author: ROLAND L. BELSOME, Judge.

text:
    Thomas HENDERSON, d/b/a Henderson Home Repair Service, LLC v. Alicia AYO.
    No. 2011-CA-1605.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.

      John “Ross” Smith, The Law Office of John “Ross” Smith, New Orleans, LA, for Plaintiff/Appellee.
    Leon H. Edmond, IV, Law Office of Leon Edmond, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

|; Defendant, Alicia Ayo, appeals a lower court’s judgment in favor of Thomas Henderson, d/b/a Henderson Home Repair Service, L.L.C., (“Mr. Henderson”) in the amount of $20,000. For the following reasons, the judgment of the lower court is affirmed.

FACTS AND PROCEDURAL HISTORY

This litigation arises from a dispute concerning a contract between the parties for repairs to property damaged by Hurricane Katrina and owned by Ms. Ayo, the appellant. Ms. Ayo’s property is located at 2482 Dreux Avenue, New Orleans, Louisiana.

On September 11, 2007, Ms. Ayo entered into a written contract with Mr. Henderson to repair her residence. Under the terms of the contract, Mr. Henderson agreed to furnish labor and materials to repair the defendant’s home, and Ms. Ayo agreed to pay Mr. Henderson $53,000. The contract provided a payment schedule. Ms. Ayo was to pay an initial down payment of $20,000; a second payment of $20,000 after all sheetrock was installed; a third payment of $10,000 after ^installation of baseboards, flooring, doors, and interior painting; and a fourth payment of $3,000 after final completion.

On December 26, 2007, Ms. Ayo made the initial payment, which was three and a half months after the contract was signed. Mr. Henderson commenced work on Ms. Ayo’s property within a reasonable period of time after receiving the initial down payment. Mr. Henderson worked on Ms. Ayo’s property until March 2008, when Ms. Ayo terminated the contract. Mr. Henderson completed the second part of the project; however, he never received the second payment of $20,000 as called for under the terms of the contract.

On January 16, 2009, Mr. Henderson filed suit to recover the balance owed pursuant to the contract from Ms. Ayo. In response, Ms. Ayo filed an answer to Mr. Henderson’s petition for damages and filed a reeonventional demand against Mr. Henderson. Ms. Ayo alleged that the work performed on her home was inferior in quality, and that she incurred additional expenses in the amount of $29,903 to complete the renovation and repair of her home. Ms. Ayo further alleged that Mr. Henderson failed to honor the terms of their contract, thus, she should be awarded $29,903.

On January 26, 2011, this matter proceeded to trial. After a bench trial on the merits, the court entered a judgment in favor of Mr. Henderson. The court issued written reasons for judgment, specifically ruling that Mr. Henderson convincingly proved that he completed the second part of the contract that would have entitled him to the second payment of $20,000 as agreed under the contract. |sThe court found that Mr. Henderson submitted evidence that showed where he continued to purchase building materials and engaged the services of subcontractors until March 12, 2008. The court noted that Ms. Ayo did not provide any evidence to refute Henderson’s expenditures. In regards to Ms. Ayo’s reeonventional demand, the court denied her reeonventional demand due to her initial breach of the contract. Ms. Ayo timely filed an appeal with this Court.

ASSIGNMENT OF ERRORS

The appellant did not specifically identify her assignment of errors, however, a review of the appellant’s brief indicates that Ms. Ayo takes issue with the award of $20,000 to the appellee, Mr. Henderson, and the trial court’s dismissal of her recon-ventional demand.

STANDARD OF REVIEW

The factual findings made by the trier of fact are entitled to great weight on appellate review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “It is well settled that a court of appeal may not set aside a trial court’s or jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong,’ and where there is a conflict in the testimony, reasonable evaluations of credibility of and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable ...” Id. Therefore, the appropriate standard of review is manifest error/clearly wrong in light of the subsequent trial on the merits of appellee’s claim and appellant’s claim for reconven-tional demand. Firstar Commc’ns of La., L.L.P. v. Tele-Publishing, Inc., 2000-2219 & 2000-220,4 p. 5 (La.App. 4 Cir. 08/29/01); 798 So.2d 1032, 1035. The standard of review for a damage award for breach of contract is whether the trial court abused its discretion. Taaffe v. Factory Direct Installations, Ltd., 2008-0175, p. 14 (La.App. 4 Cir. 04/15/09); 13 So.3d 562, 569.

ANALYSIS

On appeal, Ms. Ayo, argues that the trial court erred in dismissing her reconventional demand due to her initial breach of the contract between herself and Mr. Henderson. Appellant contends that even though her initial payment to Mr. Henderson was considerably late, Mr. Henderson negotiated the check, accepted the funds, and began working on the property. Ms. Ayo argues that pursuant to La. Civ.Code art. 1780, Mr. Henderson renounced the terms of the contract and waived his right to enforce the terms of the contract. Appellant further contends that she is entitled to an award of $3,000 for her loss of rental income due to the delay in the completion of the home repairs. Finally, Ms. Ayo avers that the trial court’s award of $20,000 to Mr. Henderson was improper.

Appellee submits that the trial court properly dismissed the appellant’s recon-ventional demand at trial. The appellee contends that appellant’s reconventional demand is merely a request for delay damages, which are the expenses and costs incurred by Ms. Ayo due to the alleged delay by Mr. Henderson in completing the work pursuant to the contract. Appellee submits that he incurred substantial out-of-pocket expenses in purchasing materials, engaging subcontractors, and paying day laborers over a substantial period of time, for which he was never reimbursed. Mr. Henderson further submits that even if his |fiacceptance of the delayed payment and continuation of work is a waiver of any objection to Ms. Ayo’s breach, it is immaterial. Mr. Henderson is not seeking damages from Ms. Ayo’s breach. Mr. Henderson merely wants to be compensated for the work he completed. The appellant further submits that the trial court properly concluded that the second part of the contract was completed, thus entitling him to a second payment of $20,000.

A contract is the law between the parties, and the parties will be held to full performance in good faith of the obligations flowing from the contract. La. Civ.Code art. 1983. The contract involved in this case is a building contract as defined in La. Civ.Code art. 2756. A building contract is an agreement in which one party undertakes to construct a building for a specified price and furnishes either his work alone or his labor and materials. La. Civ.Code art. 2756 and 2757. The price is compensation for the work performed and materials used in the construction project. Id. It is implicit in every building contract that the contractor’s work be performed in a good, workmanlike manner, and free from defects in materials or work. Pete’s Plumbing & Heating, Inc. v. Geissert, 413 So.2d 554, 556 (La.App. 4 Cir. 04/07/82).

The applicable law stating the rights and responsibilities between the parties in a building contract is found in our Civil Code, Book III, Title IX, Section 3, entitled “Of Constructing Buildings According to Plots, and Other Works by Job, and of Furnishing Materials.” Maltzahn v. Roch, 427 So.2d 586, 588 (La.App. 5 | fiCir. 02/07/83). Under Louisiana law, the owner of a construction project has the statutory right to terminate a contract to build even though the contractor has commenced work on the project. La. Civ. Code art. 2765; Oscar Daste & Sons, Inc. v. Dobard, 516 So.2d 1331, 1335 (La.App. 4 Cir. 12/15/87), writ denied, 520 So.2d 743 (La.03/11/88). However, the owner of the construction project must pay the contractor for his completed work. Id.; Dugue v. Levy, 114 La. 21, 37 So. 995, 999 (12/05/1904). On the other hand, if the contractor fails to do the work he has contracted to perform, or does not execute in the manner agreed to he is liable in damages for losses that may ensue from his noncompliance with the contract. La. Civ.Code art. 2769. The owner should be placed in the position he deserved to be in when the building was completed. Id.; Rice v. Mesa General Contractor, L.L.C., 2008-115, p. 12 (La.App. 5 Cir. 05/27/08); 986 So.2d 122, 129.

