source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Adrienne Geiling WOOD v. OMNI BANCSHARES, INC. d/b/a Omni Bank and Tom Tappan.
    Nos. 10-CA-216, 10-CA-567.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 29, 2010.
    Joseph F. Bishop, Jr., Adrienne Geiling Wood, Attorneys at Law, Covington, LA, for Plaintiff/Appellant.
    Gary A. Cotogno, Attorney at Law, New Orleans, LA, Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   PER CURIAM.

| aThis appeal arises from a petition filed by Adrienne Wood against Omni Bank and Tom Tappan, Omni Bank’s employee. Adrienne Wood seeks to recover insurance proceeds which she alleges she lost as a result of Omni Bank, through Mr. Tappan, breaching its fiduciary and contractual duty to protect her interest in the insurance proceeds. Appellant, Adrienne Wood, assigns error from the trial court’s judgment rendered on April 28, 2010, granting appellees’, Omni Bank and Mr. Tappan’s, exception of no cause of action.

On July 9, 2008, Adrienne Wood, filed her petition for damages in the 24th Judicial District Court against Omni Bank and Mr. Tappan. On November 13, 2008, the defendants filed peremptory exceptions of no right of action, no cause of action, and prescription which were overruled on February 11, 2009. Thereafter, on March 24, 2009, the defendants answered the petition, raised various affirmative defenses, and made a third-party demand against Glen Wood and Woody’s Collision Specialists. On May 22, 2009, the third-party defendants filed an exception of no cause of action which was heard on September 8, 2009. On ^September 21, 2009, the trial judge rendered and maintained the third-party defendants’ exception and dismissed them from the litigation.

At the September 8th hearing, the district court, Omni Bank, and Mr. Tappan heard, for the first time, that pursuant to a consent judgment, the Wood’s entered into a partial partition of their community property whereby Adrienne Wood received the current value of the property involved in this litigation. Upon learning this, Omni Bank and Mr. Tappan asked the district court whether it would reconsider their exception of no cause of action against Adrienne Wood. The court stated that it was willing to do so based upon the information that it now had. Thereafter, on January 22, 2010, Omni Bank and Mr. Tappan filed a second peremptory exception of no cause of action against Adrienne Wood. The court heard Omni Bank and Mr. Tappan’s second exception of no cause of action on April 21, 2010. It rendered judgment on this exception on April 28, 2010, maintaining the exception and dismissing Omni Bank and Mr. Tappan from the litigation. Adrienne Wood appealed.

DISCUSSION

A peremptory exception that has been filed after the answer, but at or prior to the trial of the case, shall be tried and disposed of either in advance of or on the trial of the case. La. C.C.P. art. 929. Here, the defendants’ second peremptory exception of no cause of action was filed on January 22, 2010, and was properly disposed of prior to trial on April 28, 2010.

Although Omni Bank and Mr. Tappan’s reurged exception was properly heard on April 21, 2010, the transcript from this hearing was not made part of the appellate record. In this case, the parties designated the appellate record in accordance with Uniform Rules, Courts of Appeal, Rule 2-1.17 which provides that the parties may designate, in writing, portions of the record to constitute the 14record in a Court of Appeal. While the designated record contains the transcripts and evidence introduced at the September 8th and February 10th hearings, the transcript of the April 21st hearing that resulted in the trial court judgment from which the appellant assigns error is not part of the designated record.

A Court of Appeal is a court of record, which must limit its review to evidence in the record before it. Hoover v. Farber, 05-613, pp. 3-1 (La.App. 5 cir. 1/31/06), 922 So.2d 637, 638 citing LSA-C.C.P. art. 2164 (citations omitted). Further, an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. White Haute, LLC v. Mayo, 09-955, pp. 9-10 (La.App. 5 Cir. 3/23/10), 38 So.3d 944, 950.

In order for this Court to properly address appellant’s assignments of error, a thorough review of the transcript of the April 21st hearing, along with any evidence introduced at the hearing is necessary. La. C.C.P. art. 2161 provides that an appeal shall not be dismissed when the trial record is missing, incomplete, or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. Guillie v. State Dept. of Transp. and Develop., (La.App. 5 Cir.1989), 538 So.2d 1144, 1146. In order to ensure an accurate record and thorough review, we find it necessary to remand this case to the trial court and order a supplemented record.

DECREE

For the reasons set forth above, this case is remanded to the trial court for a supplemental record to add the transcript from April 21, 2010, hearing along with any evidence introduced at the hearing at the appellant’s cost.

In the event that the record is supplemented on remand, the appeal will be re-docketed on the next available docket upon the lodging of the necessary supplemented record.

REMANDED TO THE TRIAL COURT WITH INSTRUCTIONS


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Adrienne Geiling WOOD v. OMNI BANCSHARES, INC. d/b/a Omni Bank and Tom Tappan.
    No. 10-CA-216 C/W, 10-CA-567.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Joseph F. Bishop, Jr., S.C. Garcia, III, Attorneys at Law, Covington, LA, for PlaintiffyAppellant.
    Gary A. Cotogno, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Attorneys at Law, Gretna, LA, for Defendant/Appellee.

      Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

[¡.In these consolidated cases, the original plaintiff/appellant and third-party plaintiff/third-party appellant appeal the trial court’s granting of peremptory exceptions of no cause of action. The appeal arises from a petition filed by plaintiff/appellant, Adrienne Wood, against defendants/appellees, Omni Bank (Omni) and Mr. Tom Tappan, Omni Bank’s employee. Adrienne Wood seeks to recover insurance proceeds which she alleges she lost as a result of Omni, through Mr. Tappan, breaching their alleged oral agreement to deposit the proceeds into specified accounts at Omni Bank. Omni and Mr. Tap-pan seek to recover the disputed insurance proceeds from Glen Wood and Woody’s Collision Specialists, LLC., if they are found liable to Adrienne Wood. For the reasons that follow, the judgments appealed from are reversed, and the case is remanded for further proceedings.

| sFacts and Procedural History

During the course of their marriage, plaintiff/appellant, Adrienne Wood, and third-party defendant/third-party appellee, Glen Wood, allegedly operated two businesses — Woody’s Collision Specialists, LLC (“Woody’s”), and Woody’s Mechanical Maintenance and Repair, LLC. On October 17, 2002, Glen Wood and Adrienne Wood executed a promissory note bearing number 2608 in Omni’s favor in the amount of $400,000. The loan was secured by a collateral mortgage which covered immovable property located at 17 27th Street in Kenner, Louisiana — the location of Woody’s. The collateral mortgage required the Woods to continuously maintain insurance on the property. The parties contend that the property was insured by United Fire Group (UFG) and that Omni was listed as the loss payee.

