author: ROLAND L. BELSOME, Judge.

text:
    CHIMNEYWOOD HOMEOWNERS ASSOCIATION, INC. v. EAGAN INSURANCE AGENCY, INC., Westport Insurance Corporation, Maurice F. Eagan, Jr., Jay W. Oppenheim, and Connie Martiny. Laverne Darnell v. Eagan Insurance Agency, Inc., Westport Insurance Corporation, and Chimneywood Homeowners Association, Inc.
    Nos. 2010-CA-0368, 2010-CA-0369.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 2, 2011.

      Scott T. Winstead, Sutterfield & Webb, LLC, L. Gerome Smith, L. Gerome Smith Law Office, New Orleans, LA, for Interve-nor/Appellant, Sutterfield & Webb, LLC.
    Julia P. McLellan, Gordon P. Serou, Jr., Law Offices of Gordon P. Serou, Jr., L.L.C., New Orleans, LA, for Gordon P. Serou, Jr. and The Law Offices of Gordon P. Serou, Jr., LLC.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| iAppellant, Sutterfield <& Webb, LLC, appeals the trial court’s order allocating a contingency fee between Appellant and attorney Gordon P. Serou, Jr. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Chimneywood Homeowners Association, Inc., the original plaintiff, hired John Ryan in December 2005 to assert a claim on its behalf against Eagan Insurance Agency and other Defendants. The retainer agreement between Chimneywood and Mr. Ryan provided that Chimneywood would pay Mr. Ryan $75.00 per hour in addition to a 20% contingency fee.

In September 2006, with Chimneywood’s consent, Mr. Ryan also engaged Sutter-field & Webb, L.L.C. (“S & W”) to assist with the claim. Gordon Serou, a former law partner of Mr. Ryan, was a salaried attorney at S & W. While he was an attorney at S & W, Mr. Serou represented Chimneywood with Mr. Ryan from September 2006 until July 2007. An agreement between S & W and Chimneywood provided that S & W would work on the case with Mr. Ryan for an hourly rate of | ¾$75.00, and an agreement between S & W and Mr. Ryan provided that S & W would receive 40% of Mr. Ryan’s 20% contingency fee.

On July 13, 2007, Mr. Serou resigned from S & W. Mr. Ryan subsequently contacted James Sutterfield, a senior partner at S & W, regarding a transfer of the Chimneywood file to Mr. Serou. Mr. Sut-terfield requested a directive from Chim-neywood before transferring the file. On July 31, 2007, Debbie Gordon, president of Chimneywood, provided an email directive authorizing the transfer of the Chimney-wood file to Mr. Serou at his new firm.

From that point forward, Mr. Serou represented Chimneywood with Mr. Ryan. Mr. Serou was paid $75.00 per hour by Chimneywood, and Mr. Ryan advised Chimneywood that Mr. Serou would receive 40% of Mr. Ryan’s 20% contingency fee. After Mr. Serou resigned, he acknowledged in email correspondence to Mr. Sutterfield that S & W had an interest in the contingency fee.

|o!n May 2008, the matter settled for $1,250,000.00, with a resulting 20% contingency fee of $250,000.00. The settlement check was made out to “John H. Ryan & Gordon P. Serou Jr. Attys & Chimney-wood Homeowners Association Inc.” S & W consented to the disbursement of 60% of the $250,000.00 fee, or $150,000.00, to Mr. Ryan. The remaining 40% of the fee amounted to $100,000.00.

After S & W filed a Petition of Intervention to assert rights regarding its alleged share of the contingency fee, Mr. Ryan, Mr. Serou, and Scott Winstead of S & W filed a Joint Motion and Order to Deposit Funds into the Registry of the Court Pending Resolution of Attorneys’ Fee Dispute. The court granted the motion on June 27, 2008, and Mr. Ryan subsequently deposited the $100,000.00 in disputed funds into the registry of the court.

On June 20, 2008, all parties agreed to dismiss the underlying litigation against Eagan and the other Defendants with prejudice, and a Joint Motion and LJudgment of Dismissal, was signed on that date. After the case was dismissed, Mr. Serou filed a Motion to Withdraw Attorney’s Fee from the Registry of the Court, asserting that he and other attorneys at S & W worked a total of 99.2 hours on the case before resigning, and that after his resignation from S & W, Mr. Serou and his associate at The Law Offices of Gordon P. Serou, Jr., L.L.C., worked for a total of 150.2 hours on the case. He calculated that of the total 249.4 hours, he worked 60.22453% of the hours while employed at his new law practice, and 39.77546% of the hours while employed through S & W. Accordingly, Mr. Serou maintained that he should be awarded $60,224.53 of the $100,000.00 in disputed funds.

S & W filed a Motion to Strike, and in the alternative, an Exception of No Right of Action. S & W also filed its own'Motion to Withdraw Funds From the Registry. In the motion, S & W argued that Mr. Serou and The Law Offices of Gordon P. Serou, Jr., L.L.C. were not parties to the action and that Mr. Serou’s motion to withdraw should be stricken; and that Mr. Serou and his new practice had no right of action to recover funds from the registry of the court, nor any interest in the suit. 5 & W further argued that it was entitled to the entire $100,000.00 fee remaining in the registry of the court, while Mr. Serou had no right to any portion of the fee. S 6 W served a copy of the motion to Mr. Serou.

In October 2008, the trial court denied S & W’s motion to strike and exceptions, but made no ruling with respect to the other pending motions. S & W subsequently-filed a Motion for Leave to File Supervisory Writ Application and to Stay Further Proceedings Pending the Supervisory Writ. The trial court granted leave to file the writ, but denied S & W’s request for a stay of the proceedings. S & W filed supervisory writ 2008-C-1358, seeking relief from the court’s denial of the request for a stay. The writ was denied by this Court on November 3, 2008. | ¡/Thereafter, on November 21, 2008, S & W filed writ application 2008-C-1439, regarding the court’s denial of its motion to strike and exceptions. This supervisory writ application was also denied by this Court.

Trial in the matter was held August 10, 2009. At trial, Gordon Serou, John Ryan, Debbie. Gordon, Max Cohen, and James Sutterfield testified. After taking- the matter under advisement, the trial court awarded 50% of the proceeds in the registry to S & W and the other 50% to Gordon Serou. This appeal followed.

STANDARD OF REVIEW

Factual determinations are subject to the manifest error standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Likewise, mixed questions of law and fact are also reviewed under the manifestly erroneous standard of review. CII Carbon, L.L.C. v. Nat’l Union Fire Ins. Co. of Louisiana, Inc., 2005-0071 (La.App. 4 Cir. 8/17/05), 918 So.2d 1060, 1065, writ denied, 2005-2408 (La.3/24/06), 925 So.2d 1235 (citing Tadlock v. Taylor, 2002-0712, p. 17 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 33, unit denied, 2003-3265 (La.3/12/04), 869 So.2d 819).

DISCUSSION

Assignment of Error # 1

Appellants first argue that the trial court erred in denying S & W’s Motion to Strike and Alternative Exception of No Right of Action. Appellants submit that Mr. Serou had no right of action and was not a proper party, as he failed to take an action to assert his right to any funds until after the case was dismissed, when he | ñfiled a Motion to Withdraw Attorney’s Fee From the Registry of the Court; thus, Mr. Serou’s intervention is precluded, and he has no legal right to proceed.

Mr. Serou submits that his status as a party to the proceedings was confirmed when S & W served him with its own motion to withdraw funds from the registry. Additionally, he contends that S & W is estopped from contending that Mr. Ser-ou could not assert a claim to the fee, because the Joint Motion and Order to Deposit Funds into the Registry of the Court was also filed after the court dismissed the action against Eagan Insurance and the other defendants. Mr. Serou further argues that he is an indispensable party to these proceedings. See Saucier v. Hayes Dairy Products, 373 So.2d 102, 119 (La.1979)(on rehearing)(citing La. C.C.P. arts. 645 and 927).