After reviewing this record, we cannot say the trial court was clearly wrong in finding that Mr. Henderson was entitled to $20,000 for his completion of work. Once Mr. Henderson was advised to stop working on Ms. Ayo’s property, Mr. Henderson’s claim for completed work arose. Civil Code Article 2765 forms the basis for a contractor’s claim in quantum meruit. In an action for quantum meruit the contractor is entitled to recover as much as he reasonably deserves for his services, and the time and labor required. Oscar, 516 So.2d at 1335. During the trial, Mr. Henderson testified that under the terms of the contract he installed insulation on the exterior of the walls and ceilings; installed sheet rock on all |7exterior and interior walls and ceilings; taped, floated, textured, and painted the walls and ceilings; and installed three interior doors. Mr. Henderson also submitted numerous receipts showing his expenditures for materials and labor to complete the renovation to Ms. Ayo’s property. These receipts were admitted into evidence without objection from Ms. Ayo. Moreover, Ms. Ayo offered no evidence at trial to refute Mr. Henderson’s expenditures for materials and laborers and subcontractors hired to renovate Ms. Ayo’s home. A review of the contract evidences that Mr. Henderson was to be paid an initial payment of $20,000 and after all sheetrock was installed a second payment of $20,000. Based on the testimony of Mr. Henderson and even Ms. Ayo’s witnesses, the sheet-rock was installed in Ms. Ayo’s home. Applying the law of quantum meruit entitles Mr. Henderson to be paid for the work he undertook, which the trial court properly found to be $20,000. Since Mr. Henderson only sought to be compensated for work he already completed, appellant’s claim that Mr. Henderson cannot recover $20,000 pursuant to the terms of the contract has no merit.

In regards to appellant’s claim for $3,000 for monthly rent lost from the rental of her residence, appellant’s recon-ventional demand is merely a claim for damages for the delay in completion of the contract. We find the trial court properly dismissed Ms. Ayo’s reconventional demand because of her initial breach of the contract. Under Louisiana law, parties to a contract may stipulate the damages to be recovered where there is a nonperformance, defective performance, or delay in performance of an obligation. La. Civ. Code art. 2005. A stipulated |sdamages clause is designed to fix the measure of damages in advance and to help ease the burden of proving loss with certainty. Heirs of Gremillion v. Rapides Parish Police Jury, 493 So.2d 584, 587 (La.09/08/86); Philippi v. Viguene, 606 So.2d 577, 579 (La.App. 5 Cir. 09/29/92), writ denied, 609 So.2d 226 (La.12/11/92). No showing of pecuniary or other actual damage is required to enforce the clause. Id. If liquidated damages are set forth in the contract, then the non-breaching party will be entitled to those damages for delay. Ball Marketing, Inc. v. Sooner Refining Co., 422 So.2d 582, 585 (La.App. 3 Cir. 11/12/82), writ denied, 427 So.2d 1213 (La.01/28/83). However, where the parties have not stipulated to damages, the court will determine what damages to award for a party’s breach of the contract.

In the instant case, the contract between Ms. Ayo and Mr. Henderson did not contain a provision for stipulated liquidated damages. Thus, Ms. Ayo’s recovery is limited to her actual damages. However, since Ms. Ayo decided to pay the initial down-payment required under the contract more than three months after the contract was signed, she cannot now claim that Mr. Henderson’s delay in performance caused a loss to her. Ms. Ayo’s own delay caused a loss to her if any loss. See Bynog v. Adley, 406 So.2d 653, 656 (La.App. 2 Cir. 11/02/81) (The trial court’s award of $600 on the homeowner’s reconventional demand for delay damages was affirmed where the homeowner caused much of the delay in the contractor completing the work.). At trial, Ms. Ayo testified that she suffered a loss of rental income in the amount of $3,000 for Mr. Henderson’s delay in construction. However, Ms. Ayo did not submit any evidence regarding the market rental value of her home or the reasonable period of loss of rent attributable to her terminating Mr. Henderson and hiring a new contractor. We cannot find that ] 9the trial court abused its discretion in deciding to dismiss Ms. Ayo’s claim in reconvention with prejudice.

Accordingly, we affirm the judgment on the main demand and reconventional demand.

AFFIRMED.

      . La. Civ.Code art. 1780 provides:
      The party for whose exclusive benefit a term has been established may renounce it.

      . La. Civ.Code art. 1983 provides:
      Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.

      . La. Civ.Code art. 2756 provides:
      To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.

      . La. Civ.Code art. 2757 provides:
      A person, who undertakes to make a work, may agree, either to furnish his work and industry alone, or to furnish also the materials necessary for such a work.

      . La. Civ.Code art. 2765 provides:
      The proprietor has a right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred, and such damages as the nature of the case may require.

      . La. Civ.Code art. 2769 provides:
      If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

      . La. Civ.Code art. 2005 provides:
      Parties may stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation.
      That stipulation gives rise to a secondary obligation for the purpose of enforcing the principal one.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Toni Swain ORRILL, et al. v. LOUISIANA CITIZENS FAIR PLAN, et al.
    No. 2011-CA-1541.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.
    Gregory P. DiLeo, Julie M. Jochum, Gregory P. DiLeo, APLC, Madro Bandar-ies, M. Claire Trimble, Madro Bandaries, P.L.C., Jeffrey Berniard, Berniard Law Firm, R. Ray Orrill, Jr., Orrill Cordell & Beary, L.L.C., New Orleans, LA, for Toni Swain Orrill, et al.
    Richard T. Simmons, Jr., John E. Uns-worth, Darren A. Patin, Hailey McNamara Hall Larmann & Papale, Metairie, LA, James A. Babst, Wegmann & Babst, LLC, New Orleans, LA, for Louisiana Citizens Property Insurance Corporation.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

|, This appeal arises from a motion to decertify a class of plaintiffs regarding damages allegedly suffered as a result of Hurricanes Katrina and Rita. The trial court denied Louisiana Citizens Property Insurance Corporation’s motion to decertify. We find that the trial court did not abuse its discretion by denying the motion to decertify the class because there were no material changes in circumstance, which would warrant decertification at this stage in the proceedings, and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background of this class action lawsuit, which culminated prior to the present appeal, is discussed at length in this Court’s decisions in Orrill v. AIG, Inc., 09-0566; 09-0568 (La.App. 4 Cir. 12/09/09), 26 So.3d 994 and Orrill v. AIG, Inc., 09-0888 (La.App. 4 Cir. 4/21/10), 38 So.3d 457.

After this Court vacated the class settlement proposal in Orrill v. AIG, Inc., 09-0888 (La.App. 4 Cir. 4/21/10), 38 So.3d 457, the trial court granted an ex parte consent motion to redefine the constituency of the class. The redefinition of the Orrill class of plaintiffs included:

All present or past insureds of Louisiana Citizens Property Insurance Corporation, a/k/a Louisiana Citizens |2Fair Plan, herein after referred to as “LCPIC,” who, on or after August 29, 2005, provided notification of loss resulting from Hurricane Katrina and /or [sic] Rita to LCPIC notwithstanding whether loss adjustment was initiated within thirty (30) days after notification of loss, whose claims were not followed by written offer to settle within thirty (30) days after receipt of satisfactory proof of loss.

Louisiana Citizens Property Insurance Corporation (“LCPIC”) consented to the redefinition of the class, but reserved its right to file a motion to decertify the class. In fact, LCPIC stated at the hearing that if no settlement was reached, it would file a motion to decertify the class.

Accordingly, following another failed attempt to settle the claims of the class, LCPIC filed a motion to decertify the class, which the trial court denied. The trial court stated, in its reasons for judgment, that it considered the redefinition that LCPIC consented to and found that there was “no material change in circumstance sufficient enough to warrant a de-certification.” LCPIC’s appeal followed.