When the Woods executed the promissory note, they also executed a Limited Liability Company Authorization Resolution which authorized either Adrienne Wood or Glen Wood to individually exercise all power over Woody’s commercial checking account ending in number 8874. However, on December 13, 2005, unbeknownst to Adrienne Wood, Glen Wood executed a new authorization resolution which removed her from that account. Shortly after learning this, Adrienne Wood filed for divorce and informed Omni of the divorce proceedings.

Thereafter, Adrienne Wood, Glen Wood, and Mr. Tappan executed another authorization resolution on May 19, 2006, which required their three signatures collectively to transact business on newly opened account 6508. Adrienne Wood alleges that she had an oral agreement with Mr. Tap-pan that insurance proceeds from UFG would be deposited into that account or into escrow account 4132 on which Nancy Rowland was the only authorized signatory. UFG issued three ^insurance checks totaling $181,686.48, which were deposited into account 6508 in accordance with the alleged oral agreement.

UFG issued another check on December 28, 2006 in the amount of $49,327.02 which was deposited in Woody’s commercial account number 3374 on January 8, 2007, in contravention of the alleged oral agreement. Then on March 19, 2007, UFG issued another check in the amount of $35,927.28 which was likewise deposited in Woody’s commercial account number 3374 on March 26, 2007. Each check was stamped “WITHOUT RECOURSE.” Those funds were subsequently transferred by Glen Wood into his personal account number 8314.

Adrienne Wood wrote a letter to Mr. James Hudson, Omni’s president, and requested the banking records of both Glen Wood and Woody’s. He responded that she was not Omni’s customer on account 3374; and he was therefore prohibited from releasing any information to her regarding that account.

On July 9, 2008, Adrienne Wood filed a petition for damages in the 24th Judicial District Court against Omni and Mr. Tap-pan for breach of contract. In her petition, she alleged that the bank breached the written and oral agreements between the parties to deposit insurance proceeds in account 6508 or account 4132. Omni and Mr. Tappan answered the petition, raised various affirmative defenses, and made a third-party demand against Glen Wood and Woody’s.

The defendants in the principal action filed peremptory exceptions of no right of action, no cause of action, and prescription on November 13, 2008. The trial court found that Adrienne Wood had a claim in contract subject to a 10 year prescriptive period and overruled the exceptions. That judgment was rendered on February 11, 2009.

|fiThe third-party defendants also filed an exception of no cause of action with respect to the third-party demand filed against them. That matter was heard on September 8, 2009. The court sustained that exception and dismissed Glen Wood and Woody’s from the suit. That judgment was rendered on September 21, 2009.

During the September 8th hearing, however, the court discovered that the Woods had entered into a consent judgment whereby Adrienne Wood was paid the current enhanced value of the repaired property. The court was unaware of the consent judgment when it overruled Omni’s exception of no cause of action against Adrienne Wood. Upon learning this, the court stated its willingness to reconsider Omni’s exception of no cause of action against her. On January 22, 2010, Omni filed its second peremptory exception of no cause of action. That exception was sustained on April 28, 2010. Both Adrienne Wood and Omni/Mr. Tappan have appealed.

Assignments of Error

Adrienne Wood contends that the trial court erred in reconsidering Omni’s peremptory exception of no cause of action which was based on extraneous evidence, namely the consent judgment, when its first ruling should have been construed as the law of the case. She also contends that the trial court erred in finding that her petition failed to state a cause of action.

Omni, as third-party plaintiff, contends that the trial court erred in sustaining Glen Wood and Woody’s peremptory exception of no cause of action which effectively dismissed them from the litigation.

Discussion

Adrienne Wood’s First Assignment of Error

In her first assignment of error, Adrienne Wood contends that the trial court erred when it reconsidered Omni’s second peremptory exception of no cause of |fiaction when it had previously overruled the exception. She further argues that the court’s prior ruling should have been construed as the law of the case.

The peremptory exception of no cause of action may be pleaded at any stage of the proceedings in the trial court prior to a submission of the case for a decision. La. C.C.P. art. 928(B).

“The overruling of a peremptory exception is merely an interlocutory order, and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception, upon finding that it erred in overruling it.” Louisiana State Bar Ass’n v. Carr and Assocs., Inc., 08-2114, p. 6 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 164.

During the September 8th hearing on Glen Wood and Woody’s exception of no cause of action, both the trial court and Omni learned that pursuant to a consent judgment, Adrienne Wood was paid the current enhanced value of the repaired property and that Glen Wood assumed 100 percent of the mortgage. Upon learning this, the trial court stated its willingness to reconsider Omni’s exception of no cause of action in regards to Adrienne Wood. Thereafter, Omni filed its second exception. Adrienne Wood contends, however, it was error for the trial court to reconsider it. We disagree.

Because the overruling of a peremptory exception is an interlocutory order, “it is not binding upon the trial court when it timely — but later — determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record which require a contrary holding.” Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328, 332 (La.1972). Therefore, Omni was entitled to ask the trial court to reconsider its initial adverse preliminary ruling.

Adrienne Wood further argues that the trial court’s first ruling should be construed as the “law of the case.” She concedes that the “law of the case” |7doctrine is discretionary at the trial level but asserts that it should be applied here because Omni’s request involved a consideration of the same facts and law as the first exception. Nevertheless, “the law of the case rule cannot supplant the Code of Civil Procedure provision which clearly permits reconsideration of the overruling of peremptory exceptions.” Id. at 333. Accordingly, this assignment is without merit.

Adrienne Wood’s Second Assignment of Error

Next, Adrienne Wood argues that trial court erred in granting Omni’s exception of no cause of action. In reviewing a trial court’s ruling on a peremptory exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Ramey v. DeCaire, 03-1299, p. 7-8 (La.3/19/04), 869 So.2d 114, 119.

The purpose of the exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Albarado v. Abadie, 97-478, p. 2 (La.App. 5 Cir. 11/12/97), 703 So.2d 736, 740. (citation omitted). Cause of action, as used in the context of the peremptory exception, means the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Id. (citation omitted).

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Therefore, an exception of no cause of action is triable solely on the face of the petition. All well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Lambert v. Riverboat Gaming Enforcement Div., 96-1856, p. 4 (La.App. 1 Cir.. 12/29/97), 706 So.2d 172,175.