We find that S & W is judicially-estopped from arguing that Mr. Serou was not a proper party to the litigation. See Miller v. Conagra, Inc., 08-0021, p. 9 (La.9/8/08), 991 So.2d 445, 452 (recognizing that “the Supreme Court of the United States has generally described judicial es-toppel as an equitable doctrine designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”)(citing New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968 (2001)). Accordingly, the trial court properly denied S & W’s Motion to Strike and Alternative Exception of No Right of Action. This assignment of error lacks merit.

17Assignment of Error # 2

In the second assignment of error, Appellants argue that this case is a contract dispute rather a dispute regarding a legal fee, and that the trial court erred in applying Saucier. While Appellants concede that Saucier is the seminal case in Louisiana regarding fee disputes between attorneys and their clients, Appellants argue Saucier is nevertheless inapplicable to fee splitting disputes between lawyers.

In the trial court’s written reasons for judgment, • the court found that Saucier was controlling, and thus considered the following factors in making its determination:

1.) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service property-
2.) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3.) The fee customarily charged in the locality for similar legal services.
4.) The amount involved and the results obtained.
5.) The time limitations imposed by the client or by the circumstances.
6.) The nature and length of the professional relationship with the client.
7.) The experience, reputation and ability of the lawyer or lawyers performing the services.
8.) Whether the fee is fixed or contingent.

|sThe trial court “considered all of these factors, the testimony, the exhibits, including the time records and invoices submitted by each party, and f[ound] that the contingency fee of $100,000, currently on deposit in the registry of the court, shall be allocated between Gordon Serou, Esq. and Sutterfield and Webb, LLC with each being entitled to 50% of the $100,000 fee on deposit.” Appellants argue that Saucier is inapplicable to these facts, because the agreement for the portion of the contingency fee was between Mr. Ryan and S & W, not between S & W and Chimney-wood, and therefore, the, agreement between Mr. Ryan and S & W must be enforced as written. Notably, however, the language in S & W’s petition of intervention itself ostensibly triggers application of the Saucier factors, because the object of S & W’s petition of intervention is plainly Chimneywood, not Mr. Serou or Mr. Ryan. See Verges v. Dimension Development Company, Inc., 2008-1336 (La.App. 4 Cir. 2/10/10), 32 So.3d 310, 317 (Murray, J., dissenting)(noting that “[i]n Saucier, the court ... recogniz[ed] the discharged attorney’s right to receive fair compensation [from the client] for work performed before being discharged.”). Furthermore, we find that Appellants’ reliance upon jurisprudence purporting to support the argument that Saucier should not be applied to these facts is misplaced.

Duer & Taylor v. Blanchard, Walker, O’Quin & Roberis, which pre-dates Saucier, involved an inquiry into whether an action by one attorney to share a fee that was collected over three years prior to the action being filed was subject to a prescriptive period of three years or ten years. Duer, 354 So.2d 192, 194 (La.1978). The Court in Warner v. Carimi Law Finn considered whether a provision of an employment contract regarding division of attorney fees paid in cases lainvolving clients that the contract attorney brought with him upon departure from the firm violated the Code of Professional Responsibility; in this case, however, a fee sharing agreement between Mr. Serou and S & W is not at issue. Warner v. Carimi Law Firm, 98-613, p. 7 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, 596.

Scurto v. Siegrist, a case also relied upon by Appellants, held that an agreement regarding division of a contingency fee between two attorneys not of the same firm, but jointly representing a client, was valid and enforceable because Scurto, the retained attorney, “was actively and continually involved with the case by frequently communicating with the client, advancing all expenses he was requested to pay, researching jurisprudence and statutory law, and attending depositions on behalf of his client.” Dukes v. Matheny, 2002-0652, p. 4 (La.App. 1 Cir. 2/23/04), 878 So.2d 517, 520 (citing Scurto v. Siegrist, 598 So.2d 507, 510 (La.App. 1st Cir.1992)). The record does not evidence that in this case, S & W, the retained firm, continued to be involved with the case after transferring the Chimneywood file to Mr. Serou at his new firm, pursuant to the email directive from Debbie Gordon.

Furthermore, Debbie Gordon unequivocally testified at trial that she discharged S & W after Mr. Serou resigned from S & W. Mr. Ryan similarly | ^confirmed that S & W was discharged by Chimneywood subsequent to Mr. Serou’s departure from the firm. This fact is further demonstrated by the lack of evidence in the record indicating that S & W participated in the litigation of the matter until the case was resolved by settlement.

In Dukes v. Matheny, the First Circuit revisited Scurto, holding that “the finding of a joint venture has been based on the fact that neither attorney has been discharged and both were actively involved in the case and remained responsible to their client.” Dukes v. Matheny, 2002-0652, p. 4 (La.App. 1 Cir. 2/23/04), 878 So.2d 517, 520. Thus, even assuming arguendo that S & W was unaware that it had been discharged by Chimneywood, there is no evidence in the record that S & W remained “actively involved in the case” subsequent to Mr. Serou’s departure. See _[nid. Therefore, “in the absence of joint representation and a written agreement with the client, if an oral agreement to divide a fee existed in this case, the fee could be divided only on a quantum meruit basis.” Dukes, p. 6, 878 So.2d at 521 (citing Rules of Professional Conduct, Rule 1.5(e)(1)); Brown v. Seimers, 98-694 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1022; and Matter of P & E Boat Rentals, Inc., 928 F.2d 662, 665)(5th Cir.1991)(emphasis added)).

Even Fox v. Heisler, also relied upon by Appellants, refers to Scurto as “a Duer situation, that is, two attorneys not of the same firm jointly representing a client.” Fox v. Heisler, 2003-1964, p. 9 (La.App. 4 Cir. 5/12/04), 874 So.2d 932, 938. In Fox, when the plaintiff attorney John Fox left defendant’s employment, he made a verbal agreement with the defendant, Frederick Heisler of Heisler & Wysocki, to share fifty percent of the attorneys’ fees in “the Chris Mann” matter, an extremely lucrative case which Mr. Fox had brought with him when he left Heisler’s employ. Fox, 2003-1694, p. 3, 874 So.2d at 934. When Mr. Fox left defendant’s firm, he took a total of 211 case files with him; at the time of trial, Mr. Fox had remitted the agreed-upon fifty percent fee “in at least 74 cases, including two prior fees collected in the Chris Mann case as partial settlements.” Id., 2003-1694, p. 3, 874 So.2d at 934-35. Mr. Fox brought a declaratory judgment action to determine the rights of each party with respect to the legal fees generated in the Mann case, and Mr. Heisler filed a motion for summary judgment alleging that fifty percent of the fees were due and payable to him. Id., 2003-1694, p. 2, 874 So.2d at 934.

112This Court concluded that the situation presented therein was “neither a suit for recovery of attorney’s fees nor a suit over the terms of the settlement agreement.” Id., 2003-1694, p. 9, 874 So.2d at 938. In affirming the trial court’s grant of summary judgment in favor of Mr. Heis-ler, this Court recognized that Mr. Heisler advanced costs to Mr. Fox; that Mr. Heis-ler kept records concerning the case; that “[wjithout [Mr. Heisler’s] involvement in the Mann case, [Mr. Fox] might have gone bankrupt and could no longer represent Client”; that Mr. Fox had faithfully adhered to the oral contract he made with Mr. Heisler for thirteen years; and that Mr. Fox and Mr. Heisler had previously agreed to split fees 50/50 on two separate occasions specifically regarding the Mann ease. Id. at p. 10. Accordingly, this Court found that the well-established oral agreement between Mr. Fox and Mr. Heisler was valid and enforceable. Id. at 939.

In contrast to the instant case, although Mr. Serou acknowledged that S & W had an interest in the fee, Mr. Serou and S & W made no agreement with regard to fee splitting, and Mr. Serou and S & W did not jointly represent Chimneywood. Rather, Mr. Ryan and Mr. Serou jointly represented Chimneywood from the time of Mr. Serou’s departure from S & W until the time of settlement, with Mr. Serou | ^performing virtually all of the work on the .case, both prior and subsequent to his departure from S & W.