STANDARD OF REVIEW

Appellate courts review a trial court’s denial of a motion to decertify a class with the abuse of discretion standard of review. Billieson v. City of New Orleans, 09-0410; 09-0811, p. 9 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 802.

MOTION TO DECERTIFY

“The Louisiana Supreme Court has mandated that errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action.” Wallace v. Louisiana Citizens Prop. Ins. Corp., 10-0647, p. 5 (La.App. 4 Cir. 12/6/10), 53 So.3d 514, 518. When a class is certified, the trial court may, “at any time thereafter before a decision on the merits of the common |aissues, ... may alter, amend, or recall its initial ruling on certification.” La. C.C.P. art. 592(A)(3)(c). The trial court may also “enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.” La. C.C.P. art. 592(A)(3)(c). “[A] class certification may be” modified “or the class de-certified if subsequent developments during the course of the litigation so warrant.” Wallace, 10-0647, p. 5, 53 So.3d at 518. This Court reiterated that:

[i]n the absence of materially changed or clarified circumstances, or the occurrence of a condition on which the initial class ruling was expressly contingent, courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of class, in the guise of motions to reconsider the class ruling.

Doerr v. Mobil Oil Corp., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234-35; quoting 3 Alba Conte and Herbert Newberg, Newberg on Class Actions, § 7:47 (4th ed.2002). Therefore, “[i]f there is to be an error made, it should be in favor of maintaining the class action.” Johnson v. E.I. Dupont deNemours & Co., Inc., 98-229, p. 7 (La.App. 5 Cir. 10/14/98), 721 So.2d 41, 44.

LCPIC asserts that maintaining the class will require individualized adjudications, especially regarding La. R.S. 22:658, which defeats the purpose of the class action mechanism. However, “[c]lass actions usually consist of at least two stages; first, disposition of the common issues and second, the adjudication of non-common individual issues.” Richardson v. Am. Cyanamid Co., 99-675; 99-682, p. 8 (La.App. 5 Cir. 2/29/00), 757 So.2d 135, 139. Additionally, the trial court examined these arguments when considering the initial class certification. The trial court also retains the right to decertify the class at any time prior to rendering a decision, which includes after a trial, but prior to rendering a decision.

14This Court recently affirmed the certification of the same class definition in Chalona v. Louisiana Citizens Prop. Ins. Corp., 08-0257, p. 15 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 505. Relating to LCPIC’s arguments regarding La. R.S. 22:658, this Court stated that:

[a]t the appeal hearing, LCPIC argued that the definition’s inclusion of the term “satisfactory proofs of loss” was problematic since it is not a defined term, which would make it difficult for potential class members to understand whether they meet the criteria for the proposed class and even more difficult for LCPIC, who would be required to go through tens of thousands of files to determine if the proofs of loss provided by each particular plaintiff were “satisfactory.” We find no merit in this argument. The term “satisfactory proofs of loss” merely tracks the language of LSA-R.S. 22:658, the statute under which Plaintiffs have brought their claims. Individuals who allege that they provided LCPIC notice of a property damage claim resulting from Hurricanes Katrina and Rita who did not receive written offer of a settlement within thirty days are potential members of the defined class. At trial, each class member will still have to prove, individually, that they are entitled to recovery under the statute and that LCPIC is liable to them for damages. Moreover, LCPIC can easily verify their existence in the class by a review of their own business records to ascertain when the claims were made, whether “satisfactory proofs of loss” were provided, and whether written offers to settle were made within that given time frame.
Whether each individual class member has a valid claim against LCPIC will be hashed out at trial. A certification hearing does not determine liability. Davis, 844 So.2d at 253. It is not the correct venue to decide the merits of the case or defenses the defendants may allege. Those matters are to be resolved at the trial on the merits. We find that the proposed class is sufficiently defined in order to give potential class members enough information to decide whether they are included within the class and to enable potential class members to decide whether to opt out of the class.

Chalona, 08-0257, pp. 10-11, 3 So.3d at 502-03.

|bLCPIC contends that the class action is not properly certified because no common questions of fact and law that predominate over the issues of fact exist. LCPIC also suggests that this Court determine “[w]hether such common, predominate questions exist; and” ... “[w]hether the class device is, in this case, superior to the other available means for resolving the claims made on behalf of the putative class.” In support, LCPIC relies upon case law that thoroughly discusses the required rigorous analysis and the trial court’s role in the original certification of a class. However, LCPIC misstates this Court’s role when reviewing a trial court’s denial of a motion to decertify a class because our review is limited in scope. Instead of applying the combined standard of review of manifest error for factual determinations and an abuse of discretion for certification utilized when reviewing class certification, we review a denial of a motion to decertify a class by determining if the trial court abused its discretion.

LCPIC has failed to prove that material changes occurred, which would warrant class decertification. The new class definition changed to include claims arising from Hurricane Rita, but deleted the claims regarding adjustment-related penalties. The change in the procedural posture in the class following the consensual redefinition, which spurned the motion to decertify, was that the parties failed to reach a settlement agreement. This Court ruled that the trial court did not abuse its discretion in denying a motion for decertification because there was no “material change in the facts, law or circumstances since the initial class ruling that would warrant class de-certification.” Billieson, 09-0410; 09-0811, p. 9, 26 So.3d at 802. Thus, given this Court’s prior holdings and that no material change occurred in the facts and circumstances of this case to justify decer-tification, we find that the trial court did not abuse its discretion in denying LCPIC’s motion for [ fidecertification at this time and affirm.

DECREE

For the above mentioned reasons, we find that the trial court did not abuse its discretion in denying LCPIC’s motion to decertify the class and affirm.

AFFIRMED


author: CHARLES R. JONES, Chief Judge.

text:
    Keith and Jeanine MASON v. Wayne E. GARRETT, a Professional Law Corporation, Wayne E. Garrett, James Browne Larose, III and Gilsbar Specialty Insurance Services, L.L.C.
    No. 2012-CA-0046.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2012.

      Joseph M. Bruno, Melissa A. Debarbier-is, Bruno & Bruno, LLP, New Orleans, LA, for Plaintiff/Appellant.
    William E. Wright, Jr., Charlotte C. Meade, Deutsch Kerrigan & Stiles, L.L.P., New Orleans, LA, for Wayne E. Garrett and Wayne E. Garrett, APLC.
    David S. Daly, Allen & Gooch, Metairie, LA, for the Estate of J. Browne Larose, III.
    Marta-Ann Schnabel, Stephanie McLaughlin, O’Bryon & Schnabel, PLC, New Orleans, LA, for Continental Casualty Company.
    (Court composed of Chief Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD and Judge PAUL A. BONIN).
   CHARLES R. JONES, Chief Judge.

hThe Appellants, Keith and Jeanine Mason, (Masons) appeal the judgment of the district court granting the motion for summary judgment filed by the Appellees, Wayne E. Garrett, A Professional Law Corporation, Wayne E. Garrett (Mr. Garrett), James Browne Larose, III (Mr. La-rose), and Gilsbar Specialty Insurance Services, L.L.C. After reviewing the record and applicable law, we affirm the judgment of the district court dismissing the legal malpractice suit of the Appellants.