IsTurning to the petition in this case, we conclude that the allegations sufficiently state a cause of action for breach of contract. The first allegation of a breach of the alleged agreement between Adrienne Wood and Omni/Mr. Tappan is set forth in paragraph 20 which provides:

On December 31, 2006, Tom Tappan authorized the issuance of a bank check in the amount of $20,297.21 to “Woody’s Collision Specialists and Adrienne G. Wood and Glen Wood,” thereby closing out bank account [XXXXXX]6508. Plaintiff later learned her name was forged as endorsee on this check. The issuing of this check by Omni Bank, without plaintiffs knowledge, or authorization, was a breach of the agreement between Omni Bank and plaintiff Adrienne Wood, that required 3 signatures for transactions in this account, (emphasis added).

Adrienne Wood, thereafter, makes seven other allegations of a breach of the alleged agreement in the petition, (paragraph 22: “breaching the agreement;” paragraph 27: “in violation of the agreement;” paragraph 30: “the bank violated its agreement;” paragraph 33; “without regard to the bank’s prior agreement;” paragraph 35: “breach of the agreements that existed;” and paragraph 38: “ignored its contractual and fiduciary relationship to the plaintiff.”).

Because the trial of the exception of no cause of action is solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. Albarado, supra. In this case, the trial court reconsidered Omni’s exception when it learned of the consent judgment, which it was permitted to do. However, the trial court erred when it considered the consent judgment in rendering its decision. As Adrienne Wood notes, extraneous evidence cannot be considered in support of an exception of no cause of action. Schell v. N.K. Enterprises, 96-0362 (La.App. 5 Cir. 1/15/97), 688 So.2d 68. Given that the consent judgment was the only new information provided at the second hearing, it is clear that the trial judge relied on that when it granted the exception, which it could not do. Moreover, the consent judgment was never introduced into evidence. And without being properly | fladmitted into evidence, neither the trial court nor the appellate court can consider those factual allegations. Id. at 72.

Accepting all of the allegations in Adrienne Wood’s petition as true and applying the legal principles previously set forth, we find that the petition alleges sufficient facts to state a cause of action for breach of contract against Omni and Mr. Tappan. Omni and Mr. Tappan’s Assignment of Error

In their sole assignment of error, Omni and Mr. Tappan contend that the trial court erred in dismissing their third-party demand against Woody’s and Glen Wood.

The defendant in a principal action by petition may bring in any person, including a codefendant, who is his war-rantor, or who is or may be hable to him for ah or part of the principal demand. La. C.C.P. art. 1111.

Turning to Omni and Mr. Tappan’s third-party petition, we find that the petition sets forth sufficient factual allegations for a claim of reimbursement against Woody’s and Glen Wood. Paragraphs 42 and 43 of the petition state that the bank deposited the insurance proceeds into Woody’s commercial account 3374 and that Woody’s, through its managing member Glen Wood, transferred those funds to his personal checking account number 8814. If Omni and Mr. Tappan are found liable to Adrienne Wood, Woody’s and Glen Wood are in possession of the funds that she has interest in.

We therefore find that the trial court erred when it dismissed Omni and Mr. Tappan’s third-party demand against Woody’s and Glen Wood.

Conclusion

The judgment granting Omni and Mr. Tappan’s exception of no cause of action against Adrienne Wood is reversed. In addition, the judgment granting |inthird-party defendants’, Woody’s and Glen Wood, exception of no cause of action against third-party plaintiffs is also reversed. The case is remanded for further proceedings.

REVERSED AND REMANDED

      . Those checks were issued to repair damage caused by Hurricane Katrina, and each of them were made payable to Woody’s Collision & Mechanical Collision Specialists LLC d/b/a Wood, Glen and Omni Bank.


author: ROLAND L. BELSOME, Judge.

text:
    Edward COLLINS v. STATE FARM INSURANCE COMPANY and Reggie Glass.
    No. 2010-CA-0769.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 26, 2011.
    Rehearing Denied Feb. 23, 2011.
    Writ Denied April 8, 2011.
    Edward Collins, Metairie, LA, In Proper Person, Plaintiff/Appellant.
    Burt K. Carnahan, Charles R. Rumbley, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendant/Appellee, State Farm Fire and Casualty Company.

      (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| plaintiff, Edward Collins, appeals the trial court’s granting of a Motion for Summary Judgment in favor of defendant, State Farm Insurance Company, thereby dismissing Mr. Collins’ claims against State Farm with prejudice. For the reasons set forth below, we affirm.

Mr. Collins had a homeowner’s policy, issued by State Farm, on his property located at 7508 Lafourche Street, New Orleans. Sometime in 2000, Mr. Collins made a claim against his homeowner’s policy for roof damage. State Farm adjusted the claim and paid the damages due. Subsequently, an inspection conducted by State Farm indicated that no repairs were made to the roof. Thereafter, it was determined that State Farm would not renew Mr. Collins’ homeowner’s policy on its expiration date of May 30, 2005. Mr. Collins filed claims related to damage incurred by Hurricane Katrina on or about August 29, 2005. State Farm denied the claims stating that there was no homeowner’s policy in force at that time.

The sole issue before this Court is whether State Farm Insurance Company mailed a notice of nonrenewal of the homeowner’s policy to Edward Collins in compliance with Louisiana law.

| ¡.The trial court previously granted summary judgment in 2008 in favor of State Farm, finding its notification of nonrenewal to Mr. Collins was properly confected in accordance with Louisiana law. Mr. Collins appealed and this court reversed, with two judges dissenting. Collins v. State Farm Ins. Co., 08-0790 (La.App. 4 Cir. 10/14/08), 997 So.2d 51(Tobias, J. and Belsome, J., dissenting), writ denied, Collins v. State Farm Ins. Co., 08-3012 (La.2/20/09), 1 So.3d 499. The majority held that the sworn affidavits from the homeowner and mortgagee declaring that they did not receive notice of State Farm’s intention to not renew the policy created a genuine issue of material fact as to whether the insurer’s notice of nonrenewal was effective.

On remand, State Farm re-urged summary judgment presenting additional evidence of mailing. After hearing arguments and reviewing the evidence, the trial court granted summary judgment in favor of State Farm, dismissing all claims asserted by Mr. Collins under his homeowner’s policy. This appeal followed.

A trial court’s entry of summary judgment is reviewed de novo on appeal. Spicer v. Louisiana Power & Light Co., 1997-2406 (La.App. 4 Cir. 4/8/98), 712 So.2d 226.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). For the purpose of summary judgment the mover bears the burden of proof. La. C.C.P. art. 966(C)(2). After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.; Smith v. General Motors Corp., 31,258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denial of his pleading, but his response, by | ¡¡affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Longo v. Bell South Telecommunications, Inc., 2003-1887, pp. 4-5 (La.App. 4 Cir. 10/7/04), 885 So.2d 1270, 1273-1274. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Suire v. Lafayette City-Parish Consol. Govt., 2004-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48.