We find, as the trial court did, that Saucier is applicable to the facts of this case. In Saucier, plaintiff Fred Saucier hired attorney George Reese to represent him on a contingency basis in connection with an automobile accident that occurred on February 9, 1971. Pursuant to the agreement, Mr. Reese would receive one-third of any recovery. Mr. Reese filed suit on behalf of Mr. Saucier on January 25, 1972. On January 15, 1975, Mr. Saucier discharged Mr. Reese and hired new counsel. Mr. Reese subsequently intervened, asserting that he was entitled to one-third of any recovery. The case settled for $75,000.00.

The trial court awarded Mr. Reese $8,000.00, plus court costs and medical expenses that Mr. Reese paid on behalf of Mr. Saucier. On appeal, this Court increased the award to one-third of the total recovery, or $25,000.00.

On rehearing, the Louisiana Supreme Court recognized that the Disciplinary Rules allowed for contingency fee contracts, provided that such contract does not restrict the client’s right to discharge the attorney (with or without cause) “or result in an attorney collecting a ‘clearly excessive’ fee which has not been ‘earned’ as defined by the [Disciplinary R]ules.” Saucier, 373 So.2d at 117. Likewise, the Court concluded that the Disciplinary Rules did not conflict |14with La. R.S. 37:218, as “[t]he collection of excessive amounts for which no commensurate service was performed is not vouchsafed by the provisions of the statute.” Id. Thus, the Court held that only one contingency fee would be owed by the client, and “that fee should in turn be allocated between or among the various attorneys involved in handling the claim in question, such fee apportionment to be on the basis of factors which are set forth in the Code of Professional Responsibility.” Id. at 118. Accordingly, the fee was to be apportioned according to the respective efforts and contributions of the attorneys for work performed, while also taking into consideration the factors articulated in the Code of Professional Responsibility. Id.

11fiWe find that the trial court properly held, after consideration of the Saucier factors, that S & W was not entitled to the entirety of the remaining $100,000.00 of the contingency fee. “[E]ven with a contract, the client has a right to discharge the attorney (and terminate the contract) at any time, with or without cause, subject to liability for payment for reasonable attorney’s fees.” Francis v. Hotard, 2000-0302 (La.App. 1 Cir. 3/30/01), 798 So.2d 982, 985, writ not considered, 2001-1323 (La.6/22/01), 793 So.2d 1263 (citing Scott v. Kemper Insurance Company, 377 So.2d 66, 70 (La.1979) and Gravity Drainage Dist. No. 2 v. Edwards, 207 La. 1, 20 So.2d 405, 406 (1944)); see also Saucier, supra, at 107 (Tate, Justice, dissenting)(“Upon termination, the attorney is entitled to recover only the value of his services, not the original contingent fee under the contract, which contemplated that he perform the full and entire services leading to the settlement rather than only part of them.”).

Under these particular facts and circumstances, the trial court correctly determined that the remainder of the contingency fee should be disbursed “according to the respective services, and contributions of the attorneys for work performed and other relevant factors.” Saucier, 373 So.2d at 118. Had the entire contingency fee been deposited in the court’s registry, S & W’s arguments might be more persuasive; however, S & W and Mr. Serou inexplicably consented to the release of 60% of the funds to Mr. Ryan, leaving S & W to contest the remaining 40% with Mr. Serou, despite the fact that both Mr. Serou and S & W had | ^agreements with Mr. Ryan to receive 40% of the contingency fee. Accordingly, we cannot say that the trial court’s factual finding that S & W and Mr. Serou were each entitled to fifty percent of the remaining fee is manifestly erroneous or clearly wrong.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed.

AFFIRMED.

      . Chimneywood asserted that Eagan Insurance Agency, Inc., purchased the incorrect flood insurance coverage for its property, and that consequently, Chimneywood did not have full coverage for losses sustained during Hurricane Katrina.

      . At the time of trial, Ms. Gordon was no longer president of Chimneywood.

      . John Ryan forwarded the email directive from Debbie Gordon to Jim Sutterfield the same day, requesting that Mr. Sutterfield "[pjlease forward the [Chimneywood] files to Gordon without delay.” Mr. Sutterfield responded the same day, and wrote the following:
      John,
      Will do- — I understand that [Mr. Serou] is coming here in the morning to pick up some furniture and [the Chimneywood files] will be on his desk when he does so.
      Jim

      . This agreement is evidenced by email correspondence dated January 22, 2008, from Mr. Ryan to Debbie Gordon in which Mr. Ryan stated:
      Debbie:
      Legal ethical requirements require that I obtain your agreement when I agree to split a legal fee with another lawyer.
      Part of the fee in the suit against Eagan is contingent, that is, it is subject to obtaining a recovery from Eagan. The fee is 20% of the recovery. Gordon Serou and I have agreed to split this fee as follows: 12% to me and 8% to Gordon. Please confirm your agreement with this arrangement. Thank you.
      Debbie Gordon responded to the email the same day with the reply, "Yes I agree to this.”

      . On July 20, 2007, Mr. Serou sent the following e-mail correspondence to James Sutter-field:
      Jim — Thank you.
      You have an interest in the contingency fee, which I will help you protect. If you need me to do anything on this point, let me know.
      Yours, Gordon

      . Debbie Gordon testified at trial with regard to the specific parties who were listed on the settlement check:
      Q. Ms. Gordon, could you please explain this?

        A. This is just — This was the resolution stating — of our settlement and the day that it happened and that we accepted the settlement based on the mediation hearing.
      Q. And what was your understanding as to how the settlement moneys were to be paid?
      A. We were to get $1 million, and the attorneys got $250,000 for their fees, Gordon and John.
      Q. So do you know how the settlement check was paid or how it was made out?
      A. It was given to John with all of our — with Chimneywood Homeowners Association on it and John’s name. I don't remember if Gordon's name was on the check. But it was made out to all parties. And we got our portion once the check was deposited.

      . S & W’s Petition of Intervention set forth the following: 1) S & W executed a contract of legal representation with Chimneywood to prosecute the case against the Defendants; 2) that for the work performed by S & W through Mr. Serou, S & W was to be compensated by the hour and also to receive a certain percentage of any judgment obtained by Chimneywood; 3) that in July 2007, Mr. Ser-ou resigned with S & W, and that thereafter, Mr. Serou continued his prosecution on the matter; 4) that S & W had an interest in the outcome of the suit, "opposed to the plaintiff and defendants herein” to the extent of legal services rendered and costs advanced on behalf of Chimneywood; 5) S & W claims that amount from any judgment and/or recovery obtained by Chimneywood; and 6) S & W reiterates and readopts all of the allegations of plaintiff’s petition for damages.

      . Max Cohen represented Eagan Insurance ' Agency, Inc. in the Chimneywood matter. Mr. Cohen testified that he never had any contact with Mr. Sutterfield regarding the Chimneywood case. He further testified that Mr. Ryan was his primary contact until Mr. Serou was brought into the case, after which time he estimated that "I think it was a hundred percent of my contact, until seeing John [Ryan] at the mediation, was with Gordon.”

      . Mr. Serou further argues that he instituted a summary proceeding to determine the reasonableness of attorney’s fees by filing a contradictory motion against S & W to withdraw his share of the funds in the registry of the court, which is permitted under La. C.C.P. art. 2592(1). Noting that the settlement check was made out to John Ryan, Gordon Serou and Chimneywood, Mr. Serou does not dispute that he is obligated to share those funds with S & W, but submits that he did not have to take any additional action to develop a property right to the fee.

      . These factors also mirror Rule 1.5(a) of the Rules of Professional Conduct, which provides:
      (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
      (1)the time and labor required, the novelty and difficulty of the questions involved, and , the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent.

      . See supra note 7.