The Masons’ claim for legal malpractice against the Appellees arises out of the Appellees’ representation of the Masons during the litigation of their Hurricane Katrina homeowners’ insurance claim. Prior to August 26, 2006, the Masons retained the Appellees, Mr. Garrett and Mr. Larose, to provide legal services in connection with the Masons’ insurance claim for damage sustained by their home as a result of Hurricane Katrina. The Appellees agreed to jointly represent the Masons in litigation of their insurance claim against Auto Club Family Insurance Company (AAA). On August 26, 2006, the Appellees filed a petition styled Mason, et al. v. AAA Insurance Co., et al., in the 34th Judicial District Court for the Parish of St. Bernard pursuant to Louisiana’s Valued Policy Law. AAA removed the action to the U.S. District Court for the Eastern District of Louisiana, and the case was assigned case # 2007-445. On April 30, 2007, AAA filed a Rule 12(c) Motion to Dismiss, which was set for hearing on May 30, 2007. On August 23, 2007, the court granted AAA’s Motion to Dismiss and ordered judgment on the pleadings in favor of AAA.

Thereafter, on August 29, 2007, the Ap-pellees filed Mason, et al. v. AAA Ins. Co., et al. in the 34th Judicial District Court for the Parish of St. Bernard under Louisiana’s Valued Policy Law, essentially refiling the original complaint. On December 13, 2007, AAA removed the action to the U.S. District Court for the Eastern District of Louisiana, bearing case # 2007-9483. Thereafter, AAA filed a 12(c) Motion for Judgment on the Pleadings, which was set for hearing on April 2, 2008. The Appellees failed to oppose the Motion filed by AAA. The Masons at this time had no knowledge that the Appellees failed to oppose the Motion. On April 1, 2008, AAA deposed the Masons in conjunction with their homeowners’ claim. During the deposition, the Masons were informed by the Appellees that their case was progressing appropriately. The Masons were led to believe that the deposition would assist them in the settlement of their claim, and that their claim would soon be resolved. However, on April 14, 2008, the district court granted as unopposed the Motion for Judgment on the Pleadings. The court further ordered that the Appellees file a Motion for Reconsideration within thirty (30) days, which Uthey failed to do. The Masons, again at this time, had no knowledge that the Motion for Judgment on the Pleadings was granted as unopposed, nor did they have any knowledge that the Ap-pellees failed to file a Motion for Reconsideration.

On May 20, 2008, the district court entered a final judgment in favor of AAA. The Appellees failed to file a Notice of Appeal on behalf of the Masons within thirty (30) days of the final judgment. The Appellees failed to disclose to the Masons that a final judgment was entered in the matter. The Masons had no knowledge that a final judgment was entered in favor of AAA, nor did they have any knowledge that the Appellees failed to timely file a Notice of Appeal.

Subsequent to the final judgment entered on May 20, 2008, and in efforts to revive the dismissed claims, the Appellees filed a Motion for Relief from the Order Pursuant to Rule 60 of the Federal Rules of Civil Procedure. Thereafter, they informed the Masons about the issues and dismissals pertaining to their case. The court denied the Motion for Relief filed by the Appellees on October 29, 2008. On November 5, 2008, the Appellees again filed a Motion for Reconsideration of the Motion for Relief under Rule 60. Due to the lengthy time of the pending case, on November 10, 2008, Jeanine Mason reviewed the case file maintained by the Appellees, which she obtained after visiting their law offices; thereafter, she questioned Mr. Larose about the handling of the case. Jeanine Mason stated her specific concerns to Mr. Larose and outlined the events or lack thereof which had occurred in the case. On November 13, 2008, the Appellees re-filed a Motion for 14Reconsideration with accompanying affidavits of Mr. Garrett, Mr. Larose, and Mr. Garrett’s physician.

Some time in or before November 2008, Jeanine Mason met with Attorney Remy Fransen (Mr. Fransen). On November 19, 2008, Mr. Fransen, on behalf of the Masons, wrote to the Appellees suggesting action could be taken against them for legal malpractice in connection with their representation of the Masons. Mr. Fran-sen’s letter stated in pertinent part:

I have been retained by Keith and Jeanine Mason to inquire into the circumstances surrounding the case pending which is referenced above.
My review of the file indicates that the matter was dismissed by Judge Ivan L.R. Lemelle of the Eastern District on April 10, 2008 because there was “No memorandum in opposition to the motion ...” and “Accordingly this motion is deemed to be unopposed ...” After the order was entered, a final judgment was rendered on May 20, 2008.
Later, a motion was filed for relief under Federal Rule of Civil Procedure, Rule 60. This motion was rejected by Judge Lemelle by order dated October 29, 2008.
The record reflects that, at various times, the Masons were represented by you as counsel of record. Unless relief can be obtained from the order denying the Rule 60 proceedings dated October 29, 2008, it would appear that the Masons’ rights have been prejudiced by your joint or individual failure to timely protect their interests.
If after your best efforts to exhaust the available appeals, you are unsuccessful, I have been authorized by the Masons to take such action as may be necessary to pursue all remedies which the Masons may have against you, including a suit in malpractice.
I would suggest that you place your malpractice underwriters on notice at this time.

|fiOn November 20, 2008, Mr. Fransen wrote a second letter, this time to the Masons, enclosing the above mentioned letter which he had submitted to the Ap-pellees on behalf of the Masons. This subsequent letter stated in part as follows:

I attach a copy of the letter that I will send to Attorneys Garrett and Larose.
I sincerely hope that they are successful in their efforts to appeal this matter. Appeal is always a long shot, but this may have some merit.
I have now put them on notice that you will pursue your rights against them if they are unsuccessful.
At the moment, I will take no further action in this case, it being their obligation to straighten out the mess.

The Masons received both letters; however, they did not respond or take any action. Some time in or before December 2008, Jeanine Mason agreed to allow Mr. Fransen to send cases to the Appellees to assist them with the Masons’ pending Motion for Reconsideration. On August 10, 2009, the Motion for Reconsideration was denied. On September 9, 2009, the Appel-lees filed a Notice of Appeal on behalf of the Masons with the U.S. Fifth Circuit Court of Appeal; however, the district court’s ruling was affirmed on March 30, 2010,

On April 24, 2010, the Masons received a letter from the Appellees informing them that their appeal had been denied, and also provided the Masons with the information of their malpractice carrier in the event the Masons chose to pursue a claim against them. On August 18, 2010, the Masons filed suit against the Appellees, captioned Keith and Jeanine Mason v. Wayne E. Garrett, A Professional Law Corporation, Wayne E. Garrett, James Browne Larose, III and Gilsbar Specialty Insurance Services, L.L.G., in the Civil District Court for the | ^Parish of Orleans, State of Louisiana, bearing case #2010-8267, and alleging that the Appellees were negligent in failing to properly prosecute the Masons’ homeowners insurance claim against AAA. Gilsbar Specialty Insurance Services, L.L.C., was subsequently dismissed as a party.

Thereafter, the Appellees filed a Motion for Summary Judgment arguing the undisputed facts show that the Masons had sufficient knowledge of the alleged malpractice more than one year before filing suit. The Appellees’ motion for summary judgment sought to have the Masons’ legal malpractice suit against them dismissed, asserting that the Masons’ claim had prescribed. Specifically, the Appellees’ asserted that the Masons could not sustain a legal malpractice action against the Appel-lees, as the Masons were aware of the alleged legal malpractice in or around November 2008, rather than April 2010 as they assert.

In support of their motion for summary judgment, the Appellees alleged that on or before November 10, 2008, Appellant, Jeanine Mason, visited their law offices and obtained a copy of the file pertaining to and containing all relevant documents of their insurance suit. She reviewed the file and wrote the Appellees a letter outlining all the issues she observed in the handling of the suit by the Appellees. Additionally, she sought representation of another attorney, Mr. Fransen, to inquire into the representation by the Appellees and pending status of the case between the Masons and the insurance company.

|7The Appellees argued that the Masons knew or should have known that the alleged malpractice had occurred based on the correspondence received from Mr. Fransen, and also from reviewing the files pertaining to their case. They argued that as a representative of the Masons, Mr. Fransen’s knowledge of the malpractice is imputed to the Masons under Louisiana law. Regional Transit Authority v. Levey, 595 So.2d 1255, 1258 (La.App. 4 Cir. 3/17/1992). The Appellees further argued that since the Masons knew or should have known about the alleged malpractice back in November 2008, the Masons were barred from bringing suit as it had prescribed under La. R.S. 9:5605. The district court held a contradictory hearing with oral argument on October 28, 2011, and thereafter rendered judgment granting the Motion for Summary Judgment and dismissing the Masons’ claims. The Masons’ timely appeal followed.

