then customary rate applicable to the form and amount of the individual policy, to the class of risk to which such individual then belongs, and to his age attained on the effective date of the individual policy.
⅜ ⅜ ⅜ ⅜ ⅜
(12) Death pending conversion: A provision that if a person insured under the group policy dies during the period within which he would have been entitled to have an individual policy issued to him in accordance with Paragraphs (10) and (11) of this Section and before such an individual policy shall have become effective, the amount of life insurance which he would have been entitled to have issued to him under such individual policy shall be payable as a claim under the group policy, whether or not application for the individual policy or the payment of the first premium therefor has been made.

The June 18, 2004 letter from Luanne Metropoulos, Group Insurance Representative for the GM Dealer Insurance Group notifying Mr. Paretti of the cancellation of his group policy contained the following pertinent language:

Because of this change in status, you are no longer eligible for coverage under this plan. Therefore, your insurance has been cancelled effective May 31, 2004.
You may arrange to have all or part of your insurance converted, without medical examination, to an individual policy by making application directly to any office or representative of Metropolitan Life Insurance Company within the 31-day period following the date of the cancellation or the date of this letter, whichever is later.... You or your dependent may convert to any type of Life insurance policy (except term) being issued by Metropolitan.
If you are no longer active in the Dealership due to disability, you may elect to continue Life insurance coverage for yourself for a period of up to six months by making the required contribution.
If you are not eligible to continue your coverage due to disability and do not want to convert, you may continue your group term insurance coverage under the Retirement Continuance Option of the GM Dealer Group Life Insurance Plan, If you retire or sell your dealership, are age 55 or older, and have participated in the Owner Plan for 10 or more consecutive years, you are eligible to continue a portion of your group life insurance coverage, a portion of your Accidental |RPeath & Dismemberment, and all of your dependent life coverage under the Retirement Continuance Option.
Your participation in the Retirement Continuance Option means:
• Continued coverage for you and your Dependents, if already enrolled,
• The same low cost group rates as under the GM Dealer Insurance Plan, and
• No medical examination
The amount of insurance that you will be enrolled for under this option is based on the number of consecutive years you have participated in the Owner Plan. If you would like to take advantage of this opportunity to continue your Group Term Insurance with us, please sign the enclosed Retirement Continuance Form and return it to us within 31 days of the date of this letter.

According to the chart included in the letter and the attached Retirement Continuance Form, Mr. Paretti was eligible under the RCO to continue his group insur-anee at the level of 40% of the original coverage amount ($300,000.00), which resulted in a reduced coverage amount of $120,000.00.

Although the letter does seem to indicate that Mr. Paretti could not both continue his coverage under the RCO and convert his coverage to an individual policy (“If you are not eligible to continue your coverage due to disability and you do not want to convert, you may continue your group term insurance coverage under the [RCO]”), La. R.S. 22:942 is clear that because Mr. Paretti’s insurance (or any portion of it) ceased because of termination of employment or of membership in the class or classes eligible for coverage under the policy, he was “entitled to have issued to him” an individual policy, provided he applied and paid the premium within thirty-one days. Mr. Paretti met the statutory requirements to convert his coverage, and MetLife’s insertion of additional restrictions in a letter cannot take this right away. This entitlement to conversion is further evidenced by subsection (12) of the statute, which provides that where an insured dies during the | sthirty-one day conversion period, even if he has not yet applied to convert his policy to an individual one, the amount of life insurance which he would have been entitled to have issued to him under such individual policy shall be payable as a claim under the group policy. Because Mr. Paretti was entitled to convert his policy to an individual one by simply applying and paying the premium, which he did, the court erred in granting summary judgment on the grounds that no contract was formed.

While we acknowledge MetLife’s argument that the provision of La. R.S. 22:942(10)(b) limiting the amount of the individual policy to the amount of the life insurance that ceases under the group policy would preclude Mr. Paretti from obtaining both the $120,000.00 RCO coverage and the $300,000.00 conversion coverage, we do not agree that this prohibition means that Mr. Paretti could not have converted his group policy to an individual one. Mr. Paretti may have been required to cancel the RCO coverage or to select a lesser amount of conversion coverage. This does not change our opinion that summary judgment was inappropriate.

The plaintiffs also argued that the court erred in dismissing its claims against Mr. Beilina for damages resulting from his unreasonable delay in informing Mr. Par-etti of the denial of his application. Mr. Beilina argued that he cannot be liable to the plaintiffs as a result of any unreasonable delay in notifying Mr. Paretti, because plaintiffs cannot show any loss caused by the delay. In support of this argument, Mr. Beilina cited Thomas v. Life Insurance Company of Georgia, 219 La. 1099, 55 So.2d 705 (La.1951), in which the Louisiana Supreme Court held that even if an agent unreasonably delays informing a prospective insured of the denial of his application for insurance, there can be no claim against the agent based upon this unreasonable delay where there is no evidence the applicant would have 11(⅛applied elsewhere for insurance or that any company would have issued him a policy. Based upon this ruling, Mr. Beili-na argues that there was no evidence that Mr. Paretti would have applied for life insurance elsewhere if he had been informed sooner of the denial of his policy, and furthermore that Mr. Paretti could not have applied to any other company to convert his MetLife group insurance. However, since we have determined that it is clear that Mr. Paretti was entitled to convert his coverage to an individual policy under the provisions of La. R.S. 22:942, we cannot say that Mr. Paretti was not harmed by the unreasonable delay in notifying him of MetLife’s denial of his application. As such, summary judgment in favor of Mr. Beilina was not appropriate.

CONCLUSION

For the reasons set forth hereinabove, summary judgment in favor of the defendants is reversed. Costs of this appeal are to be shared equally by the defendants.

REVERSED.

      . Although there was no date next to his signature on the RCO Form, the handwritten note accompanying the form when it was returned to the GM Dealer Insurance Group was dated July 9, 2004.

      . Although the application was ultimately signed more than thirty-one days from the date of the notice of cancellation, Mr. Paretti met with Mr. Beilina and chose to apply for conversion within the thirty-one day period. According to emails between Mr. Beilina and MetLife, the delay in getting the application signed was due to Mr. Beilina’s scheduling conflicts, and coverage was not denied because of the delay.

      . Paretti Motor Company sued as an alternate owner and beneficiary of the unissued conversion policy.

      . Louisiana Code of Civil Procedure article 967(B) provides: When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.