      . Ms. Gordon testified that Chimneywood discharged S & W from representation subsequent to Mr. Serou’s resignation from S & W:
      Q. Did you have any relationship with anyone other than Gordon [Serou] at the Sut-terfield & Webb law firm?
      A. No.
      Q. Did you know that Mr. Serou left the Sutterfield & Webb firm?
      A. Not when he immediately left, no.
      Q. When did you find out that he left? Do you know?
      A. I think it was in '07, '08 — it was by email — that he was no longer there and we needed to — I’m thinking. To keep him hired, we had to rehire him and to terminate our relationship with Sutterfield because he no longer was there and we wanted to keep him as our attorney. So by email, I was notified that I needed to send an e-mail authorizing the termination and the rehiring of him.

      Q. Ms. Gordon, this is Exhibit 23. Is this the e-mails [sic ] you're talking about?
      A. Yes, it is.
      Q. Did you authorize the transfer of the Chimneywood file to Gordon Serou’s new law firm?
      A. Yes, I did.
      Q. Why did you authorize that transfer?
      A. Well, we wanted to keep Gordon Serou as our representation and we needed our files.
      Q. Was it your understanding that you were terminating the attorney-client relationship with Sutterfield & Webb?
      A. Yes.

      .John Ryan testified regarding Chimney-wood’s discharge of S & W as follows:
      Q. To your knowledge, did anyone else at Sutterfield & Webb contribute any work to the case?
      A. Not to my knowledge.
      Q. Do you know when Gordon Serou left Sutterfield & Webb?
      A. I don’t know the date.
      Q. Did you inform Chimneywood Homeowners Association that Gordon Serou had left Sutterfield & Webb?
      A. Yes, I did.
      Q. And what was their response?
      A. Well, they wanted to continue with Gordon's involvement with the case. And as I recall, Jim Sutterfield required a disengagement letter, which did occur in some fashion. And subsequently we retained Gordon on identical terms as Sutterfield & Webb.
      Q. So did Chimneywood Homeowners Association discharge Sutterfield & Webb?
      A. That’s correct.

      . John Ryan testified regarding Mr. Serou’s contributions to the Chimneywood matter:
      Q. Who drafted the response to the defendant's motion for summary judgment?
      A. Gordon did.
      Q. What about who deposed the defendant’s expert?
      A. Gordon did.
      Q. Who went to trial to get — to court to get the trial date?
      A. Gordon did.
      Q. Who dealt with the defendants regarding the scheduling of the mediation?
      A. I think we both did.
      Q. And who negotiated the settlement at the mediation?
      A. Well, we all did, but Gordon played a major role.

      . ’’[T]he courts have declined to apply the joint venture theory to support an equal division of the fee when the attorneys have not been jointly involved in the representation of the client.” Dukes, p. 6, 878 So.2d at 521 (citing Brown 726 So.2d at 1022; Matter of P & E Boat Rentals, Inc., 928 F.2d at 665).

      . See supra note 5.

      . Ms. Gordon testified at trial regarding her understanding of the e-mail exchange with Mr. Ryan (see supra note 4):
      Q. Ms. Gordon, I've shown you this before. This is Exhibit 26. Mr. Winstead asked you: Had you any knowledge of an agreement between Mr. Ryan and Mr. Serou? What was your understanding of that e-mail when you received it from Mr. Ryan?
      A. This was to reiterate the terms of our original agreement. And it was just letting us know that nothing had changed and that it was still the same fee agreement, but just to, I guess, to protect all the parties, the ethical reasoning to let us know how it was going to be split. And our main concern was: Was it not gonna cost us more money?
      Q. What do you mean by "nothing had changed"?
      A. Well, this is the original — -I mean our agreement was we would pay the expenses while we were going through the hearing or the trial — not hearing or trial — the whole case. And then if we won, we would pay 20 percent. And Mr. Ryan had already told us, and we had already saw or we agreed that they would split their 20 percent—
      Q. Who—
      A. —-with Mr. Serou.
      Q. Okay. Sorry to interrupt you. So—
      A. So this was just a reaffirmation of the same terms that we all understood as the board of directors at Chimneywood.

        Q. And this was after you terminated yoür relationship with Sutterfield & Webb; is that correct?
      A. Yes, yes. This happened in '08. And by that time, we were just dealing — I mean, Gordon was not working at Sutterfield and Webb.

      . See supra notes 8 and 14.

      . The Louisiana Supreme Court originally issued an opinion in the matter on December 15, 1978. The Supreme Court was "[pjrompted by a change in composition of the court’s membership” to grant a rehearing. H. David Vaughan, II, The Application of Quantum Meruit to Attorney Fee Litigation, 49 La. L.Rev. 215, 224 (1988). Justice Calogero authored the majority opinion on rehearing.

      . La. R.S. 37:218 currently provides as follows:
      A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
      B. The.term "fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

      . The Court explained that its "equitable solution” protected the client as well as the attorneys involved:
      In this way the client is prevented from reaping any possible unfair advantage resulting from the discharge of his attorney. Similarly by this resolution the client is not exposed to the risk of being penalized by being required to pay excessive and duplicitous legal fees for having chosen to exercise his right to discharge one attorney and retain the services of another.

        Saucier, 373 So.2d at 118.

      . The Court acknowledged the policy reasons behind the apportionment of the contingency fee between the attorneys:
      Resort to the Code of Professional Responsibility also will have in the future a salutary effect of assuring that unethical conduct, such as solicitation on the part of one attorney of another’s client, will not be countenanced or rewarded. Knowing that a contingent fee may have to be shared provides an incentive for successor attorneys to encourage a client who has no just cause for complaint to maintain relations with his first attorney. And it encourages the lawyer first retained to seek resolution of the client's misgivings, thereby avoiding needless controversy and engendering public respect. We believe that this resolution will discourage professional disputes and encourage out-of-court settlements since each attorney will be encouraged to emphasize the positive contribution he made to the end result and subsequent counsel will be less inclined to contend there was cause to discharge all previous counsel. Perhaps more significant even than the foregoing reasons, which relate to governance of attorneys and the practice of law, is the fact that this solution should assure fair treatment of the client who will never be compelled to pay more than one reasonable contingency fee in an amount he has agreed to pay. And it permits the client to change attorneys without acting to his financial peril, whether or not he has "cause” to make the change in attorneys.

        Saucier, 373 So.2d at 118-19.

      . It is also noteworthy that, according to Max Cohen’s testimony, Mr. Cohen had virtually no contact or interaction with John Ryan until Mr. Ryan appeared at the mediation. See supra note 8.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Debbie Jo BROOKS, Plaintiff-Respondent v. TRANSAMERICA FINANCIAL ADVISORS and Boston Safe Deposit and Trust Company, Defendants-Applicants.
    No. 45,833-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 2, 2011.

      Blanchard, Walker, O’Quin & Roberts, Shreveport, LA by W. Michael Adams, Scott R. Wolf, for Defendant-Applicant, Pershing LLC, Delaware.
    Harper Law Firm, Shreveport, LA by Jerald R. Harper, for Plaintiff Respondent, Debbie Jo Brooks.
    Irwin, Fritchie, Urquhart & Moore, New Orleans, LA by Richard E. McCormack, for Defendant-Respondent, Transameriea Financial Advisors, Inc.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

hWe granted writs in this matter to review the trial court’s denial of a motion for summary judgment by the defendant, Pershing, LLC Delaware (“Pershing”). At issue is whether Pershing is a “bank” under Chapter 4 of the Uniform Commercial Code (“U.C.C.”), La. R.S. 10:4-101 et seq., such that the failure of the plaintiff, Debbie Jo Brooks (“Brooks”), to provide notice of unauthorized signatures on certain checks precludes her claim against Pershing to recover funds wrongly withdrawn from her brokerage account by her former partner, Martha Jill Tingstrom (“Ting-strom”). Because the evidence offered by Pershing in support of summary judgment establishes that it was engaged in the business of banking and is therefore a bank as defined by La. R.S. 10:4-105(1) and because Brooks has failed to show that there is a genuine issue for trial, we find that Pershing is entitled to summary judgment as a matter of law dismissing Brooks’ claim against it.