The Masons raise two (2) assignments of error:

1) The district court erred in granting the Defendants’/Appellees’ motion for summary judgment as a matter of fact, as it improperly found that the Plaintiffs/Appellants knew or should have known that malpractice had been committed on November 19, 2008.
2) The district court erred in granting the Defendants’/Appellees’ motion for summary judgment as a matter of law, as it failed to conduct an eviden-tiary hearing on the issue of fraud.

Though the Masons assert two assignments of error, the record reveals the issue at hand is the granting of the motion for summary judgment by the district court. Appellate courts review the grant or denial for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 1999-2181, p. 7 (La.2/29/2000), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action or defense in favor of one or more parties. La. C.C.P. art. 966(E); see also La. C.C.P. art. 1925(B)(1).

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. Nevertheless, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/08/2000), 775 So.2d 1049, 1050. A court cannot make credibility determinations on a motion for summary judgment, and must assume that all of the affiants are credible. See Independent Fire Insurance Co., p. 16, 755 So.2d at 236.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/1994), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or 19determines the outcome of the legal dispute. Hardy v. Bowie, 1998-2821, p. 6 (La.09/08/1999), 744 So.2d 606, 610. Thus a material fact is one that would matter on the trial on the merits. Smith, p. 27, 639 So.2d at 751.

On appeal, the Masons aver that they did not receive any indication from the Appellees that malpractice had occurred until the Appellees provided them -with correspondence from the appeal on April 24, 2010. The Masons urged that they felt assured by the Appellees continued work on the case, and that the reassurance on the status of their case was constantly given to them by the Appellees. At no point did the Appellees inform them that the case had been dismissed due to a mistake on the part of the Appellees in their representative capacity. Mrs. Mason stated that during numerous inquiries about the case, the Appellees assured her that the matter was proceeding normally and that under no circumstances did she become aware that their insurance claim against AAA was not going to be successful. The Masons stated that their frustrations at the length of time the matter was taking prompted them to seek opinions from others, such as Attorney Remy Fran-sen. They urged that they did not hire or retain Mr. Fransen, but rather sought his insight on the pending litigation. They further urged that though they met with Mr. Fransen, this meeting and insight from Mr. Fransen did not give them any indication that malpractice had been committed by the Appellees. Finally, they aver that at no time before April 2010, could they have known that malpractice had occurred and that they filed suit within a year after their acquired knowledge. Thus, the suit against the Appellees was timely.

In the matter sub judice, the district court determined that the suit against the Appellees had prescribed under La. R.S. 9:5605, which states in pertinent part:

|inA- No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremp-tive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

The district court further relied on Atlas Iron & Metal Co. v. Ashy, 2005-458, p. 5 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205, 1210 writ not considered, 2006-0296 (La.4/28/06), 927 So.2d 276, where the Third Circuit opined:

The peremption period begins to run when a client knows or should have known that a lawyer’s actions or inaction may cause the client to incur damages, thereby creating a legal cause of action. Therefore, courts look to see when a client “knew of the existence of facts which would have enabled him to state a cause of action for legal malpractice.” Dauterive v. Landry and Watkins, 2001-1112, p. 18 (La.App. 3 Cir. 3/13/2002), 811 So.2d 1242, 1255. It is also possible for a client to have constructive knowledge of facts sufficient to “place a reasonable man on notice that malpractice may have been committed,” such that the one year peremption period will begin to toll. Id. at 1254 (quoting Taussig v. Leithead, 1996-960, p. 6 (La.App. 3 Cir. 2/19/1997), 689 So.2d 680, 684). The Louisiana Supreme Court is in full agreement:
|, prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start [the] running of prescription.

A review of the facts and law reveals that the district court did not err in granting the Appellees’ motion for summary judgment. Here, the Masons were aware of the alleged malpractice which had occurred back in 2008. As previously stated, in or about 2008, the Masons not only reviewed the files and saw all the deficient work being done by the Appellees, but also sought a separate attorney who informed them that they have an action for malpractice. The Masons argued that they did not retain Mr. Fransen to represent them; however, the letter by Mr. Fransen clearly states that he was retained by the Masons to inquire into the matter. Further, the Masons’ argument that their meeting with Mr. Fransen did not reveal any inclination that the Appellees had committed legal malpractice is without merit. The subsequent letter sent to the Masons from Mr. Fransen mentioned a possible malpractice action that the Masons had against the Appellees, stating in part, “I have now put them on notice that you will pursue your rights against them if they are unsuccessful.” Mrs. Mason acknowledged that she was aware of the |12lengthy time that the matter was pending and had suspicions, thus seeking opinions from others, such as Mr. Fransen. Mrs. Mason also stated that she expressed her opinions and views about the lack of progress and work being done by the Appellees in her outlined letter to the Appellees in 2008.

In evaluating whether the Masons knew or should have known about the alleged malpractice by the Appellees, we look to the court in Atlas who opined that the standard for determining when a client knows or should have known about the act, omission, or negligence of his or her attorney is that of an objective, reasonable person. Id. at p. 5, 918 So.2d 1205, 1210. As the Third Circuit stated in Atlas:

The standard for determining when a client knows or should know about the act, omission, or negligence of his or her attorney is that of an objective, reasonable person. “[A] plaintiff ... may not escape the commencement of prescription by attempting to establish that his ability to comprehend and evaluate the facts is something less than that possessed by a reasonable man.”
This standard is designed to establish a rule that any plaintiff who had knowledge of facts that would place a reasonable man on notice that malpractice may have been committed shall be held to have been subject to the commencement of prescription by virtue of such knowledge even though he takes the position that he did not know because these facts were not sufficient to trigger such knowledge in his mind.
Encountering, by early November 1991, the indicated elements of a malpractice action, the Smiths should have taken practical steps to investigate further and prosecute any such claims against defendants, prior to the running of the prescriptive period. This is 1 istrue despite Masons’ contention that, as non-lawyers, they could not know their attorney had committed a negligent or illegal act. Under such circumstances, a layman may not escape commencement of prescription by asserting that his ability to comprehend and evaluate the facts is limited.
Accordingly, the reasonable person standard requires no inquiries into the sophistication of an individual client as it is a subjective [sic] standard, as stated succinctly in Taussig. “The test in this case ... is what a reasonable person in [the plaintiffs] position at the time knew or should have known and what she had discovered or should have discovered in the words of the statute — the reasonable person we refer to is the so-called ‘objective reasonable person.’ ” (Citations Omitted).

Atlas Iron & Metal Co., 2005-458, pp. 7-8, 918 So.2d at 1211-12.

In the matter. sub judice, the Masons encountered sufficient proof to conclude that malpractice had been committed by the Appellees. Several times in 2008, the Masons were placed on notice and were presented with enough information to alert them that malpractice had been committed. In addition to viewing the files containing all the pertinent information and timelines of the work product of the attorneys (Appellees), the Masons also received information and were informed by an attorney they sought, Mr. Fransen, of the possible malpractice action the Masons have against the Appellees. The Masons’ claim that they did not retain Mr. Fransen, and further Mr. Fransen did not provide them with any knowledge that malpractice had occurred. As stated earlier, the letter sent to the Appellees from Mr. Fransen stated that the Masons had retained him as counsel to inquire into the pending matter. The subsequent letter sent to the Masons from Mr. Fransen stated that the Masons had a malpractice claim against the Appellees. Mr. Fransen was aware that malpractice had occurred and his knowledge is imputed to [14the Masons. Thus, the Masons had knowledge of the malpractice, and it is irrelevant that the Appellees failed until April 2010, to inform the Masons that they could contact their malpractice carrier. The Masons, as reasonable persons, knew or should have known that malpractice had occurred.