On appeal, the plaintiff argues that the trial court erred in granting summary judgment because there is still a genuine issue of material fact regarding whether State Farm provided the appropriate notice of the nonrenewal of Mr. Collins’ homeowner’s policy in accordance with Louisiana law. We disagree.

The statutes that are controlling with respect to the nonrenewal of homeowner’s insurance policies in Louisiana are, La. R.S. 22:636, La. R.S. 22:636.1 and La. R.S. 22:636.6. La. R.S. 22:636 applies generally to property and casualty insurance policies and provides in pertinent part:

G. (1) No insurer shall fail to renew a policy providing property or casualty insurance unless a notice of intention not to renew is mailed or delivered to the named insured at the address shown on the policy at least thirty days prior to the effective date of nonrenewal.

La. R.S. 22:636(G)(1) (emphasis added).

Additionally, La. R.S. 22:636.1, referring to nonrenewal of property and casualty insurance policies specifically, states in part:

E. (1) No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew.
_JjF. Proof of mailing of notice of ... intention not to renew ... to the named insured at the address shown in the policy, shall be sufficient to proof of notice.

La. R.S. 22:636.1(E)(1) and (F) (emphasis added).

And lastly, La. R.S. 22:636.6, referring to the nonrenewal of homeowner’s insurance, reads in part:

A. An insurer that has issued a policy of homeowner’s insurance shall not fail to renew the policy unless it has mailed or delivered to the named insured, at the address shown in the policy, written notice of its intention not to renew. The notice of nonre-newal shall be mailed or delivered at least thirty days before the expiration date of the policy.

La. R.S. 22:636.6(A) (emphasis added).

Louisiana law requires that statutes be applied as written and no further interpretation made in search of the legislature’s intent when the law is clear and unambiguous and its application does not lead to absurd consequences. La. C.C. art. 9. In the present case, the statutes’ language is clear. The mailing of a notice of nonre-newal to the insured’s address, as listed on the policy, at least thirty days before the expiration of the policy satisfies the burden placed upon the insurer. La. R.S. 22:636, et seq. Noticeably absent from the statutes is language requiring the notice of nonrenewal be received in order for it to be effective.

When enacting these statutes, the Legislature specifically distinguished between the standard of notice required for cancellation and that for nonrenewal of insurance policies. More specifically, La. R.S. 22:636(A)(l)relating to cancellation states that, “[w]ritten notice of ... cancellation must be actually delivered ...” (emphasis added). The Legislature did not attach such language to the requirements of notice of nonrenewal.

On remand, State Farm presented the trial court with a Certificate of Mailing Listing authenticated by a team manager’s affidavit. The certifícate bore the | ^signature of State Farm Postal Operator Margaret Wynn and U.S. Postal Operator Larry Bailey, Jr., the two persons involved in the mailing of Mr. Collins’ nonrenewal notice. The certificate included the name and addresses for the notice recipients, as well as, copies of the notices. These documents indicated that Mr. Collins and his first and second mortgage holders were sent nonrenewal notices on April 27, 2005.

In further' verification and support of the Certificate of Mailing Listing, State Farm took the depositions of Ms. Wynn and Mr. Bailey. Ms. Wynn identified her signature on the Certificate of Mailing Listing. She also testified that it was her responsibility to place the nonrenewal notice in an envelope, place postage on the envelope and hand deliver the mailings to the post office.

At the post office, the employee of the U.S. Postal Service would sign the certificate to verify receipt and mailing of the notices. Mr. Bailey, the postal employee, testified that his signature was on the certificate and that meant that he had checked the envelopes against the list of recipients and accepted the envelopes for mail delivery. Once State Farm established mailing as required by the applicable statutes, the burden shifted to Mr. Collins. Since receipt of the nonrenewal notice is not required by law, the mere denial of receipt cannot create a genuine issue of material fact under these circumstances.

This evidence introduced by State Farm satisfied its burden of proof under La. R.S. 22:636, et seq. Accordingly, the trial court’s ruling is affirmed.

AFFIRMED

      . La. R.S. 22:636 was renumbered as La. R.S. 22:887 by Acts 2008, No. 415, Sec. 1, (effective Jan. 1, 2009). Also, R.S. 22:636.1 is now 22:1266 and 22:636.6 is now 22:1335.


author: MAX N. TOBIAS, JR., Judge.

text:
    CONCRETE BUSTERS OF LOUISIANA, INC. v. The BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS.
    No. 2010-CA-1172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 2, 2011.
    Rehearing Denied Feb. 25, 2011.

      John I. Hulse IV, Hulse & Wanek, A PLC, and Stuart G. Richeson, Baldwin Haspel Burke & Mayer, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Jeffery M. Lynch, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| j>,The plaintiff/appellant, Concrete Busters of Louisiana, Inc. (“Concrete Busters”) appeals the trial court’s denial of its petition for a writ of mandamus and injunction against the defendant/appellee, the Board of Commissioners of the Port of New Orleans (“the Board”). For the reasons that follow, we reverse the trial court’s judgment and award the contract to Concrete Busters.

The facts are not in dispute. In mid-April 2010, the Board, a political subdivision of the state, advertised a solicitation for bids for the demolition of the Board’s Henry Clay Avenue Wharf shed; the shed is located on immovable property owned by the Board. In the original bidding documents, the bids were to be submitted in a sealed envelope containing: (1) the completed bid form with bidder’s State Contractor’s license; (2) a certified check or bid bond; (3) acknowledgment of all addendum or addenda on the bid form; and (4) evidence of authority to sign of the person who signed the bid. In addition to the bid package, each bidder provided a document entitled “Louisiana Uniform Public Work Bid Form” as required by state law.

IsTwo addenda were issued by the Board prior to the bid opening. As part of the bid solicitation, the Board requested that all bidders “clip” to their bid an acknowledgment form whereby the bidders would, in writing, acknowledge receipt of all addenda issued for the demolition project.

When the bids were opened on 11 May 2010, both D.H. Griffin of Texas (“Griffin”), the lowest bidder on the project, and Concrete Busters, the next lowest bidder, provided the required Louisiana Uniform Public Work Bid Form and acknowledged receipt of all addenda on the form. Griffin, however, did not attach to its bid documents the written acknowledgments of the addenda as requested by the Board.