FACTS

Brooks and Tingstrom began living together in 1994. In 1999, Brooks allowed Tingstrom to take over handling her finances. For five years Brooks did not look at any statements concerning her various accounts. But on December 19, 2004, Brooks got the mail while Tingstrom was away and opened a statement from Hibernia Bank. The statement balance was much lower than Brooks had expected, and she realized that Tingstrom had been taking money from her Hibernia checking account. Brooks discovered sometime later that Tingstrom had also taken $85,500 from her brokerage account with Trans-america Financial Advisors (“Trans-america”) by forging Brooks’ name on six checks. Brooks had a ^Resource Checking account in connection with her Trans-america brokerage account which allowed her to write checks on the funds in her brokerage account. The first unauthorized check was dated February 19, 2003, and the last was dated March 10, 2004.

Brooks filed suit against Transamerica and Boston Safe Deposit and Trust Co. (“Boston Safe”), on November 21, 2005. The petition stated that the Resource Checking account was with Transamerica and that Boston Safe was the bank with the authority to honor checks drawn on the account. Brooks alleged that the defendants paid the unauthorized checks without obtaining proper identification and approval from her, the account holder.

On March 5, 2007, Brooks amended her petition to add Pershing as a defendant. The amended petition incorporated by reference the allegations of the original petition but did not explain how Pershing was involved. The amended petition listed and included as an attachment copies of the following six checks allegedly forged by Tingstrom:

1. No. 5093, dated February 19, 2003, for $16,000.
2. No. 5096, dated April 17, 2003, for $11,000.
3. No. 5098, dated June 22, 2003, for $3,500.
4. No. 5103, dated November 13, 2003, for $26,000.
5. No. 5106, dated January 31, 2004, for $3,000.
6. No. 5107, dated March 10, 2004, for $26,000.

Asserting that Brooks had failed to notify it of her loss as required by the U.C.C. and as a result her claims were perempted or prescribed, Pershing filed a motion for summary judgment. Boston Safe did the same.

Pershing supported its motion with Brooks’ deposition, an affidavit of Dominick Buonocore, a Director of Pershing, and pleadings filed by Brooks |ain related matters. Brooks’ deposition established that she allowed Tingstrom to handle her finances for five years, during which time Brooks did not reconcile or look at any of her financial statements. Brooks began handling her own finances after discovering that Tingstrom had defrauded her, but she could not say when she looked at a statement for her Transamerica brokerage account or learned that unauthorized withdrawals had been made from that account.

According to Buonocore’s affidavit, Pershing is a clearing agent for Trans-america and “provides account custody, clearing, execution of trades and account statement compilation and dissemination for Transamerica’s clients.” The “Fully Disclosed Clearing Agreement” between Pershing and Transamerica was an exhibit to the affidavit. Buonocore explained that Resource Checking is a product provided by Pershing to Transamerica’s customers to give them the ability to write checks against their brokerage accounts. Pursuant to an “Asset Management Account Services Agreement,” which was also an exhibit to the affidavit, Pershing retained Boston Safe to manage the retail banking aspects of the Resource Checking accounts for those Transamerica clients who opted to have such accounts. Pershing created and mailed to the account holders monthly statements showing both brokerage transactions and check activity. Statements showing the checks that are the subject of this suit were mailed to Brooks at her home address for the months of February 2003, March 2003, April|42003, May 2003, June 2003, November 2003, January 2004, February 2004, and March 2004. Copies of the monthly statements and the unauthorized checks were attached to Buonocore’s affidavit. Finally, Buonocore attested that Pershing did not receive any notification about the unauthorized checks until it was served with Brooks’ petition in March 2007.

Opposing summary judgment, Brooks argued that no evidence established a depositary relationship between herself and Pershing as would exist between a bank and its customer.

Pershing responded by supplementing its motion with copies of a Customer Account Transfer Form and a Resource Checking Application both purportedly signed by Brooks.

After hearing arguments on November 11, 2008, the trial court requested additional briefing. To further clarify the relationships among the three defendants, Pershing supplemented its motion with the affidavit of Brian Swinehart, a Vice-President at Pershing, who was familiar with its procedures and the business records related to this matter.

Swinehart explained that Transamerica, Boston Safe, and Pershing each performed functions with regard to the Brooks’ brokerage account and the Resource Checking account. Swinehart identified Trans-america as an “introducing broker” and Pershing as a “clearing broker.” He explained that Pershing acts as the custodian for Transamerica’s customers’ accounts and that when Brooks opened the Resource Checking account, the Disclosure Statement disclosed Pershing as the clearing broker. As in Buonocore’s affidavit, Swinehart described Resource Checking as a free service offered |Bby Pershing to allow customers to write checks against money held in their brokerage accounts. Swinehart further explained that Pershing creates the Resource Checking account number and sends it with the customer’s name to Boston Safe, which Pershing retains to act as the bank for the check writing transactions made by customers with Resource Checking. Upon presentment of checks for payment, Boston Safe requests payment from Pershing, who ascertains whether there are sufficient funds in the customer’s brokerage account to cover the check, and if so, withdraws the amount of the check and deposits it with Boston Safe. Swinehart stated in his affidavit that Pershing “opened the Boston Safe account for Brooks, issued her a checkbook, processed checks- she wrote that were transmitted to Pershing from Boston Safe, and sent her monthly statements that reflected the checks drawn against the brokerage account.”

Attached to Swinehart’s affidavit was a “New Account Form” signed by Brooks on March 10, 2000, opening her account with Transamerica, and another copy of her Resource Checking application. By signing the Resource Checking application, Brooks agreed to the terms of the Resource Checking Agreement, which states:

Boston Safe Deposit and Trust Company (the “Bank”) is hereby appointed agent by the person(s) signing this card (the “Client(s)”) and, as agent, is authorized and directed, upon presentment of checks to the Bank, to direct Pershing, as the Client’s agent and nominee, to withdraw funds from the Client’s brokerage account in the amount stated on the checks presented to the Bank. These funds will be deposited into an account at the Bank, maintained by Pershing on behalf of the Clients, for the purposes of paying the Bank for the checks presented. Pershing is hereby appointed the Client’s agent and, where appropriate, messenger for the purpose of effecting such withdrawals.

|fiThe agreement also informs the “Client,” 1.e. Brooks, that Boston Safe and Pershing have the right to terminate, change or modify the check writing service at any time.

In response, Brooks argued that a genuine issue of fact existed as to whether Pershing had a banking relationship with her. She also asserted that the time periods set forth in La. R.S. 10:4 — 106 should be strictly construed and should not be applied on summary judgment to entities who have not been shown to have had a banking relationship with her.

After hearing arguments on May 3, 2010, the trial court granted summary judgment in favor of Boston Safe, but denied Pershing’s motion. The trial court found that the evidence was not clear enough as to Pershing’s relationship with Brooks to grant summary judgment in its favor. Pershing then requested supervisory review. This court granted Pershing’s writ to review the denial of its motion for summary judgment.

DISCUSSION

As expressed by La. C.C.P. -Art. 966(A)(2), the summary judgment procedure is “favored” and is “designed to secure the just, speedy, and. inexpensive determination of every action[.]” The grant- or denial of a motion for summary judgment is subject- to a de novo review, whereby the appellate court applies the same criteria used by the trial court to determine whether summary judgment is appropriate. Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.2d 1145. This means that a motion for summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to summary judgment as a matter of law.” La. C.C.P. Art. 966(B).

The party moving for summary judgment bears the burden of proof. La. C.C.P. Art. 966(C). Pershing, who bears the burden of proving that it is a bank as defined by the U.C.C. and that Brooks’ claim against it is precluded, must produce evidence to establish that there is no genuine issue as to material fact and that it is entitled to summary judgment as a matter of law. When there is a properly supported motion for summary judgment, the nonmoving party’s failure “to produce evidence of -a material factual dispute mandates the granting of the motion.” Somaha, v. Rau, 2007-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883. As explained by La. C.C.P. Art. 967(B)

[A]n 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.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Roccaforte v. Wing Zone, Inc., 2007-2451 (La.App. 1st Cir.8/21/08), 994 So.2d 126, writ denied, 2008-2266 (La.11/21/08), 996 So.2d 1112.