The Masons cannot succeed on their legal malpractice claim because they failed to meet the burden of proof that they did not know or should have known malpractice occurred in or around 2008. The Masons attempted to file suit years after their claim had prescribed alleging lack of knowledge. They were aware they had a cause of action when Mr. Fransen informed them that they had a claim against the Appellees in 2008, and they had knowledge of the malpractice, and though they suffered harm by losing their initial insurance claim against AAA, the failure of the Appellees to inform them of their mistakes or lack of productivity did not delay the Masons’ acquisition of knowledge of the possible malpractice.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED


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

text:
    Angela M. TERRELL v. Roger D. FONTENOT, State Farm Mutual Automobile Insurance Company and Ace American Insurance Company.
    No. 2011-CA-1472.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2012.
    Rehearing Denied Aug. 22, 2012.

      Thomas Corrington, The Corrington Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Kathleen K. Charvet, Jack C. Benjamin, Jr., Heather Angelico, Lewis Brisbois Bis-gaard & Smith LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR, Judge.

11 Angela M. Terrell (“Terrell”) appeals a judgment granting the motion for summary judgment of ACE American Insurance Company (“ACE”), dismissing her claims for uninsured/underinsured motorist (“UM”) coverage under a policy of insurance issued to the owner/lessee of the vehicle which she was driving. For the reasons that follow, we affirm.

On 5 March 2010, a motor vehicle accident occurred on U.S. Highway 190 in Pointe Coupee Parish between a van leased by Terrell’s employer, Professional Transportation, Inc. (“PTI”) from United Leasing, Inc. (“ULI”), and a vehicle driven by Roger Fontenot (“Fontenot”). The PTI van, driven by Terrell, was westbound and Fontenot’s vehicle was headed eastbound; the accident happened when Fon-tenot’s vehicle crossed the center line of the highway and collided head-on with the PTI van. Terrell was at the time transporting three Union Pacific Railroad workers to their jobsite.

Terrell filed suit against Fontenot and his insurer, State Farm Mutual Automobile Insurance Company, in the Civil District Court for her injuries | sustained in the accident. Additionally, she named ACE, as the insurer of PTI’s van, as a party defendant. She supplemented her petition asserting that ACE provided UM coverage for the van she was driving and thusly ACE was responsible for any damages not covered under Fontenot’s insurance.

ACE filed a peremptory exception of no cause of action and an alternative motion for summary judgment and alternatively for a change of venue alleging that UM coverage from ACE had been validly rejected and therefore no UM coverage for PTI or Terrell was provided. In support of its assertion, ACE attached a copy of the Uninsured/Underinsured Motorist Bodily Injury Coverage form, showing that UM coverage had been rejected by Charles Guard (“Guard”) on behalf of PTI. Ace further attached Guard’s affidavit that attested that he was authorized to execute the form rejecting UM coverage from ACE on behalf of PTI. Terrell filed a cross motion for summary judgment alleging that UM coverage had not been validly rejected by Guard on behalf of PTI, because Guard was not properly designated as PTI’s legal representative to do so. Accordingly, Terrell asserts UM coverage should be read into the Ace policy.

Before holding a hearing on the motions, the parties agreed to continue the hearing until Guard’s deposition could be taken. In deposition, Guard stated that he was employed by ULI and had been so for 20 years. He explained that PTI provided ground transportation for railroad workers; that PTI leases its vehicles from UTI, the financing company; and that PTI and ULI are separate legal entities but commonly owned by United Companies, which is privately owned by the Romain family. Guard stated that he has authority to procure insurance and sign [.-¡insurance forms on behalf of PTI and has done so for 12 years. Guard also stated that Ronald Ro-main (President of PTI and ULI) gave him verbal authority to procure insurance and sign insurance forms on behalf of PTI. He further stated that he has never had written authority to act for PTI.

At the hearing the trial court granted ACE’s motion for summary judgment, dismissing Terrell’s claims against it with prejudice, relying on Duncan v. U.S.A.A. Ins. Co., 06-0363 (La.11/29/06), 950 So.2d 544; Harper v. Direct Gen. Ins. Co., 08-2874 (La.2/13/09), 2 So.3d 418, and Banquer v. Guidroz, 09-466 (La.5/15/09), 8 So.3d 559. This timely appeal followed.

We review this matter granting a motion for summary judgment de novo. La. C.C.P. art. 966; Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Duncan, p. 3, 950 So.2d at 546; see also Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764.

Although Terrell assigns seven errors committed by the trial court, they all address the same issue: Did the trial court err in granting ACE’s motion where evidence supports that UM coverage was not validly rejected by the insured?

Terrell argues that PTI properly filled the UM coverage form, but the signatory to the form was not legally authorized to act as PTI’s legal representative. That is, Terrell asserts that Guard’s signature on behalf of PTI had no legal effect and UM coverage was not validly rejected. In support, Terrell cites La. C.C. art. 2986 which provides that the authority to act on behalf of another can only be conferred by law, by contract (such as mandate or partnership), or the unilateral juridical act of proc-uration. She asserts that since the UM coverage rejection must be in writing, the legal representative must have authority to do so in writing to comply with La. C.C. art. 2993. Further, she asserts that Holloway v. Shelter Mut. Ins. Co., 03-896 (La.App. 3 Cir. 12/10/03), 861 So.2d 763, is dispositive of the issue.

Contrariwise, ACE argues that the UM coverage rejection complied completely with Duncan, supra, and that Holloway is distinguishable

Louisiana has a strong public policy favoring UM coverage. Duncan, p. 4, 950 So.2d at 547. UM coverage is determined by the contract between the insurer and insured and applicable law. UM coverage is an implied amendment to an automobile liability policy, even when not specifically addressed therein, and it will be read into a policy unless validly rejected. Kurz v. Milano, 08-1090, p. 4 (La.App. 4 Cir. 2/18/09), 6 So.3d 916, 919 (quoting Duncan, p. 4, 950 So.2d at 548). The rejection of UM coverage must be clear and unambiguous. Daigle v. Authement, 96-1662, p. 2 (La.4/8/97), 691 So.2d 1213, 1214. The statute providing for coverage in the absence of a valid rejection should be liberally construed whereas a statutory exception to UM coverage must be strictly construed. Kurz, p. 5, 6 So.3d at 919. An “insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits.” Duncan, p. 5, 950 So.2d at 547. A rejection of UM coverage must be made upon a form prescribed by the Louisiana commissioner of insurance. La. R.S. 22:1295(l)(a)(ii). A properly completed UM coverage form where the signatory rejected coverage creates a rebuttable presumption that the insured knowingly rejected UM coverage. Id.

In pertinent part, La. R.S. 22:1295(l)(a)(ii) states:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and |ssigned by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. [Emphasis supplied.]

In Duncan, pp. 11-12, 950 So.2d at 551, the Court established the criteria for an insured to properly complete a form rejecting UM coverage: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

The form rejecting UM coverage shows that Guard’s initials appear next to the paragraph that states, “I do not want UMBU Coverage.” The name of the | fiinsured, PTI, is printed on the form as is the policy number and the effective date, 11 March 2009. The form is signed by Guard in the blank for the signature of the named insured or legal representative.

The parties do not dispute that the correct form for rejection of UM coverage was properly and completely filled out. The gravamen is whether Guard had been properly delegated the authority to sign and reject UM coverage on the company’s behalf.

We understand the words “legal representative” in La. R.S. 22:1295(l)(a)(ii) to mean an individual authorized on behalf of an entity. An entity, such as a corporation, limited liability company, partnership, trust, or estate, operates through the acts and actions of individuals. An entity itself cannot act on its own behalf, but instead gives authority to an individual to act on its behalf. To embrace the theory that UM coverage was not properly rejected as proffered by Terrell, the president of a corporation, the manager or members of a limited liability company, or a partner of a partnership would have to specifically delegate in writing to another individual the authority to sign a UM rejection on behalf of the entity. Such would be like straining at a gnat after swallowing the camel, letting alone unreasonably burdensome. La. C.C. art. 10; see Thibodeaux v. Burton, 538 So.2d 1001, 1004 n. 1 (La.1989) (corporate authority may be explicitly or implicitly proven); Ruiz v. Lewis, 579 So.2d 1203, 1206 (La.App. 4th Cir.1991).

Further, we agree with ACE that the Third Circuit’s decision in Holloway v. Shelter Mut. Ins. Co., 03-896 (La.App. 3 Cir. 12/10/03), 861 So.2d 763, is distinguishable. Holloway addressed UM coverage in a dispute between an insurer and family representatives of the insured. The gravamen therein was whether a mother had the authority to sign the rejection of UM coverage. In the case at bar, no dispute exists between the insurer and the insured; PTI, ULI, and ACE agree that UM coverage had been rejected. Moreover, Guard had been managing the insureds’ policies of insurance for some 12 years and had previously and always rejected on behalf of the insured UM coverage based upon instructions from the corporation’s “owner,” its president or authorized individual.

It is undisputed that Guard was given verbal authorization (by the president of both PTI and ULI, Ronald Romain) of Guard’s authority to reject UM coverage. No Louisiana law exists requiring the governing body of an entity or a president or chief executive officer of an entity to formally and in writing specify who has authority to decline UM coverage. Guard filled out the proper form designated by the Louisiana Commissioner of Insurance and followed all of the necessary steps required by Duncan, supra. His rejection was clear and unambiguous, leading to the conclusion that the UM coverage was knowingly rejected.

1 s Our conclusion herein is consistent with the Louisiana Supreme Court’s per curiam decisions in Harper v. Direct Gen. Ins. Co., 08-2874 (La.2/13/09), 2 So.3d 418, and Banquer v. Guidroz, 09-466 (La.5/15/09), 8 So.3d 559.

For the foregoing reasons, we affirm the trial court’s judgment dismissing Terrell’s claim’s against ACE.

AFFIRMED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

|¶1 respectfully dissent from the majority’s opinion.

Here, the sole issue is whether Mr. Guard was a properly authorized legal representative for the purpose of rejecting UM coverage on behalf of PTI. Clearly he was not.

As the majority acknowledges, the rejection of UM coverage shall be made only on a form prescribed by the commissioner of insurance. In Duncan v. U.S.A.A., Ins. Co., 06-363, pp. 11-12 (La.11/29/06); 950 So.2d 544, 551, the Louisiana Supreme Court determined the prescribed form requires the completion of six tasks to effectuate a valid UM coverage form. A properly completed UM-coverage form where the signatory rejected coverage creates a rebuttable presumption that the insured knowingly rejected UM coverage. La. Rev.Stat. § |⅞22:1295. Failure to complete the six tasks on the form prescribed by the commissioner of insurance invalidates the UM waiver. Gray v. American Nat’l Prop. & Cas. Co., 07-1670, p. 14 (La.2/26/08); 977 So.2d 839, 849.

The facts of this case are not in dispute. The parties agree that Mr. Guard was not employed by PTI and never had written authority to act as PTI’s legal representative. Thus, the question to be resolved is whether Mr. Guard could act as PTI’s legal representative without written authority.

The majority interprets the words “legal representative” in La. R.S. 22:1295(l)(a)(ii) to mean an “individual” authorized on behalf of an entity. The majority finds that PTI verbally gave Mr. Guard legal authority to reject UM coverage and there is no Louisiana law which requires an entity to formally designate, in writing, a legal representative that has the authority to decline UM coverage. To support its conclusion that corporate formalities need not be met, the majority misapplies Riggins v. Dixie Shoring Co., Inc., 511 So.2d 1060 (La.App. 4 Cir.1991), rev’d, 590 So.2d 1164 (La.1991), as Riggins involved the discussion of corporate formalities as it related to piercing the corporate veil. That is not the issue here.

We must resolve this issue by reference to the UM coverage statute and the requirements for its waiver together with the Louisiana Civil Code articles addressing Representation and Mandate, Title XV.

La. Civ.Code art. 2985 provides that “[a] person may represent another person in legal relations as provided by law or by juridical act. This is called representation.” La. Civ.Code art. 2986 provides that “[t]he authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by unilateral act of procuration.” In this case, Mr. Guard’s authority to act on behalf of PTI can only be construed as representation by mandate. La. Civ.Code art. 2989 provides “[a] mandate is a contract by which a [ ^person, the principal, confers authority on another person, the mandatary, to transact one or more affairs of the principal.” By affidavit Mr. Guard stated that he was given the authority to sign all insurance forms for PTI, particularly the UM coverage form; and, by deposition testimony, Mr. Guard stated this authority was given to him orally by Mr. Romain.

La. Civ.Code art. 2993 states that a contract of mandate does not have to be in a specific form; however, when the law requires a certain form for an act, the mandate authorizing the act must be in that form. The rejection of UM coverage must be in writing, therefore, according to art. 2993, a contract of mandate authorizing a rejection of UM coverage must be in writing as well. State v. Holloway, 03-896, p. 8 (La.App. 3 Cir. 12/10/03), 861 So.2d 763, 768, writ denied, 869 So.2d 854 (La.3/19/04). Since there was no writing purporting to give Mr. Guard the authority to act as PTI’s legal representative, any rejection of UM coverage by Mr. Guard on behalf of PTI is invalid. Thus, the insurer failed to properly complete Duncan task # 4, signing the name of the insured or legal representative.

The majority incorrectly finds that its opinion is consistent with Harper v. Direct Gen. Ins. Co., 08-2874 (La.2/13/09); 2 So.3d 418, and Banquer v. Guidroz, 09-466 (La.5/15/09); 8 So.3d 559. In Harper and Banquer, the Court was concerned with the completion of task # 3, printing the name of the named insured or legal representative, and task # 4, signing the name of the named insured or legal representative. Harper, 08-2874 at p. 3, 2 So.3d at 420; Banquer, 09-466 at p. 4, 8 So.3d at 561. In both cases, the purported UM insurer, established through an affidavit that the signature on the UM waiver form at issue was signed by legal representatives that were employees of the insured. Harper, 08-2874 at p. 1, 2 So.3d at 419; Banquer, 09-466 at p. 3, 8 So.3d at 561. In both cases, the Louisiana Supreme Court held “as long as the name of the named insured is printed and the Llegal representative signs the form, [the tasks described in Duncan as task # 3 and task # 4] are satisfied.” Banquer, 09-466 at p. 4, 8 So.3d at 562 (quoting Harper, 08-2874 at p. 3, 2 So.3d at 420). I find that there is a glaring distinction between the issue presented in Banquer and Harper and the issue in this matter. In Harper, the Court was concerned with the validity of the UM coverage form where the legal representative did not identify his representative capacity on the form. Harper, 08-2874 at p. 1, 2 So.3d at 419. In Banquer, the Court was concerned with the validity of the UM coverage form where the legal representative did not print his name as the insured but put his signature- in the blank for the insured’s signature. Banquer, 09-466 at p. 3, 8 So.3d at 561. Here, the issue involves the validity of the UM coverage form where the form’s signatory had no valid legal authority to sign.

Given the clear statutory language and considering the strong public policy favoring UM coverage, I conclude that the insurer, ACE, has failed to demonstrate that the rejection of ÜM coverage was valid as a matter of law. Thus, I find the trial court erred in granting summary judgment in the insurer’s favor.

I would reverse and remand for further proceedings.

      . Further, we note that La. R.S. 22:1296 B(4), addressing leased vehicles, that is not specifically relevant in the case at bar due to the absence of evidence about the complete nature of ULI's vehicle rental business, states:
      In the event that the rental company provides minimum financial responsibility limits pursuant to this Section, the rental company shall be exempt from R.S. 22:1295 and shall not be required to extend uninsured or underinsured motorist coverage or to offer renters or additional authorized drivers an opportunity to accept, reject, or select lower limits of uninsured or underinsured motorist coverage. [Emphasis supplied.]

      . By way of illustration, the president of Exxon Mobil Corporation would have to designate in writing the precise individual who is authorized to reject Louisiana UM coverage and when that individual left Exxon's employment or transferred to another position within Exxon's corporate structure, a new written authorization would have to signed by the corporate president; concomitantly, such would raise the issue whether the board of directors, by-laws, and /or articles of incorporation of Exxon allowed the president to even waive Louisiana UM coverage.

        .World Trade Center Taxing District v. All Taxpayers, Property Owners, and Citizens of World Trade Center Taxing District and Nonresidents Owning Property or Subject to Taxation Therein, 05-0048, p. 17 (La.App. 4 Cir. 2/1/05), 894 So.2d 1185, 1196, aff'd, 05-0374 (La.6/29/05), 908 So.2d 623

      . In light of the Supreme Court’s decision in Riggins v. Dixie Shoring Co., Inc., 577 So.2d 1060 (La.App. 4th Cir.1991), rev'd, 590 So.2d 1164 (La.1991), corporate formalities need not be followed.

      . La.Rev.Stat. § 22:1295(l)(a)(ii) provides in pertinent part:
      Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage,

        selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage.shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.

      . The six tasks are: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident: (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. (Emphasis added.) Duncan, supra.


author: EDWIN A. LOMBARD, Judge.

text:
    Michelle Zornes MALASOVICH Wife of/and Val Charles Malasovich, Jr. v. AUNTIE BELHAM’S REALTY & NIGHTLY RENTALS, INC., ABC Insurance Company, John Doe, and DEF Insurance Company.
    No. 2012-CA-0012.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 2012.
    Rehearing Denied Sept. 6, 2012.

      Andrew L. Kramer, Binford E. Parker, III, New Orleans, LA, for Plaintiff/Appellant.
    John W. Norwood, III, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

bThe plaintiffs, Michelle Zornes Malaso-vich and her husband, Val Charles Malaso-vich, Jr., appeal the judgment of the trial court granting the defendant’s Exception of Lack of Personal Jurisdiction with prejudice. We amend the trial court judgment to dismiss the plaintiffs’ lawsuit without prejudice and, as amended, affirm.

Relevant Facts and Procedural History

On February 6, 2009, Mrs. Malasovich, a resident of Louisiana, used the online reservation system operated by Auntie Bel-ham’s Realty & Nightly Rental, Inc., of Pigeon Forge, Tennessee, to reserve a cabin in Gatlinburg, Tennessee. The Tennessee realty company confirmed the reservation by email and, shortly thereafter, by confirmation letter sent through the United States Postal Service to the plaintiffs’ home in Arabi, Louisiana. Upon arrival in Tennessee on October 16, 2009, the plaintiffs’ obtained the keys from the realty company but upon arrival at the rental cabin, both of them purportedly slipped and fell on the cabin steps.

On October 15, 2010, the plaintiffs filed a petition for damages in St. Bernard Parish, alleging that they were injured as a result of slip and fall accidents Ron a wet staircase outside a rental cabin in Gatlin-burg, Tennessee. The plaintiffs named as defendants the Tennessee realty company (Auntie Belham’s) from which they rented the cabin, and its unknown general liability and property insurers.

On January 20, 2011, the Tennessee realty company filed a peremptory exception of no jurisdiction over the person of the defendant. After a hearing on February 25, 2011, the trial court orally granted the exception but allowed the plaintiffs thirty days, until March 28, 2011, to amend their petition for damages. On March 28, 2011, the plaintiffs filed their First Amended and Supplemental Petition. Shortly thereafter, on May 9, 2011, the Tennessee realty company “re-urged” its exception of no jurisdiction over the person of the defendant.

On August 29, 2011, the trial court rendered judgment, granting the Tennessee realty company’s exception of no jurisdiction and dismissing the plaintiffs’ lawsuit with prejudice. On October 18, 2011, the plaintiffs filed a petition for a devolutive appeal.

Discussion

A trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction over the person of the defendant is reviewed de novo. See Walker v. Super 8 Motels, Inc., 04-2206, p. 4 (La.App. 4 Cir. 12/7/05), 921 So.2d 983, 986 (citation omitted). The Louisiana long-arm statute provides the circumstances under which a Louisiana court may exercise personal jurisdiction, stating in relevant part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
| ¾(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct or derives revenue from goods used or consumed or services rendered in this state.

La.Rev.Stat.l3:3201(A)(4).

In addition, pursuant to La.Rev. Stat. 13:3201(B), “a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” Thus, the limits of the Louisiana long-arm statute are co-extensive with the limits of constitutional due process and the sole inquiry into whether a Louisiana court has jurisdiction over a non-resident is the constitutional due process analysis initially developed in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Walker, supra, (citation omitted). The due process analysis, as enunciated in International Shoe, has evolved into a two-part test wherein the plaintiff must first prove that the defendant has “minimum contacts” with the forum state, ie., that the defendant purposefully availed itself of the privilege of conducting activities within the forum state and thus invoked the benefits and protections of its laws. A & L Energy, Inc. v. Pegasus Group, 2000-3255, p. 5 (La.6/29/01), 791 So.2d 1266, 1271 (citing U.S. Supreme Court cases). Specifically, the plaintiff must show that the defendant’s actions were such that the defendant should reasonably anticipate being “haled into court” in the forum state. Id. (internal quotations and citation omitted). Only once the plaintiff meets this burden does the burden shift to the defendant. A & L Energy, 2000-3255, p. 11, 791 So.2d at 1274 (second prong of two-step due process of analysis requires defendant to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and 1¿substantial justice); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (to satisfy the burden of proving minimum contacts with the forum state, the plaintiff must show that the defendant purposefully availed itself of the laws and protections of the forum state).

A review of the record indicates that the plaintiffs allege they received a brochure and emails pertaining to rental cabins from the Tennessee realty company after they contacted the Gatlinburg Chamber of Commerce and “registered online” for their prospective wedding to be held in Gatlinburg. Notably, the plaintiffs did not submit the brochure or any copies of the emails. Moreover, the plaintiffs submitted no evidence which suggests that the defendants have purposefully targeted citizens of this state as potential customers to the extent that they could reasonably anticipate being “haled” into a Louisiana court. Thus, the plaintiffs did not meet their burden in proving that the defendant has the requisite minimum contacts with this state. Accordingly, we do not find that the trial court erred in granting the defendant’s exception of no jurisdiction over the person of the defendant. We do note, however, that the plaintiffs’ lawsuit should have been dismissed without prejudice because the plaintiffs have a right to file a suit in a court of proper jurisdiction.

Conclusion

We amend the judgment to dismiss the plaintiffs lawsuit without prejudice and, as amended, affirm the judgment.

AMENDED; AFFIRMED AS AMENDED

      . The written judgment reflecting this oral ruling was signed and filed into the record on March 29, 2011.