The Board notified all bidders that the demolition contract would be awarded to Griffin, the lowest responsive bidder. On 19 May 2010, Concrete Busters issued a formal letter of protest that challenged the responsiveness of the Griffin bid, specifically noting the failure of Griffin to “clip” the written acknowledgments of addenda to the bid. On the same day, the Board replied to Concrete Busters’ protest stating in part:

Attaching a copy of the last page of the addenda is not material to the bid and not including it does not make the bid non-responsive. Only the requirements that are mandated by the public works statute, i.e. acknowledging the addenda on the bid form, are material to whether or not a bid is responsive.

On 1 June 2010, Concrete Busters filed a “Petition for Writ of Mandamus and Preliminary Injunction.” A hearing was held on 14 June 2010. The Board [4opposed the petition, arguing that: (a) demolition contracts are not subject to the public bid law; and (b) if they are, the lowest bidder is determined by the Louisiana Uniform Public Work Bid Form; all other requirements of the bid specifications can be complied with at a later date. After oral argument, the court entered judgment in favor of the Board, thereby denying Concrete Busters’ petition for a writ of mandamus and permanent injunction. No written reasons for judgment were issued; thus, it cannot be known on what basis trial court rendered its decision. On 16 July 2010, Concrete Busters filed a devolu-tive appeal.

This litigation is governed by Louisiana’s Public Bid Law, La. R.S. 38:2211, et seq., a law which “was enacted in- the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices.” Haughton Elevator Div. v. State, Div. of Admin., 367 So.2d 1161, 1164 (La.1979). In enacting the public bid law, the legislature has specifically prescribed the conditions under which the state will permit public work to be done on its behalf or on behalf of its political subdivisions. See Hamp’s Constr., L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104; Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Auth., 04-0211, 04-0212 (La.3/18/04), 867 So.2d 651. It is a “prohibitory law founded on public policy.” Broadmoor, L.L.C., p. 6, 867 So.2d at 656.

Given the nature of the legislative mandate, a political entity such as the Board has no authority to take any action that is inconsistent with the Public Bid |fiLaw. Id. Specifically, the public entity may not waive (1) any requirements of the public bid law, (2) any requirements stated in the advertisement for bid, or (3) any requirements stated on the bid form. La. R.S. 38:2212 A(l)(b); Hamp’s Constr., L.L.C., pp. 9-11, 924 So.2d at 110-11.

As a further effort to specify the prescribed conditions relating to the letting of public works projects, a Louisiana Uniform Public Work Bid Form was developed by the Louisiana Division of Administration pursuant to the mandate of La. R.S. 38:2212, which provides that the form so developed:

shall require only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.

La. R.S. 38:2212 A(l)(b)(ii)(aa) [emphasis supplied].

Any other documentation or information not required to be included on the public bid form itself “shall be furnished by all bidders at a later date and time, in accordance with the Bidding Documents.” La. R.S. 38:2212 A(l)(b)(ii)(bb). Section 2212 A(l)(b)(i) provides that: “[t]he provisions and requirement of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.”

li/The first issue to be addressed is whether a demolition contract is subject to the Public Bid Law. The statutory language at issue defines “public work” as follows:

[T]he erection, construction, alteration, improvement, or repair of any public facility or immoveable property owned, used, or leased by a public entity.

La. R.S. 38:2211 A(12) [emphasis supplied.].

The Board argues, relying on a Louisiana Attorney General opinion issued to the City of New Orleans in May 2010, that a contract for demolition is not subject to the Public Bid Law. La. Atty. Gen. Op. No. 10-0026 stated:

Based upon the plain language of La. Rev.Stat. 38:2211, it is our opinion that the demolition of a public facility does not fall under the purview of Louisiana’s Public Bid Law. Demolition does not involve erection, construction, alteration, improvement, or repair. Accordingly, demolition activities are not subject to the advertising and bidding requirements of Louisiana’s Public Bid Law. Similarly, we do not believe the provisions of La.Rev.Stat. 38:2241 relating to the types of bonds required for public works projects are applicable.

An opinion of the Attorney General is merely advisory and, while perhaps persuasive authority, is not binding law or jurisprudence. In Re Shiplov, 05-0498, p. 12 (La.App. 4 Cir. 10/18/06), 945 So.2d 52, 60; City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 6 n. 11 (La.3/2/99), 739 So.2d 748, 753 n. 11. But that is not why we find opinion 10-0026 inapplicable to this case.

In rendering its opinion, the Attorney General cited Regency Constr., Inc. v. Lafayette City-Parish Consol. Government, 03-313 (La.App. 3 Cir. 6/4/03), 847 So.2d 796, a case in which the court of appeal merely denied the relator’s 17application for a supervisory writ. The Attorney General opinion states in pertinent part:

There, the Court held that a contract for the removal of hurricane debris was not subject to the Louisiana Public Bid Law. In its decision, the Court recognized that the contract at issue did not involve the purchase of materials or supplies. The Court then went on to analyze whether the contract was for a “public work” as defined by statute. The Court found that the contract was not for the erection, construction, alteration, improvement, or repair of public property. Accordingly, the provisions of the public bid law were not applicable. Similarly, in Attorney General Opinion No. 07-0061 our office opined that a contract executed by St. Bernard Parish for the removal of debris left by Hurricanes Katrina and Rita was a service contract, not a public works contract, and thus not subject to the public bid law.

La. Atty. Gen. Op. No. 10-0026.

We decline to find that the demolition of a building located on public property is analogous to the removal of debris for several reasons. First, demolition is de facto an “alteration” of immovable property. La. R.S. 38:2211 A(12). Second, common sense dictates that debris is not necessarily a part of immovable property upon which it is located. Third, it is also not necessarily known from where debris came after a hurricane. Fourth, often debris is removed from private property and stored on public property pending removal, e.g., placing waste on the public street for the sanitation authority to remove and dispose of it. | ^Finally, the presence and later removal of debris does not alter the public property in the context of La. R.S. 38:2211, et seq.

Conversely, we note that one decision by the Louisiana Supreme Court and one opinion by this court involved demolition contracts that were awarded via the Public Bid Law. The issue of demolition therein was not discussed by the appellate courts, to-wit:

In Donahue v. Board of Levee Commissioners of Orleans Levee District, 413 So.2d 488 (La.1982), the public contract involved the demolition of the Bayou St. John bridge on Lakeshore Drive in New Orleans. While the facts in Donahue are not analogous to the instant matter, we note that the issue sub judice was not raised by the parties or by the three courts hearing the case.

In Hamp’s Constr., L.L.C. v. Housing Authority of New Orleans, 10-0816 (La.App. 4 Cir. 12/1/10), 52 So.3d 970, the Housing Authority of New Orleans (“HANO”) issued an invitation to bid for remediation and demolition on several of its sites. We note that the issue of whether demolition is encompassed in the Public Bid Law was raised by HANO in its appeal. However, this court did not reach the issue because the case was decided on a procedural error made by HANO in refusing to grant Hamp’s a hearing after its bid was rejected.

It is undisputed that the demolition of the Board’s shed will result in an “alteration” to the immovable property owned by the Board. Therefore, we find that the demolition of a building on public property falls within the definition of “public work” for purposes of the Public Bid Law.

|9The next issue is whether Griffin’s failure to “clip” the written acknowledgments of addenda to its bid affects the bid’s responsiveness. Pursuant to La. R.S. 38:2212 A(l)(b), the public entity may not waive any requirements of the Public Bid Law, any requirements stated in the advertisement for bids, or any requirements stated on the bid form. The bid form contains a place for the bidder to acknowledge receipt of the addenda. The question presented for our decision is whether the bid form alone is sufficient without the formal attachment of the additional separate acknowledgements requested by the Board.

La. R.S. 38:2211 A(2) defines the “bidding documents” as “the bid notice, plans and specifications, bidding form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract.” The Board created Addenda Nos. 1 and 2 for all prospective bidders. Each Addendum contained a certain separate acknowledgement form, stating:

The notice of Addendum No. 1 [and No. 2] is sent to you with the last sheet in duplicate. Upon receipt, please sign and clip one copy to your bid; and sign the other copy and return promptly by mail or facsimile machine to the Port of New Orleans. FAX: 504-528-3445. [Emphasis supplied.]

We agree with the Board that these separate acknowledgements are not required by the Public Bid Law. However, the Board made them a part of the bidding documents; the addenda contained certain specific instructions, and the lowest bidder did not comply with those instructions. The Board contends that the acknowledgments were documents that could be furnished by all bidders at a later date and time, “in accordance with the Bidding Documents,” citing La. R.S. 11038:2212 A(l)(b)(ii)(bb). However, the Addenda, which were part of the bidding documents, did not state that the acknowledgements could be provided at a later date; they specifically stated that they were to be returned with the bid. Because the Board cannot waive any of the requirements stated in the advertisement for bids, La. R.S. 38:2212 A(l)(b)(i), the bid submitted by Griffin should have been disqualified. Therefore, we find that the trial court erred in denying Concrete Busters’ writ of mandamus and preliminary injunction.

Based on the foregoing, we reverse the decision of the trial court. We render judgment in favor of Concrete Busters of Louisiana, Inc. and against the Board of Commissioners of the Port of New Orleans ordering that the project for work at issue in this appeal be awarded to Concrete Busters of Louisiana, Inc., thereby granting the writ of mandamus in favor of the plaintiff/appellant and against the defendant/appellee.

REVERSED; JUDGMENT RENDERED.

      . This is not to say that debris removal might not be subject to the Public Bid Law in the appropriate case. In this case, we find only that demolition comes within the definition of an "alteration” for purposes of the Public Bid Law.

      . Apparently, in amending La. R.S. 38:2212 in 2008, the legislature intended to modify, if not legislatively overrule in part, Hamp's Constr,, L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104. That is, the legislature by requiring the "Louisiana Uniform Public Work Bid Form” set forth uniform minimal requirements for bidding on public works. A public body could make additional and more stringent requirements. Thus, the legislature has for the most part mooted the issue of whether a bid is responsive, whether a part of the request for bids may be waived by the public body, and what is an informality or immaterial in the bid request and the bid itself.


author: EDWIN A. LOMBARD, Judge.

text:
    Rev. Norwood THOMPSON, Jr. and/his Wife Wynnette Thompson v. BANK ONE OF LOUISIANA, NA, et al.
    No. 2010-CA-1489.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 2011.
    Rehearing Denied April 18, 2011.
    Writ Denied June 24, 2011.
    Harry E. Cantrell, Jr., The Cantrell Law Firm, New Orleans, LA, for Plaintiffs/Appellants.
    John W. Hite III, Susan G. Guillot, Sal-ley Hite & Mercer, LLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

|,The plaintiffs appeal the summary-judgment granted in favor of defendant Bank One of Louisiana, NA (Bank One). After de novo review, we find that a genuine issue of material facts exists and reverse the judgment of the trial court.

Relevant Facts and Procedural History

In 1999, a dispute arose between Reverend Norwood Thompson, Jr. and First Zion Baptist Church of New Orleans (“the church”) which eventually resulted in Reverend Thompson’s removal as pastor of the church and a petition for damages filed by Reverend Thompson and his wife, Wyn-nette Thompson, alleging claims of defamation and/or negligence and naming as defendants the church, several members of the church, and Bank One. Pertinent to this appeal, Bank One gave members of the church information about a Certificate of Deposit (CD) issued by the bank to First Zion Baptist Church in the amount of $51,000.00. This was subsequently discovered to be incorrect as the CD in question was, in fact, issued to First Zion Baptist Church of Jefferson. Reverent Thompson alleges that, as a result of the erroneous information negligently disseminated by Bank One, he |¿was accused by members of the church of using church funds to purchase a personal CD. Accordingly, the plaintiffs asserted both a defamation and negligence claim against Bank One. In March 2007, however, partial summary judgment was rendered in favor of Bank One, dismissing the defamation claim. In 2010, Bank One filed the instant motion for summary judgment seeking dismissal of the remaining claim. The trial court granted summary judgment and this appeal follows.

Applicable Law

Motions for summary judgment are reviewed de novo on appeal “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. The burden of proof is with the movant on summary judgment but, where the movant will not bear the burden of proof at trial, the movant need only 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. La.Code Civ. Proc. art. 966(C)(2); Greenhouse v. C.F. Kenner Associates Ltd. P’ship, 98-0496, p. 4 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1007. Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish that a genuine issue of material facts exists such that summary judgment is not appropriate. La.Code Civ. Proc. art. 966(C)(2); Greenhouse, supra.

|sTo establish negligence, a “[pjlaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached.” Questions of liability for negligent acts are evaluated using a duty-risk analysis. Daye v. Gen. Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654, 659.

La.Rev.Stat. 6:1124 provides that no financial institution shall have a fiduciary obligation to its customers in the absence of a written agreement wherein the financial institution agrees to act as a fiduciary.

Discussion

On motion for summary judgment, Bank One points out that the plaintiffs are not Bank One account holders and Bank One did not provide any erroneous information with regard to any account owned by the plaintiffs. Accordingly, Bank One argues that the plaintiffs cannot establish a negligence claim against Bank One because the plaintiffs cannot establish that Bank One owed a duty to the plaintiffs. In addition, Bank One suggests that, in the absence of a written agreement, banks are immune from liability pursuant to La.Rev. Stat. 6:1124. In support of their motion, Bank One attaches the deposition of Reverend Thompson wherein he concedes that he has never had a personal account with Bank One.

In response, the plaintiffs point out that Bank One acquired the church account in a 1998 merger with First National Bank of Commerce (First NBC) and, as evidenced by the documents creating the church account, Reverend Thompson (as pastor) was a designated agent of the church on the account and, in fact, executed the agreement opening the account on behalf of the church. In support of his opposition, Reverend Thompson attaches a copy of the document entitled | Repository and Borrowing Resolutions and Agreement that he signed on behalf of the church on May 27, 1997, that opened the church account and indicates that, as pastor, he was a designated agent authorized to act on behalf of the church with regard to the bank account.

After de novo review, we find that based on this document a genuine issue of material fact exists as to whether a sufficient nexus exists between Reverend Thompson and Bank One such that the defendant owed a duty of care to him. Moreover, as this Court has previously determined, in enacting La.Rev.Stat. 6:1124 the “legislature did not intend to totally immunize banks from all legal duties in their relationship with customers and third parties.” Bizcapital Business & Industrial Development Corp. v. Union Planters Corp., 2003-2208 (La.App. 4 Cir. 9/8/04), 884 So.2d 623, 627.

Conclusion

Because a genuine issue of material fact exists, the defendant is not entitled to summary judgment as a matter of law. Accordingly, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.


author: McClendon, j.

text:
    STATE of Louisiana v. Kevin Paul BENOIT.
    No. 2010 KA 1766.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Joseph Waitz, District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, LA, for Second Appellant State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant Kevin Paul Benoit.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

|2The defendant, Kevin Paul Benoit, was charged by bill of information with one count of indecent behavior with a juvenile, H.G., a violation of La. R.S. 14:81, and pled not guilty. Following a jury trial, he was found guilty as charged. Thereafter, the State filed a habitual offender bill of information against him, alleging he should be sentenced under LSA-R.S. 15:537 B. The defense moved to quash the habitual offender bill of information, and the motion was granted. The defendant was sentenced to twenty years at hard labor, with the first five years without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, contending the trial court erred in allowing the introduction into evidence of State Exhibit # 1, which failed to comply with the authentication requirements of 28 U.S.C. § 1738 and LSA-C.E. art. 902(4). The State also appeals, contending the trial court erred in granting the motion to quash the habitual offender bill. For the following reasons, we find no merit in either assignment of error and affirm the conviction and sentence.

FACTS

At trial on January 20, 2010, the victim, H.G., who was born on September 26, 2002, testified that she lived with her father in Prairieville, but that she visited her mother’s house sometimes. She indicated that on a visit to her mother’s house two years earlier, the defendant touched the top of her “cookie” or “private” when she was in the bedroom, while her mother was using the bathroom.

The State also played a recording of a September 24, 2007 interview with the Terrebonne Children’s Advocacy Center. In the interview, the victim stated “Kevin” lived with her mother and had touched her “private” with his hand, under her panties, when she was visiting her mother. The victim indicated the touching occurred when she was lying between “Kevin” and her mother on the Rbed. The victim identified the vagina on a sketch of a girl as the “cookie” or “private.”

The victim’s mother, B.O., who was divorced from the victim’s father, also testified at trial. During August of 2007, B.O. was involved in a relationship with the defendant, a convicted sex offender from Mississippi. The defendant told B.O. the charges against him in Mississippi were false. The victim lived with her father, but visited B.O. As part of the custody agreement, B.O. had been ordered not to allow the defendant to be at home when the victim visited. B.O. conceded, however, that sometimes the defendant was present in her home when the victim visited.

In August of 2007, the victim told B.O. that the defendant had touched her “on her cookie” while B.O. was in the shower. B.O. argued with the defendant and then went with the victim to the home of B.O.’s mother. Thereafter, the victim went back to live with her father, and B.O. went back to live with the defendant. B.O. did not report the victim’s accusation against the defendant to the police.

Approximately two days later, on August 17, 2007, B.O. married the defendant. According to B.O., on the day of the wedding, the defendant told her he had touched the victim “over her panties,” but he was sorry and it would never happen again. Also according to B.O., the defendant told her he was on parole in Mississippi because he had “fingered” a girl while he masturbated and had tried to have sex with her. Also according to B.O., after the defendant was arrested, he told her to tell his lawyer that the victim’s accusation against him “wasn’t true” and that he had never been around her. B.O. claimed the defendant told her if she did not say what he told her to say, she would never see her children again and would lose her home.

The defendant also testified at trial. He denied sexually abusing the victim. He denied being around B.O. while her children were present and specifically denied being present when the victim was visiting B.O. in August orJjSeptember of 2007. He also denied confessing to B.O. that he had abused the victim or anyone else.

The defendant conceded he pled guilty in connection with predicate # 1, but claimed he only did so because his attorney told him he would “probably receive probation.”

APPLICABILITY OF 28 U.S.C. § 1738

In his sole assignment of error, the defendant argues the trial court erred in allowing the introduction into evidence of State Exhibit # 1, which failed to comply with the authentication requirements of 28 U.S.C. § 1738 and LSA-C.E. art. 902(4).

Section 1738 of Title 28 of the United States Code provides, in pertinent part:

The Acts of the legislature of any State, ... of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, ... thereto.
The records and judicial proceedings of any court of any such State, ... or copies thereof, shall be proved or admitted in other courts within the United States ... by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State, ... from which they are taken.

Louisiana Code of Evidence art. 902, provides, “Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: ... (4) Presumptions under Acts of Congress and the Louisiana Legislature. Any signature, document, or other matter declared by Act of Congress or by Act of the Louisiana Legislature to be presumptively or prima facie genuine or authentic.”

During trial, the State offered into evidence State Exhibit # 1, which included a copy of a January 22, 1997 grand jury indictment, under State of Mississippi, County of Rankin, Cause # 6076. The indictment charged that on September 27, 1996, Kevin Paul Benoit committed one count of gratification of |slust and one count of sexual battery involving K.B., a child over the age of twelve years, but under the age of eighteen years, while Kevin Paul Benoit was in a position of trust, being the child’s stepparent. State’s Exhibit # 1 also included a copy of a July 7, 1997 judgment of conviction in the same case, indicating that following advice of his Miranda rights, Kevin Paul Benoit pled guilty to sexual battery in the case. Additionally, State’s Exhibit # 1 further included a copy of a July 18, 1997 order of sentence in the same case, indicating Kevin Paul Benoit was sentenced for sexual battery to fifteen years in the custody of the Mississippi Department of Corrections, with execution of the last seven years stayed and suspended on condition of Kevin Paul Benoit successfully completing three years of supervised probation. The copies of the indictment, judgment of conviction, and order of sentence were stamped with the seal of the Circuit Court of Rankin County, Mississippi, and certified true and correct copies by Carol B. Swilley, Circuit Clerk.

The defense objected to State Exhibit # 1, arguing the exhibit failed to satisfy the “double certification” requirement of 28 U.S.C. § 1738 and LSA-C.E. art. 902(4), as it lacked the certification of the judge of the court that the attestation was in proper form. The State argued State Exhibit # 1 was self-authenticating under LSA-C.E. art. 902(1), as “[a] document bearing a seal, ... purporting to be that of ... any state, district, ... or of a political subdivision, department ... thereof, ... and a signature purporting to be an attestation....” The court ruled in favor of the State, and the defense objected to the ruling of the court.

There was no error. Section 1738 of Title 28 of the United States Code did not bar admission of State Exhibit # 1 in this case. 28 U.S.C. § 1738 was enacted to implement the full faith and credit clause of the United States Constitution by providing a way of exemplifying the records of judicial proceedings held in one state so that such records would be admissible in later judicial proceedings held in another state. Thus, this statute merely means full faith and credit must be given if certain requirements are met. However, | (¡evidence of judicial proceedings may be admissible if less is shown than the statute requires when it conforms to the rules of evidence of the state where the trial is being held. Furthermore, any stringent rules as to what is required to prove a prior conviction or identity of the convicted person in another state is somewhat obviated by the defendant’s own admission that he was in fact previously convicted of a felony in that state. Donald v. Jones, 445 F.2d 601, 606 (5th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971). State Exhibit # 1 was self-authenticating under LSA-C.E. art. 902(1). See State v. Uloho, 04-55, pp. 20-22 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 931-32, writ denied, 2004-1640 (La.11/19/04), 888 So.2d 192, and writ denied 08-2370 (La.1/30/09), 999 So.2d 753.

This assignment of error is without merit.

THE STATE’S APPEAL OF GRANTING OF MOTION TO QUASH

The State appeals from the granting of the motion to quash the habitual offender bill of information, arguing the trial court erred in refusing to use the defendant’s Mississippi sexual battery conviction to sentence him under LSA-R.S. 15:537 B.

Louisiana Revised Statutes 15:537 B provides:

The court shall sentence a person who has on two or more occasions previously pleaded guilty, nolo contendere, or has been found guilty of violating R.S. 14:42, 42.1, 43, 43.1, 43.2, 43.3, 43.4, 43.5, 78, 78.1, 80, 81, 81.1, 81.2, 89.1, or 107.1(C)(2) to life imprisonment without the benefit of parole, probation, or suspension of sentence.

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Peters, 05-2069, pp. 4-5 (La.App. 1 Cir. 5/5/06), 935 So.2d 201, 203.

It is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language is interpreted by the courts on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting |7those statutes. It is further presumed that the legislative branch intends to achieve a consistent body of law. Peters, 05-2069 at p. 5, 935 So.2d at 203-04.

A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. LSA-R.S. 14:3. Moreover, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. The rule of lenity applies not only to interpretations of the substantive ambit of criminal laws, but also to the penalties imposed by those laws. Peters, 05-2069 at p. 5, 935 So.2d at 204.

The defense moved to quash the habitual offender bill of information, arguing, inter alia, the defendant should not be sentenced under LSA-R.S. 15:537 B because the guilty plea from Rankin County, Mississippi, was not a violation of La. R.S. 14:42, 42.1, 43, 43.1, 43.2, 43.3, 43.4, 43.5, 78, 78.1, 80, 81, 81.1, 81.2, 89.1, or 107.1(C)(2). At the hearing on the motion, the defense argued the language of LSA-R.S. 15:537(B) was plain and specific and did not allow consideration of a crime from another state. The State argued sexual battery in Mississippi was “substantially similar” to sexual battery in Louisiana, a violation of LSA-R.S. 14:43.1; the court could take cognizance of the fact the sexual battery in Mississippi would also be a sexual battery in Louisiana; and thus, the court should sentence the defendant under La. R.S. 15:537 B. The court granted the motion to quash, noting, “[LSA-R.S. 15:537 B] specifically points out Revised Statute 14:78, 78.1, et cetera, et cetera, et cetera. It doesn’t have anything to say in here about ‘or similar offenses in other jurisdictions[.]’ It is very, very specific. This Court doesn’t make laws, as some other Courts do. The Court follows the law.”

Promulgation of laws is a legislative function. As noted by the trial court, by its express terms, LSA-R.S. 15:537 B allows consideration of certain enumerated violations of the Louisiana Revised Statutes, but the statute contains no language allowing consideration of offenses from other states, which if 18committed in this state, would also violate those statutes. The fact that the Legislature drafted LSA-R.S. 15:537 B without such language prevents us from considering the violations that occurred in Mississippi. This assignment of error is without merit.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . The victim is referenced herein only by her initials. See LSA-R.S. 46:1844 W.

      . Predicate # 1 was set forth as the defendant's July 7, 1997 guilty plea, under Rankin County Circuit Court (Mississippi) case # 6076, to sexual battery. Predicate # 2 was set forth as the defendant's January 27, 1986 guilty plea, under Seventeenth Judicial District Court Docket # 171,542, to carnal knowledge of a juvenile.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In other instances, the legislature has chosen to include specific language which allows Louisiana courts to consider convictions in other jurisdictions. See LSA-R.S. 15:529.1 A(l) prior to its amendment by 2010 La. Acts Nos. 911, § 1 and 973, § 2, LSA-R.S. 14:98 F(l), and LSA-R.S. 40:966 E(4).

      . We do not reach the issue of whether or not the defendant could have been sentenced as a habitual offender pursuant to LSA-R.S. 15:529.1 (A)( 1 )(b)(ii), prior to its amendment by 2010 La. Acts Nos. 911, § 1 and 973, § 2.