IsPershing’s motion for summary judgment is based on La. R.S. 10:4-406, which is found in Chapter 4, Uniform Commercial Code — Bank Deposits and Collections. Under La. R.S. 10:4-406(a), a bank that provides its customer with an account statement showing the payment of items must either return or make available the items or provide sufficient information in the statement, meaning a description of the item by number, amount, and date of payment, to allow the customer to reasonably identify the items paid. When a bank provides an account statement in accordance with La. R.S. 10:4-106(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.

La. R.S. 10:4-406(c).

Asserting that Brooks failed to exercise reasonable promptness in examining her account statements and did not provide prompt notice of the checks forged by Tingstrom, Pershing asserts that her claim is barred by La. R.S. 10:4-406(d) and (f), which state:

(d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by Subsection (c), the customer is precluded from asserting against the bank:
(1) the customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
(2) the customer’s unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not | exceeding thirty days, in which to examine the item or statement of account and notify the bank.
(f) Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. [Last sentence omitted.]

Under La. R.S. 10:4-406, “a customer is precluded from having funds paid out on a forged instrument restored to his account if his failure to exercise reasonable care in handling the account, either before or after the forgery, substantially contributed to the loss.” Marx v. Whitney Nat. Bank, 1997-8213 p. 4, (La.7/8/98), 713 So.2d 1142, 1145.

It is clear from Brooks’ deposition that she did not exercise reasonable care in handling .her brokerage account. She did not look at any financial statements for five years. It was not until sometime after December 19, 2004, that Brooks realized that Tingstrom had taken money from her brokerage account by forging Brooks’ name on checks drawn on the account. Brooks did not provide any notice of the forgeries to Pershing until she amended her petition to add it as a defendant in March 2007. It is clear from the record that if Pershing is a bank, then Brooks’ claim against it is precluded under La. R.S. 10:4-406(d) and (f).

A bank and its depositor have a debtor-creditor relationship that is contractual in nature. Marx, supra; Prestridge v. Bank of Jena, 2005-545 (La.App. 3d Cir.3/8/06), 924 So.2d 1266, unit denied, 2006-0836 (La.6/2/06), 929 So.2d 1261. Pershing, a clearing broker, is not a bank in the | Ultraditional understanding of a commercial bank. However, the U.C.C. broadly defines “bank” as “a person engaged in the business of banking.” La. R.S. 10:1-201(4) and 10:4-105(1).

Only one Louisiana case has addressed the U.C.C.’ definition of a bank. The first circuit in Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058 (La.App. 1st Cir.1983), found La. R.S. 10:4-205(1); which concerns depositary banks as holders, applicable to Merrill Lynch even though it was “not a bank incorporated under the provisions of Title 6 of the Louisiana Revised Statutes.” Id., at 1062. Citing Rosenblum v. Anglim, 135 F.2d 512 (9th Cir.1943), the first circuit noted that accepting deposits and issuing bills and notes has been defined as engaged in the business of banking. While banking involves more than these two functions, a business that performs only these functions as part of its regular business may be engaged in a “banking business.” Merrill Lynch provided its customer with both general securities and a checking account. The court likened these services to those provided by a depositary bank and analogized Merrill Lynch’s relationship with its customer to that of a bank and its depositing customer. The Asian International opinion suggests that the services offered or functions performed by a business entity must be examined to determine whether it is a “person engaged in the business of banking.”

Louisiana adopted the U.C.C. in an effort to harmonize our commercial law with that of the other states. Cromwell v. Commerce & Energy Bank of Lafayette, 464 So.2d 721 (La.1985). As such, l „ jurisprudence from other jurisdictions is instructive when interpreting U.C.C, provisions. This is especially so where we have limited jurisprudence addressing the issue presented here. As provided by La. R.S. 10:1-102(1), the commercial laws are to be “liberally construed and applied to promote its purposes and policies.” The purposes and policies stated in La. R.S. 10:1-102(2) include:

(a) to simplify, clarify and modernize the law governing commercial transactions;
(b) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties;
(c) to promote uniformity of the law among the various jurisdictions.

Pershing cites a number of cases which have addressed the U.C.C.’s definition of “bank” under facts similar to those in this matter. In fact, Asian International, supra, was cited as authority in Lichtenstein v. Kidder, Peabody & Co., Inc., 727 F.Supp. 975 (W.D.Pa.1989), vacated on other grounds by 777 F.Supp. 423 (W.D.Pa.1991), which held that the defendant, a brokerage firm which offered check writing services to its clients, should be considered a bank for purposes of U.C.C. § 4-406.

In Lichtenstein, supra, the plaintiff had a brokerage account with the defendant, who administered a checking account program in connection with a bank. As in the case sub judice, the checking account program allowed the plaintiff to draft checks against the assets in her brokerage account. The plaintiffs husband forged her signature on various checks and other instruments to make unauthorized withdrawals from the brokerage account. When the plaintiff sued the defendant to recover the money she 112lost, the defendant moved for a partial summary judgment on the ground that her claim was precluded due to her failure to timely notify it of the forgeries.

Addressing the threshold issue of whether the defendant was a bank, the court rejected the plaintiffs argument that state banking regulations should define what is a bank for purposes of the U.C.C. The court noted that the introductory language to the definition section of the state’s U.C.C. provisions, Title 13, indicated that words used in Title 13 would have the meanings given to them in the definition section, unless the context clearly indicates otherwise. A similar provision was included in the state banking laws. Thus, the court concluded that it would “contravene the plain language of the Pennsylvania code” to use the narrow definition of bank under the general banking laws to define what is a “bank” under the U.C.C. We observe that the same reasoning would apply in this state. The general definition statutes of both the Louisiana Banking Law, La. R.S. 6:2, and the U.C.C., La. R.S. 10:1-201, indicate that the definitions provided are for use in their respective provisions.

The Lichtenstein court noted that the U.C.C. was “established to provide a uniform body of rules'governing commercial transactions.” Considering the stated policies of the U.C.C., the court found that a brokerage firm that offers check-writing services should be governed by the | issame commercial rules applicable to checking accounts generally. Id., at 978-979. The court reasoned-that it would be inconsistent to have different rules for checking accounts administered by banks and brokerage firms in connection with banks inasmuch as the public policy of having a clear system of rights and liabilities between , the parties is the same in both cases. Id.

The same reasoning was applied in Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280, 617 N.Y.S.2d 452, 641 N.E.2d 1070 (N.Y.1994), which found that a life insurance company which administered a money market checking account was “engaged in the business of banking” and entitled to rely on Section 4-406 of the U.C.C. The opinion states that the account “resembled an ordinary checking account.” Id., at 284, 641 N.E.2d at 1072. Even though the checks were payable through a bank, the defendant had opened the account, kept the signature card, issued the checkbook, provided the monthly statements, and corresponded with Woods. The court found that the policy underlying Section 4-406, “prompt detection of alterations and forgeries by the person better able to detect them,” applied the same to both the money market account as well as a regular bank account. Id.

In Edward D. Jones & Co. v. Mishler, 161 Or.App. 544, 983 P.2d 1086 (Or.App.1999), the court rejected the plaintiffs argument that it was not a bank and held that an investment entity that provides its customers with accounts into which they can deposit funds and make withdrawals by check is a bank as defined by the U.C.C. Because the U.C.C. defines bank as well as specific types of banks, the court reasoned that the U.C.C.’s 114concfern is the involvement of banks in the processing, payment, and collecting of items such as checks. The court also examined case law from other jurisdictions, including the cases discussed above, and agreed with their reasoning. Because it issued checks that bore its name, governed some 'of the terms by which deposits were accepted, and provided the monthly account statements, the plaintiff administered the checking account and was found to be engaged in the business of banking. The court rejected arguments that the plaintiff could not be considered a bank for U.C.C. purposes because it would not be considered to be in the banking business under the state’s banking and securities laws.

Nisenzon v. Morgan Stanley DW, Inc., 546 F.Supp.2d 213 (E.D.Pa.2008), likewise held that the defendant, a brokerage firm that offered check writing services in connection with customer’s accounts, was a bank.

While Pershing asserts that the evidence offered in support of its motion and applicable jurisprudence supports its position, Brooks argues that no evidence suggests that Pershing undertook commercial banking duties with regard to her, that she was a customer of Pershing, or that Pershing sought to comply with Louisiana’s banking laws and regulations.

Brooks seeks to distinguish the cases discussed above by arguing that they involved suits between customers and the financial institutions with whom they had depositary accounts and privity. She also argues that the courts in each case applied the law of their respective states to determine whether the financial institution should be treated as a bank. We observe 115that the laws applied were those of the U.C.C. adopted in the respective states, and not dissimilar state provisions governing banking in general. Citing Congress Industries, Inc. v. Federal Life Ins. Co., 114 Ariz. 361, 560 P.2d 1268 (Ariz.App.1977), Brooks argues that there is a split in jurisprudence as to whether state bank regulations or the U.C.C. should apply to define what is a bank.

Congress, supra, involved a foreclosure action stemming from a stop payment issued by a title company, Minnesota Title Company, on checks it had issued for payment of three mortgage installments on behalf of Congress. The title company issued the stop order believing there were insufficient funds in Congress’s account. Challenging the foreclosure, Congress argued that the title company was a bank as defined by the U.C.C. and that under U.C.C. provisions, a check drawn by a bank constitutes payment of the underlying obligation. The court set forth the definitions of bank under the U.C.C. and the state’s banking regulation statute. However, it found no basis for holding that the title company was a bank. It noted that Congress, the appellant, “did not ever raise either such a legal contention or any factual basis to support it before the trial court.” Id., at 364, 560 P.2d at 1271.

We do not find that Congress, supra, evidences a split of authority among the states as to whether state banking provisions would govern the definition of a bank for U.C.C. purposes. It simply found, regardless of which definition of bank might apply, that there was nothing in the record to show whether the title company was in the banking business.

|1(iWe recognize that the matter before us differs somewhat from the facts of Lichtenstein, supra, and the other cases involving brokerage firms in that here we have the clearing broker who is asserting entitlement to the preclusive effects of the U.C.C. provision found at La. R.S.' 10:4— 406. However, the same reasoning which leads to the conclusion that a brokerage firm that offers checking services to its customers is a bank for U.C.C. purposes applies here, particularly under the facts shown by Pershing.

While Brooks may have had a brokerage account with Transamerica, the evidence offered by Pershing shows that it provided the Resource Checking account as a service to Transamerica’s customers. As part of its regular business, Pershing maintained checking accounts for 'Trans-america’s customers to allow them easy access and use of their funds. Pershing created the account. It supplied the account number and customer’s name to Boston Safe. Like the defendant in Lichtenstein, supra, Pershing administered the checking account in connection with a bank, Boston Safe. Pershing issued the checkbooks, processed the checks transmitted to it from Boston Safe for payment, and provided the monthly account statements.

Brooks argues that there is no showing of any contractual relationship or privity between herself and Pershing. Referring to the “Fully Disclosed Clearing Agreement” between Transamerica and Pershing, she argues that it shows that she was not a customer of Pershing and that nothing in it suggests that Pershing undertook banking duties for her. The clearing agreement referred to by Brooks sets forth the relationship and respective duties between Transamerica and Pershing and is not determinative of |17whether Pershing was engaged in the business of banking in its administration of the Resource Checking account.

Pershing introduced the Resource Checking application signed by Brooks. By signing the application, Brooks accepted the terms of the Resource Checking Agreement. This agreement explains that Pershing maintains the account with Boston Safe on behalf of Brooks and that Pershing is Brooks’ agent for the purpose of withdrawing funds from her brokerage account to pay the checks presented to Boston Safe. The agreement further states that both Boston Safe and Pershing “have the right to change, modify, or terminate this check writing service at any time.” Contrary to Brooks’ argument, her signed Resource Checking application establishes her contractual relationship with Pershing.

Considering the U.C.C.’s broad definition of “bank” and the directive that its provisions must be liberally construed to promote its stated policies and purposes, we find that Pershing’s evidence establishes as a matter of law that it was engaged in the business of banking through its provision of the Resource Checking ae-count service to Brooks. Brooks’ arguments do not set forth specific facts showing that there is a genuine issue of fact for trial.

Because Pershing was engaged in the business of banking, it is entitled to avail itself of La. R.S. 10:4-406. The evidence establishes that Brooks did not examine the account statements sent by Pershing for the | ^months in 2003 and 2004 when the unauthorized checks were presented and paid. She did not notify Pershing of Tingstrom’s forgeries before adding Pershing as a defendant in March 2007. Therefore, under La. R.S. 10:4 — 406(d) and (f), Brooks is precluded from asserting her unauthorized signatures against Pershing and her claim must fail.

CONCLUSION

For the reasons explained, we hereby grant Pershing’s writ and make it peremptory. The judgment of the trial court is reversed and summary judgment is granted in favor of Pershing,, dismissing Brooks’ claim against it. Costs of appeal are assessed against the respondent, Debbie Jo Brooks.

WRIT GRANTED. JUDGMENT REVERSED AND RENDERED.

      . In addition to filing suit against Tingstrom, Brooks also sued A.G. Edwards & Sons, Inc., and PNC Bank, alleging their improper payment of unauthorized checks totaling $51,675.58.'

      . However, the trial court did grant an exception of no cause of action asserted by Pershing, and allowed Brooks additional time to amend her petition to state a cause of action. Pershing's exception argued that Brooks’ assertion that it is not a bank meant that her petition failed to state a cause of action against it for improper payment of the unauthorized checks.

      . La. R.S. 10:1 — 201(a) states, "Unless the context otherwise requires, words, or phrases defined in this Section, or in the additional definitions contained in other Chapters of this Title that apply to particular Chapters or Parts thereof, have the meanings stated”.
      “As used in diis law” precedes the definitions provided in La. R.S. 6:2.

      . In addition to defining "bank,” La. R.S. 10:4-105 provides definitions for a depositary bank, payor bank, intermediary bank, collecting bank, and presenting bank. '

      . We note that the Resource Checking Application is also signed by an individual on behalf of Transamerica. However, Trans-america signed,as the "Introducing Financial Institution” to guarantee the legitimacy of Brooks’ signature as that of the account holder.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Quentin GANDY, Appellant.
    No. 45,947-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 2, 2011.
    Rehearing Denied Feb. 24, 2011.

      Alex J. Washington, Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Kodie K. Smith, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

| defendant, Quentin Gandy, was charged by bill of information with unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3. The charge against defendant stemmed from a July 3, 2009, incident in which defendant entered the home of his former girlfriend,. Shreka Mayweather, without consent. Defendant, after a two-day jury trial, was found guilty of unauthorized entry of an inhabited dwelling, and, thereafter, was adjudicated a second felony offender. The trial court sentenced defendant to 11 years at hard labor without the possibility of probation or suspension of sentence. Defendant appealed, setting forth three assignments of error. For the reasons stated herein, defendant’s conviction and sentence are affirmed.

Discussion

Sufficiency of the Evidence

In its case in chief, the state presented the testimony of three witnesses. Ms. Mayweather testified that defendant was a former boyfriend and that she had seen him off and on since their relationship ended two and a half years ago. According to Ms. Mayweather, once the relationship ended, defendant “stalked” her and called her constantly; the situation deteriorated to the point where Ms. Mayweather had to ask defendant’s parents to intervene.

Ms. Mayweather claimed that on the day of the offense she was at home watching television with her ten and two-year-olcl sons. According to Ms. Mayweather, defendant was “lurking” around her home, calling her phone, and knocking on her windows demanding her to let him enter. Ms. [2Mayweather stated that she repeatedly asked defendant to leave her property.

Later on that day, Ms. Mayweather received a phone call stating that her new refrigerator would be delivered that day. The appliance arrived while she was bathing. Ms. Mayweather had instructed her ten-year-old son to allow the delivery men, and only the delivery men, to enter the home. According to Ms. Mayweather, defendant entered the house and forced his way into her bathroom as she was taking a bath. Ms. Mayweather stated that she told defendant to leave her house, but he refused to do so. She called the police from the phone near the tub. Shortly before the police arrived, defendant left the scene.

The state also called Shreveport Police Department Corporal Eric Swartout, the officer who responded to Ms. Mayweather’s 911 call. Corporal Swartout received a , statement from Ms. Mayweather that defendant, without consent, entered her home, confronted, her in the bathroom, and refused to leave when asked. Corporal Swartout also spoke with Christopher Hamilton, one of the refrigerator delivery men. Hamilton informed Corporal Swart-out that defendant followed directly behind him into the house and went to the back of Ms. Mayweather’s home where he heard them yelling.

Hamilton testified that, although his memory from that day is not perfect, he did recall that he was delivering a refrigerator to Ms. Mayweather’s home when, at some point, defendant walked into the house and towards the rear of the house. Hamilton stated that when defendant got [3to the back of the house he could hear him and Ms. Mayweather yelling at one another. According to Hamilton, by the tone of the argument it did not appear as if defendant was supposed to be there.

The defense also called three witnesses. The first two witnesses, Gavelyn Bryant, a former friend of Ms. Mayweather, and Otis Oliver, a lifelong friend of defendant, testified regarding Ms. Mayweather’s and defendant’s relationship and defendant’s prior visits to Ms. Mayweather’s home. Specifically, Oliver claimed that on numerous occasions he would drive defendant to Ms. Mayweather’s house after her boyfriend went to work.- On cross-examination, however, both witnesses admitted that they were not present on July 3, 2009.

Lastly, defendant testified on his own behalf. In his testimony, defendant asserted that he had visited Ms. Mayweather’s home every day since his release from jail six weeks prior to the incident. He claimed that he and Ms. Mayweather were in a relationship for four years and that he would sneak into her home after her live-in boyfriend left for work. Defendant also claimed that when he arrived at Ms. May-weather’s home on July 3, the delivery men were at her house but they were still in the truck. He claimed that he knocked on the door and Ms. Mayweather’s ten1 year-old son let him in. During his testimony, defendant claimed that Ms. Mayweather’s ten-year-old son often let him in the house because Ms. Mayweather ‘“would be sleeping hard.” According to defendant, he wanted to talk to Ms. Mayweather about their two-year-old son. He claimed that |4Ms. Mayweather only called the police because the neighbors might tell her live-in boyfriend of his presence and because the furniture people were present.

After considering the aforementioned testimony, the jury found defendant guilty of unauthorized entry of an inhabited dwelling.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541. U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086.

An appellate court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation and does not extend to credibility determinations made by the trier of fact. La. Const. Art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir. 05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Unauthorized entry of an inhabited dwelling is defined by La. R.S. 14:62.3(A) as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” An unauthorized entry is an entry without consent, express or implied. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). This consent must be given by a person with authority or capacity to consent. Id.

It is undisputed that defendant and Ms. Mayweather had an intimate relationship, and that defendant had permission to enter Ms. Mayweather’s home on prior occasions. Permission to enter one day, however, does not give one carte blanche authorization to enter any time he wishes. See State v. Spain, 99-1956 (La.App. 4th Cir.03/15/00), 757 So.2d 879. It is Ms. Mayweather’s uncontradicted testimony that on the date of the incident she repeatedly denied defendant entry into her home and repeatedly asked him to leave her property. Nevertheless, defendant entered the home and forced his way into Ms. Mayweather’s bathroom while she was bathing. Regardless of whether defendant let himself in, or, as defendant testified, Ms. Mayweather’s ten-year-old son opened the door for him, it is clear that there was sufficient evidence for the jury to conclude that defendant entered Ms. Mayweather’s home on July 3, 2009, without the consent of a person with the authority and/or capacity to consent.

| rHearsay

On direct examination, defendant attempted to testify concerning statements made by Ms. Mayweather both before and during the incident charged. The state objected to all such testimony on the grounds of hearsay and relevance, and the trial court sustained the objections. Defendant now contends that he was prejudiced by the exclusion of this testimony since he was unable to show the full breadth of his relationship with Ms. May-weather.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. arts. 801(A)(1), 801(C). Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Basically, it is an out-of-court statement, that is, it is not from the witness presently testifying; and it is offered to prove a relevant issue in the case. Hearsay is excluded because of the inability of the. opponent to cross-examine. The out-of-court declarant, Ms. Mayweather, had already testified during the state’s case in-chief and was available to be recalled. What defendant was trying to attack was Ms. Mayweather’s credibility. This was not hearsay. Further, we note that a proper foundation was not laid for these allegedly impeaching remarks. See La. C.E. art. 801 D(l)(a). We further recognize that | defendant was an undisciplined witness and despite objections was able to fully relate his view of his and Ms. Mayweather’s relationship, including that he was previously charged but acquitted of another unrelated unauthorized entering of a lady’s 'home and that Ms. Mayweather testified on his behalf at that trial. What was said during the course of the crime was res gestae and not hearsay. Defendant claimed that he entered Ms. May-weather’s bath to talk about having a father/son relationship with the two-year-old child. He told this to the jury several times. Whether Ms. Mayweather said yes or no is not significant. The most telling statement Ms. Mayweather made during the course of the crime was to call the police. If error, the sustaining of the hearsay objection was certainly harmless.

Excessive Sentence

In his final assignment of error, defendant argues that the trial court imposed an unconstitutionally excessive sentence. Defendant contends that the trial court failed to give adequate consideration to the mitigating circumstance that there was no physical injury to anyone as a result of his actions, that there were no sufficient aggravating circumstances to warrant the sentence, and, lastly, that under the facts of this case the sentence is grossly out of proportion to the severity of the crime. .

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has wide discretion to sentence within the statutory limits. |RAbsent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. James, 42,976 (La.App.2d Cir.02/13/08), 975 So.2d 801.

The penalty for unauthorized entry of an inhabited dwelling is from zero to six years with or without hard labor. La. R.S. 14:62.3. Under La. R.S. 15:529.1, if a defendant has previously been convicted of a felony and is subsequently convicted of a second felony he shall be punished as follows:

If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Therefore, as a second felony offender, Defendant had a sentencing exposure of 3 to 12 years.

The record reflects that the trial court addressed and considered the factors expressed in La. C. Cr. P. art. 894.1, including, specifically, the fact that defendant had a prior felony conviction for unauthorized entry of an inhabited dwelling, for which he was still on probation at the time of the instant offense. Additionally, the trial court noted that defendant’s criminal history also included charges for domestic abuse battery, enteringhremaining after being forbidden, negligent homicide, illegal use of a weapon from a motor vehicle, illegal use of a weapon during a crime of violence, disturbing the piece, and two stalking charges. Lastly, the trial court noted that defendant’s conduct in the instant case did not cause injury to anyone. |9Thus, considering defendant’s lengthy criminal history and the trial court’s wide discretion to impose a sentence within the statutory limits, we do not find defendant’s sentence to be unconstitutionally excessive.

Conclusion

For the foregoing reasons, the sentence and conviction of defendant are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS and MOORE, JJ.

Rehearing denied.

      . Whether defendant is the biological father of Ms. Mayweather’s two-year-old son was not proven. Defendant and Mr. Oliver testified that the two-year-old is defendant’s son; however, according to defendant’s testimony, Ms. Mayweather's other boyfriend signed the birth certificate.

      . D. Statements which are not hearsay. A statement is not hearsay if:
      (1) Prior statement by witness. The de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
      (a) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement.