author: BROWN, Chief Judge.

text:
    STATE of Louisiana, In the Interest of ASW, WRW, DAC, Jr., and JMW.
    No. 49,310-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Samuel D. Goodwin, Counsel for Appellant, the Mother, AW.
    Kimberly S. Smith, Counsel for Appel-lee, State of Louisiana, DCFS.
    Wilbert D. Pryor, Counsel for Appellees, the Fathers.
    Joseph C. Seyler, Baton Rouge, Mental Health Advocacy Service & Child Advocacy Program, Counsel for Appellees, the Minor Children.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

hThe mother of four minor children appeals from the decision of the Caddo Parish juvenile court that irrevocably dissolved and terminated her parental rights and freed her four children for adoption. Parental rights of any known and unknown biological fathers of the children were likewise terminated. Although they did not appeal or answer, DAC, Sr., father of two of the children, together with IE, father of one child, filed a joint brief adopting the mother’s argument. For the reasons set forth below, we affirm the trial court’s decision.

Facts

In December 2008, the Department of Children and Family Services (“DCFS”) received a report concerning the mother and her four children. At that time, ASW was six years old, WRW was four years old, DAC, Jr. was two years old, and JMW was seventeen months old. The report indicated that the mother had recently been hospitalized for depression; she refused to take her prescribed medications; she would lock herself in the bathroom of her home for hours at a time leaving her children unattended; and the two-year old child would run outside unsupervised. Furthermore, the report stated that the mother had dreamed that she was going to kill her four-year-old son, DAC, Jr. Earlier that year, she had been admitted into the psychiatric unit of the former LSUHSC after she was found walking down a street nude and experiencing hallucinations.

Upon her initial visit, the child protection investigator, Kimberly Holmes, found the mother’s house to be covered in dirty clothes, trash, and what appeared to be feces smeared on the walls of the children’s bedroom. l2The children were taken into State custody in January 2009. During the course of Ms. Holmes’ subsequent visits, the mother’s condition improved. Her home was kept cleaner and contained food for the children to eat, and the children were clean upon arriving at school. As a result of the overall improvements, the children were returned to their mother’s care in March 2009. The DCFS family services program offered her housing, assistance, daycare, and mental heath treatment.

In March 2009, DCFS attempted to provide the mother with a psychological evaluation by the LSUHSC Psychiatric Department in order to determine whether she needed mental health services. The mother failed to attend the scheduled appointment. Shortly thereafter she was referred to the court because of an allegation of “lack of supervision” due to her potential mental health issues and an inability to raise her children. In an affidavit in support of an instanter order filed on April, 1, 2009, DCFS investigator, Russell Waller, stated that WRW related in an interview that although it had not happened lately, his mother had hit him in the past with curtain rods, belts, sticks, and other items. WRW and ASW both claimed that their mother spoke to people who were not there. An instanter order was signed on April 1, 2009, ordering the removal of the children from the mother’s custody. On May 21, 2009, the children were adjudicated in need of care.

During the following months, the mother made an effort to address some of her issues by attending counseling with her children and attempting to find suitable housing. However, she was again hospitalized for a month |3from January 2010-February 2010. After being in the custody of the state for almost 16 months, the children were returned to her custody on July 27, 2010, under DCFS’s supervision.

However, by September 2010, the mother’s mental health again deteriorated, and she begin missing therapy appointments for both herself and ASW. The children arrived at school appearing dirty and smelling of urine often to the extent that they had to change once they arrived at school. The mother failed to administer the ADHD medication to WRW as prescribed by his physician. JMW, who was a four-year-old at the time, was reportedly walking to school by himself. The mother failed to appear at the September 21, 2010, court hearing, at which the judge ordered the return of the children into foster care.

On November 24, 2010, custody of WRW was granted to his father, IE. However, within six months, IE relinquished custody of his son, citing behavioral issues. The father testified at trial that he has had no contact with his son since November 2011. On May 4, 2011, after the permanency review, custody of WRW and ASW was granted to the maternal grandparents. Unfortunately, the grandparents relinquished custody of the children back to DCFS and stated that they did not wish to have custody of any of the children in the future. ASW and WRW were returned to foster care in separate homes. DAC, Jr., and JMW remained in the same foster home together. All of the children were demonstrating significant behavior problems.

|4Over the course of the next two years, the mother continued the same patterns of unpredictable behavior. She neglected her mental health appointments and failed to take her medications consistently. The mother often scheduled her mental health appointments on the eve of court hearings. She consistently made excuses for not taking her medications. She was admitted again to Brentwood Hospital in November 2012 for treatment of her bipolar disorder after experiencing visual hallucinations of people and shadows approaching her.

The mother’s consistency in maintaining visitation with her children was regular for periods and then would suddenly cease for a month at a time. Her mental health interfered with her ability to comply with the court-approved rehabilitation plan. The mother would go weeks without utilities and water services in her apartment.

DAC, Jr.’s biological father and JMW’s alleged father, DAC, Sr., is currently incarcerated at the East Carroll Detention Center with an expected release date of December 3, 2015. He was incarcerated briefly in 2009 and then again in 2010.

Ultimately, DCFS filed an action on August 22, 2013, to terminate the parental rights of AW, as well as the children’s fathers. At this time, the children were 12, 11, 8, and 7 years old. DCFS has been involved for approximately six years and the children have been placed in foster care for four years.

The juvenile court in Caddo Parish held hearings on October 24, 2013, and November 4, 2013, and found by clear and convincing evidence |fithe necessary grounds for terminating the parental rights of AW to all four children, the parental rights of DAC, Sr. to the minor children DAC, Jr., and JMW, as well as the parental rights of IE to WRW.

The trial court’s judgment was signed on January 6, 2014. The instant appeal was filed by the mother in this court on February 26, 2014.

Discussion

Parents have a liberty interest protected by due process in establishing and maintaining a meaningful relationship with their children; however, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State in Interest of B.J., 48,857 (La.App.2d Cir.01/15/14), 135 So.3d 777; State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert, denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). Whether a termination of parental rights is warranted is a question of fact, and a trial court’s determination will not be set aside in the absence of manifest error. State ex reí. H.A.B., 10-1111 (La.10/19/10), 49 So.3d 345; State in the Interest ofB.J., supra.

Louisiana Children’s Code article 1015 provides grounds by which a court may involuntarily terminate the rights of parents. State ex reí. H.A.B., supra. DCFS sought termination of the mother’s parental rights under La. Ch. C. art. 1015(5), alleging that the children had been removed from their mother’s care for longer than one year, that there was no substantial compliance with an approved case plan, and that there was no reasonable expectation of significant improvement in the mother’s condition in the near | (¡future, and that termination of the parental rights was in the children’s best interest.

La. Ch. C. art. 1036(D) enumerates the one or more conditions in which the lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced. These include:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Before a state may sever completely and irrevocably the rights of parents in their natural child, due process requires that the state support its allegations by at least clear and convincing evidence. A “clear and convincing evidence” standard adequately conveys to the fact finder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The four children were originally entered into DCFS care pursuant to an oral instanter order issued on April 1, 2009. The children have remained in and out of foster care for over four years, which exceeds the one-year time period delineated by La. Ch. C. art. 1015(5).

|7The mother briefly regained custody of the children on two separate occasions after the initial time that DCFS took custody. The children were initially returned to their mother in February 2009, after she agreed to participate in a voluntary family services program offered through DCFS that offered housing, daycare services, referral to mental health treatment and assistance in applying for LaChip and food stamps for the children. Unfortunately, efforts to maintain the placement of the children with their mother were short lived. Her mental health again deteriorated prompting DCFS to request custody of the children on April 1, 2009. Ultimately, the children were adjudicated in need of care on May 21, 2009.

Following a psychiatric hospitalization in January 2010-February 2010, the mother’s condition begin to stabilize and DCFS attempted, for a second time, to grant her custody of the children on July 27, 2010. However, this placement lasted for less than 60 days. It was reported that then four-year-old JMW was walking to school by himself, and that the mother was failing to administer WRW his ADHD medication. According to reports, she missed her therapy appointments with ASW, who was going to school in dirty clothing and would often wash and change into clean clothes at school. The mother failed to appear at the September 21, 2010, hearing and the judge ordered that the children be placed in state custody at that time due to neglect.

The state presented evidence showing the mother’s lack of compliance with the DCFS agency case plan. The mother argues on appeal that the case plan centered around her obtaining mental health treatment and Dthat mental illness or disability alone is insufficient grounds to terminate parental rights. State ex. reí. L.R.S., 38,-812 (La.App.2d Cir.06/23/04), 877 So.2d 1040.; State in Interest of C.V.W., 48,166 (La.App.2d Cir.04/10/13), 113 So.3d 1202. However, the courts have found that it is important to consider in a termination proceeding the parent’s mental health as it relates to her ability to care for her children. State ex reí. L.R.S., supra; State in Interest of C.V.W., supra.

One component of the mother’s case plan was that she receive mental health counseling and follow the recommendations from her mental health evaluation which included taking her prescribed medications. The record shows that she did not completely ignore her mental health and did seek sporadic treatment at LSUHSC, Brentwood Behavioral Health Center, and Shreveport Behavioral Health Center. She was intermittently hospitalized in psychiatric hospitals since at least 2008. The mother has been prescribed Geodon, Ziprasidone, Benzatropine, Lithium Carbonate, Trazodone, Trileptal, and Abilify during this period. DCFS’s case plan review records indicate a history of the mother’s noncompliance in taking her medication and attending regular counseling appointments. In the trial transcript, she gave the court excuses as to why she was noncompliant with her medication requirements. One reason she gave was her inability to afford a certain medication prescribed; however, Shreveport Mental Health Center reported to DCFS that she never came to pick up the prescription, and that the center would have never prescribed her a medication that was unaffordable.

| sAlthough the case plan identifies an objective addressing the mother’s mental health treatment, the plan clearly set out other critical objectives as well. The case plan required the mother to receive train-' ing to teach her proper parenting skills, classes which she failed to attend. She was also required to attend all family visits with her children and hearings set by the trial court. Although the mother did attend some of the family meetings, the caseworker, Crystal Smith, testified at trial that there were two to three times when the mother missed visits for a month at a time.

Also, the case plan required the mother to keep the case worker informed of her circumstances and update her contact information. The case plan evaluation states that the mother often failed to comply with this requirement. For instance, she stated to the case worker that she has gainful employment; however, she refused to reveal the place of her employment. The mother has also gone months at a time without contacting DCFS. She claims that her phone was disconnected.

The state has an obligation to make a reasonable effort to preserve the family. If such measures fail, the state is required by law to make reasonable efforts to place a child for adoption or with a legal guardian. State ex reí A.T., 06-0501 (La.07/06/06), 936 So.2d 79. The subsequent placements of the children with their mother after DCFS initially took custody is evidence that the mother was given an adequate opportunity to cooperate with the case plan and attempt to improve the conditions that ultimately led to her children’s permanent removal from her home. Although the mother did take steps toward completing her case plan, such |10as seeking some medical treatment and attending family counseling sessions with her children, we do not find that these attempts constitute substantial compliance with her case plan.

The trial court found that there is no reasonable expectation of significant improvement in the mother’s conduct. The trial court considered evidence of the mother’s lack of compliance with her case plan. The case plan required a myriad of action steps for her to comply with prior to receiving full custody of her children, and she failed to fully cooperate. As a result, we concur with the finding of the lower court that, based on clear and convincing evidence, there was no reasonable expectation that the mother would significantly improve in her condition in the near future.

The second issue raised by the mother is the court erred in finding that termination of her parental rights was in the best interest of her four minor children.

The state need only establish one ground under La. Ch. C. art. 1015 and prove the elements by clear and convincing evidence. The judge must also find that the termination is in the best interest of the child. La. Ch. C. art. 1039. State in Interest ofB.J., supra; State in Interest of C.V.W., supra. The court held in State in the Interest ofB.J. and P.W., supra at 782, that:

The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing, by providing an expeditious judicial process for terminating all parental rights and responsibilities and luachieving permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are

The trial court found in this case that it is in the best interest of the children that they be given the opportunity for permanency, which has not been bestowed upon them by their mother or fathers. There are not many circumstances as detrimental to a child’s development as uncertainty as to where he or she shall remain. State ex reí H.A.B., supra.

In the case sub judice, the evidence is clear that the mother’s parental rights are outweighed by the children’s need for permanency, which their mother has shown to be incapable of providing. There is no evidence that her ability to care for her children has improved since DCFS became involved in the case over four years ago. DAC, Jr., and JMW have resided in the same placement together since being taken out of their mother’s home. Although their foster parent is uncertain as to whether she will attempt to legally adopt them, she has stated that she certainly wants to keep them indefinitely. At the time of trial, WRW was in pre-adoptive placement. Although he struggles with behavioral issues, he is reportedly doing well with his current placement. ASW has exhibited mental health issues for which she has been hospitalized. She has received consistent medical treatment at her current placement, which is imperative to her best interest. It is doubtful that her mother would be successful in providing consistent medical care to her child since she is incapable of doing so for |12herself. For the reasons mentioned above, the lower court did not err in finding that the best interest of the children will be served by termination of the mother’s paternal rights and certification of these children for adoption.

Conclusion

The judgment of the juvenile court is affirmed.

      . Her appeal was untimely. However, as there was some confusion about notice and given the nature of the case, this court has decided to hear the appeal.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    In re MEDICAL REVIEW PANEL on Behalf of Dorothy RACHAL.
    No. 48,984-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.
    Rehearing Denied Aug. 7, 2014.

      Kelly & Townsend, L.L.C., Natchitoch-es, by Thomas Taylor Townsend, Nelson & Hammons, APLC, Shreveport, by John L. Hammons, for Appellant, Dorothy Rachal.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., Shreveport, By: Lawrence Wayne Pettiette, Jr., Joseph Samuel Woodley, Rendí B. Wiggins, for Appellee, Ravish V. Patwardhan, M.D.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

h Dorothy Rachal appeals the dismissal of her medical malpractice claim against Dr. Ravish Patwardhan on the granting of Dr. Patwardhan’s exception of prescription.

We affirm.

FACTS

Rachal, who has Alzheimer’s, began living at Garden Park Nursing Home in November of 2007. It was noted at the time that she had adequate memory and could make modified decisions.

Rachal was transported to Willis-Knigh-ton Pierremont Hospital on March 10, 2008, after she fell and exhibited symptoms of altered mental status. A CT scan of the brain showed a left-sided hemispheric subdural hematoma. Dr. Patwar-dhan performed a left craniotomy for evacuation of the hematoma on March 12, 2008.

Dr. Benjamin Nguyen was consulted two days later because Rachal remained confused and disoriented after the surgery. Dr. Nguyen noted that Rachal had a history of baseline dementia which appeared to be mild. His impression was aphasia that was probably due to the hematoma and which worsened with her underlying dementia.

After it was determined that Rachal had reached maximum medical benefit at Willis-Knighton, she was discharged on March 14, 2008, and transferred to Life-Care Hospital for continued treatment.

Rachal was discharged from LifeCare and returned to Garden Park on April 10, 2008. It was noted in her discharge summary that Rachal had some periods of confusion and some bad days, but the majority were good |adays. She had altered mental status shortly before being discharged, but a CT scan of the brain revealed no acute changes.

On December 22, 2010, Rachal submitted a request to the Division of Administration for the formation of a medical review panel to consider her claim that Dr. Patwardhan committed medical malpractice. Rachal alleged that Dr. Patwardhan’s surgery and his lack of postoperative care resulted in a dramatic worsening of Ra-chal’s memory. Rachal further alleged that it was not until September 20, 2010, that she learned that Dr. Patwardhan had been the subject of a disciplinary investigation by the Louisiana State Board of Medical Examiners (“LSBME”) resulting in an interim consent order that restricted his license and prevented him from performing neurosurgery. Rachal contended that she would not have allowed Dr. Pat-wardhan to perform the surgery had she known that he was not competent to perform neurosurgery in a safe and prudent manner.

Dr. Patwardhan filed an exception of prescription on May 29, 2013. A copy of Rachal’s malpractice claim, brief excerpts from her medical records, and two CDs containing her medical records were introduced into evidence by Dr. Patwardhan at the hearing on the exceptions. Rachal introduced Dr. Patwardharis surgical report and the interim consent order into evidence at the hearing. The trial court granted the exception.

DISCUSSION

Rachal argues on appeal that her claim was timely filed because it | Swas filed within three years of the malpractice and within one year of her discovery of the interim consent order.

The prescriptive period for a medical malpractice claim is set forth in La. R.S. 9:5628(A):

No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

In order to soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem agere nulla currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). Contra non valentem in medical malpractice suits is embodied in ’ La. R.S. 9:5628. White v. West Carroll Hosp., Inc., 613 So.2d 150 (La.1992); Edwards v. Alexander, 42,000 (La.App.2d Cir.6/6/07), 960 So.2d 336.

The doctrine of contra non va-lentem acts as an exception to the general rules of prescription by suspending the running of prescription when the circumstances of the case fall into one of four categories. Prescription is suspended under the fourth category of contra non va-lentem when “some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.” Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. Commonly known as the ^discovery rule, this category provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Id. For this category to apply, the plaintiffs ignorance of his cause of action cannot be attributable to his own willfulness or neglect, as a plaintiff is deemed to know what he could have learned by rear sonable diligence. Renfroe v. State ex rel. Dept, of Transp. and Development, 2001-1646 (La.2/26/02), 809 So.2d 947.

' [4,5] When a party has sufficient information to incite curiosity, or put a reasonably minded person on guard and call for inquiry, he has the constructive knowledge necessary to. start the running of prescription. Abbott v. Louisiana State Univ. Med. Ctr.-Shreveport, 35,693 (La. App.2d Cir.2/27/02), 811 So.2d 1107, writ denied, 2002-0952 (La.5/31/02), 817 So.2d 104; Cruse v. Louisiana State University Medical Center, 34,779 (La.App.2d Cir.6/20/01), 792 So.2d 798. When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment, and there is no effort by the health care provider to mislead or cover up information which is available to plaintiff through inquiry or professional medical or legal advice, then the cause of action is reasonably knowable to plaintiff. Failure to act by a plaintiff for more than one year under these circumstances is not reasonable. Abbott, supra; Harlan v. Roberts, 565 So.2d 482 (La.App. 2d Cir. 1990), writ denied, 567 So.2d 1126 (La. 1990).

The prescriptive period in medical malpractice claims will not begin to run at the earliest possible indication that a patient may have suffered |ssome -wrong. Abbott, supra; Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 763 So.2d 575. Rather, in order for the prescriptive period to commence, the plaintiff must be able to state a cause of action — both a wrongful act and resultant damages. Id. The law of prescription does not require that the patient be informed by a medical practitioner or an attorney of possible malpractice before the prescriptive period begins to run. Abbott, supra; Dixon v. Louisiana State Univ. ■ Med. Ctr., 33,036 (La.App.2d Cir.1/26/00), 750 So.2d 408, writ denied, 2000-0627 (La.4/20/00), 760 So.2d 350. -

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id.

The malpractice claim was filed on December 22, 2010, more than one year after the March 12, 2008, date of the alleged act of malpractice. Rachal contended in her claim that the surgery, and Dr. Patwar-dhan’s lack of postoperative care since he never saw or treated her again following the surgery, caused a dramatic worsening of her memory. Rachal further contended in her malpractice claim that she learned on September 20, 2010, that Dr. Patwar-dhan was the subject of a disciplinary investigation by the LSBME, and that she would not have allowed him to perform the surgery had she known that he was not competent to do so in a safe and prudent manner.

|fiIn support of her position that her action is not prescribed on the face of her claim, Rachal references Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. In Campo, the supreme court stated:

[A] petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the patient.
[The lower courts] erred as a matter of law when they found that the Campos’ petition was prescribed on its face. Although the Campos’ petition was filed more than one year after the date of the last act of the hospital and Dr. Correa’s last act upon which negligence was alleged, the plaintiffs pleadings made a prima facie showing that it was filed “within one year from the date of discovery” and “within a period of three years from the date of the alleged act, omission or neglect.” La.Rev.Stat. Ann. § 9:5628(A). Accordingly, the lower courts erred as a matter of law in shifting the burden to the Campos to prove prescription was interrupted. Therefore, we find that the burden of proof at the trial of the peremptory exception rested upon the hospital and Dr. Correa, the exceptors.

Footnotes omitted. Id., 2001-2707 at pp. 9-10, 828 So.2d at 509.

This court has concluded that the ruling on the burden of proof in Campo was dictum, and that Campo is distinguishable in a setting such as this when no petition has been filed in district court. Holmes v. LSU/E. A. Conway Med. Ctr., 43,662 (La. App.2d Cir.10/22/08), 997 So.2d 605. Citing Dixon v. Louisiana State Univ. Med. Ctr, supra, the court in Holmes noted that when met with an exception of prescription filed in district court during a pending medical panel review under the Medical Malpractice Act, the plaintiff is required to prove the defense of contra non valentem as allowed under La. R.S. 9:5628.

With the reasoning in Holmes in mind, we conclude that Rachal had |7the burden at the hearing on the exception to prove that her claim was not prescribed. We note that this case is different from Holmes in one respect. Neither party in Holmes presented any evidence concerning the alleged late discovery of the malpractice. The parties in this matter provided the court with significant facts surrounding Rachal’s discovery of the alleged malpractice.

A review of Rachal’s medical records show that by no later than the end of April 2008, she had constructive knowledge of facts indicating to a reasonable person that she may have been the victim of medical malpractice.

The resident activities record from Garden Park reflects that on April 14, 2008, Rachal was alert with confusion and made statements and asked questions that made no sense. It had been noted in this hospital record 12 days earlier that her daughter visited often.

Rachal returned to Willis-Knighton’s emergency room on April 18, 2008, with symptoms of confusion, decreased mental status, and decreased responsiveness. The symptoms, noticed by Rachal’s daughter, had gradually occurred the day before. It was noted that Rachal had been functioning at full capacity until the prior afternoon when she suddenly lost her level of consciousness and became difficult to arouse. A neurologist was consulted, and he determined that Rachal had a normal neurological exam. He did not find any new neurological deficits, and thought her symptoms could be related to regular day-to-day fluctuations that occur in dementia patients. Rachal’s daughter told the neurologist that she felt her mother had slowly gone downhill since the head injury. A CT scan showed 1 sencephalomalacia in the area of her head injury. Rachal was discharged to Garden Park on April 18 after returning to her normal level.

Rachal was next brought to Willis-Knighton on April 20, 2008. Increased confusion was one of her symptoms. She was discharged that same day.

Rachal returned to Willis-Knighton three days later because of altered mental status. Her daughter told the emergency room staff that her mother had been there a few days earlier for the same symptoms. Her doctors thought that the changes in her mental condition were probably related to her multiple medications. She was discharged to the nursing home on April 28 after she improved clinically. During this hospitalization, Dr. Nguyen examined her and noted that she was awake and alert and could answer simple questions and follow simple commands.

It was recorded in a social progress note at Garden Park on April 30, 2008, that Rachal had short-term memory loss. The fact that her daughter visited Rachal on a daily basis had been noted in the social progress notes a week earlier. Assuming this is the same daughter referenced in other dates in the medical records and who executed the consent form for the cranio-tomy, her frequent contact with her mother is significant as she was apparently involved in her mother’s healthcare and would have been in a position to recognize changes in her mother’s mental well-being.

Rachal maintains that the surgery and lack of postoperative care caused her mental state to worsen so that she was prevented from knowing of her claim within one year of the act of malpractice. However, La. R.S. |g9:5628(B) states that the “[t]he provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.” Moreover, while Rachal’s overall mental status appeared to decline following the surgery, it also appeared that the extent of her mental shortcomings waxed and waned, at least initially on a regular basis.

Rachal further maintains that Dr. Pat-wardhan’s failure to comply with the appropriate standard of care is not limited to the traditional consideration of whether the rendition of care and treatment fell below the standard of care, but also includes whether he failed to obtained appropriate informed consent, as well as whether he lacked the degree of knowledge and skill ordinarily held by neurosurgeons, and that this lack of knowledge or skill resulted in damages.

Rachal argues that she filed her claim within one year of the discovery of the interim consent order that put her on notice that Dr. Patwardhan lacked the required knowledge, skill, and competency to perform neurosurgery. She continues that Dr. Patwardhan’s concealment and misrepresentation of his overall knowledge, skill, and competency triggered the third category of contra non valentón.

This third category is implicated only when (1) the defendant engages in conduct which rises to the level of concealment, misrepresentation, fraud or ill practice; (2) the defendant’s actions effectually prevented the plaintiff from pursuing a cause of action; and (3) the plaintiff must have been reasonable in his or her inaction. Marin v. Exxon Mobil Corp., 2009-23681 in(La.l0/19/10), 48 So.3d 234.

There is nothing in this record indicating that Dr. Patwardhan’s conduct rose to the level of concealment that prevented Rachal from availing herself of her cause of action. The consent order, which restricted Dr. Patwardhan to a nonsurgical practice, was not entered into until September 20, 2010, more than two years after the surgery. The LSBME was conducting an ongoing investigation of Dr. Patwar-dhan regarding alleged violations of the Louisiana Medical Practices Act. Dr. Pat-wardhan could escape the restriction by successfully completing an approved assessment, training, or course of study that demonstrated his ability to perform surgery with reasonable skill and safety. The order was merely a preliminary matter, as it stated:

While maintaining all such rights in the events formal charges are filed in these proceedings and without admitting any violation of the Act or the Board’s rules, Dr. Patwardhan, nonetheless, hereby consents to this Interim Consent Order indefinitely restricting his authority to perform surgery in this state.

The interim consent order would not have provided Rachal with any additional awareness two years later that she was the victim of medical malpractice as she had episodes of diminished mental status in April of 2008 that would have placed a reasonable person on guard that her undesirable condition may have been related to the surgery.

Rachal also maintains that Dr. Patwardhan failed to obtain informed consent because she would not have given consent to the surgery had she known of his lack of knowledge, skill, and competency as evidenced by the interim consent order.

| n Louisiana jurisprudence requires that a plaintiff in an action based on a failure to obtain informed consent prove the following four elements in order to prevail: (1) a material risk existed that was unknown to the patient; (2) the physician failed to disclose the risk; (3) the disclosure of the risk would have led a reasonable patient in the patient’s position to reject the medical procedure or choose another course of treatment; and (4) the patient suffered injury. Snider v. Louisiana Medical Mut. Ins. Co., 2013-0579 (La.12/10/13), 130 So.3d 922.

Written consent to medical treatment means the voluntary permission of a patient through designated means to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or of disfiguring scars associated with such procedure or procedures. La. R.S. 40:1299.39.5(A). The statute further states in section (D):

In a suit against a physician or other health care provider involving a health care liability or medical malpractice claim which is based on the failure of the physician or other health care provider to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or other health care provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

Rachal’s daughter was presented with the risks of the craniotomy l^when she consented to her mother’s surgery. Any questions as to Dr. Patwardhan’s competency as a neurosurgeon raised two years later by the interim consent order are not a risk of death, brain damage, paralysis, loss of function, or disfigurement that is inherent in the procedure.

When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error — clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

Based upon this record, we find no manifest error in the judgment granting Dr. Patwardhan’s exception of prescription and dismissing Rachal’s action against him.

DECREE

At Rachal’s cost, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

      . The medical records numbered over 4300 pages. The court remains mystified as to why Dr. Patwardhan felt it was necessary to introduce all this material. Surely more excerpts could have covered this issue. At the least, additional specific references to page numbers would have been appreciated.

      . La. R.S. 40:1299.40 was amended and reenacted by Act 759, § 2, of 2012 to consist of La. R.S. 40:1299.39.5 to 40:1299.39.7. The general subject matter remained unchanged.


author: STEWART, J.

text:
    SIMMONS, MORRIS & CARROLL, LLC, Plaintiff-Appellee v. CAPITAL ONE, N.A. and Tonya Lambert, Defendants-Appellants.
    No. 49,005-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2014.
    Rehearing Denied Aug. 7, 2014.

      McGlinchey Stafford, New Orleans, by Larry Feldman, Jr., for Appellants.
    Rice & Kendig, Shreveport, by William F. Kendig, Jr., for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

| tAfter falling prey to a form of what is referred to as a “Nigerian check scam,” the plaintiff law firm, Simmons, Morris & Carroll, LLC (hereafter “SMC”), sued the defendants, Capital One, N.A. (“the bank”) and Tonya Lambert (“Lambert”), to recover funds in the amount of $349,175 wired by SMC from its client trust account to what it believed to be a collections client in Japan. Following a bench trial, the trial court rendered judgment in favor of SMC finding that its damages arose solely from the negligent misrepresentation by the bank, through its employee Lambert, that the check representing the funds SMC sought to wire had “cleared” and the specific funds from the check were available in the trust account to be wired. The trial court also granted SMC’s request for attorney fees authorized by La. C.C.P. art. 1472, awarding an additional $90,000 upon finding that Lambert did not properly admit facts in the requests for admissions propounded by SMC. The defendants filed a suspensive appeal. Because we find that SMC did not justifiably rely on the representations made by Lambert and that it is not otherwise entitled to recovery, we reverse the trial court’s judgment in toto.

FACTS

On November 30, 2011, SMC received an email, designated as “SPAM,” relaying a message from an individual named Hiro-shi Oeki (hereafter “Oeki”) of Eki Trading Co., Ltd., in Japan. The message stated, “We would like to retain your firm for debt collection purpose in your state, contact us if you can.” Attorney Trey Morris (“Morris”) forwarded the 12message to Gerald Adam Savoie (“Savoie”), a new attorney with the firm, with instructions to “[ejmail these people back.” Savoie replied to Oeki by email and let him know that more details about the debt matter would be needed for SMC to determine whether to provide representation. Savoie requested information about whether the matter involved “multiple debts in this state or just one,” how the debts were incurred, and the amounts. Oeki responded, “Thanks for your urgent responds, we have a collection matter in your state, the debt owe to us is $350,000 since January 2011, forward us engagement letter to sign and furnish us with your service charges.”

On December 1, 2011, Savoie replied to Oeki’s email and again requested information about the debt, including the debtor’s name and location. Savoie explained that upon receipt of this information, SMC would have to check for any conflicts. He also informed Oeki of SMC’s rates and asked whether he would prefer the $275 hourly rate with the $10,000 retainer or the 25 % contingency fee plan with a $2,000 retainer.

On December 5, 2011, Savoie received the following email from Oeki:

Thanks for your mail, we have inform our debtor of our intention to take legal action, they are nor scared and said they do not want litigation the company do not want a negative mark on their credit report and the have agreed to settle their debt.
I am please to notify you that our debtor head office as issued a final and total payment of their debt of $350,000 no legal action should be taking at the moment, we should wait till two weeks for the payment, if the payment is not received we can go ahead and take a legal action.
Please once payment is receive deduct your retainer fee and all applicable charges from the payment and let us know when to send you our account receivable for you to return the proceed.

|sIt next appears that on December 8, 2011, Savoie, via email, again checked with Morris about his thoughts on the email from Oeki and asked whether any check had been received. Morris then asked Savoie if SMC had gotten a retainer. Sa-voie emailed Oeki to advise him that SMC had not yet received a retainer check and asked when to expect one. That same day, Oeki emailed Savoie again informing him that the payment would be received within two weeks and that if not received, then they would go ahead with legal action.

SMC never received a retainer from Oeki and never obtained any information about the debtor or debt he was purportedly seeking SMC’s assistance in collecting. However, on or about January 19,

2012, SMC received what appeared to be a cashier’s check (“the check”) from the Bank of Nova Scotia in the amount of $350,000 payable to SMC. The memo line on the check read “Radio Shack.” Along with the cheek was a letter from a “Peter Andrews,” which stated:

Please contact your client Eki Trading Co., Ltd. once you have receive [sic] this payment. This is a certified check of $350,000.00 we have send [sic] this part payment of the money owed to avoid litigation brought against us and we shall pay the balance $300,000 by the end of January, 2012.

The letter did not mention “Radio Shak” as the debtor or provide any reason for the debt. The letter referred to an additional $300,000 balance when Oeki had identified the debt as one for $350,000. The letter did not have a business address for Andrews, and the envelope did not have a return address. The email address “pandrews@financier.eom” was the only contact information provided in the letter.

l4Savoie notified Oeki via email of receipt of the check. Savoie’s email stated that SMC had not received a retainer and that the December invoice in the amount of $825 had not been paid. He asked whether SMC should deduct its charges from the check “written by Radioshack.” Oeki replied to Savoie, instructing him to deduct SMC’s charges and “wire the balance.”

Savoie gave the check to Darbi Rice, SMC’s office manager, to deposit in the trust account. Rice prepared the deposit slip. She testified that she did not recognize that the check was a foreign check. SMC’s runner took the deposit, which included the check and an additional deposit in the amount of $5,000, to the bank. No one at SMC noted or informed the bank that the check from the Bank of Nova Scotia was a foreign check. Likewise, the teller who took the deposit failed to note that the check was a foreign check and mistakenly processed it as a deposit of a domestic check. As a result of this oversight, SMC’s account was provisionally credited for the $350,000 deposit. However, that same night the bank’s proof department in Texas caught the mistake and reversed the provisional credit. A notification letter informing SMC of the error in its deposit and the correction was generated on January 20, 2012. The letter explained that the check was drawn on a foreign bank and not payable through the domestic collection process. Instead, the check would be collected through the bank’s International Department and SMC’s account would be credited upon receipt of the funds from the payor bank. SMC did not receive this | ^letter until January 26, 2012. However, according to Laura Wilson (“Wilson”), the bank’s branch manager, SMC could have learned of the reversal of the $350,000 deposit by accessing its account through online banking. In fact, SMC’s online banking record printed on January 26, 2012, supports Wilson’s testimony on this point.

On January 28, 2012, Oeki again emailed Savoie to confirm whether he had received the information about where to wire the funds. Savoie advised Oeki that he had received the information but that SMC would only disburse funds from its trust account by check. Oeki responded that the funds had to be wired because it would take 90 days for a check to clear in Japan. If SMC could not wire the funds, then Oeki asked that it return the check “to our debtor Radio Shack.” SMC opted to wire the funds, rather than return the check to the alleged debtor.

On January 24, 2012, Savoie asked Rice to wire the funds to Oeki. According to Rice and Morris, SMC’s policy concerning checks over $50,000 is to call the bank to verify that the check has cleared before disbursing the funds to clients. Therefore, Rice called the bank that day but was unable to reach the person she typically dealt with and left a message. Neither Rice nor anyone at SMC accessed the account online to see whether the funds from the check were in the trust account.

On January 25, 2012, Lambert returned Rice’s call. Rice testified that she verified with Lambert that the funds from the check had “cleared” and were in the account balance. But in speaking with Lambert, Rice did not tell her that she was inquiring about a foreign check. Before the wire could |fibe sent, the bank required the verbal authorization of a party on the account. Because Morris was out of the office, Rice asked attorney Cynthia Carroll-Bridges (“Carroll-Bridges”) to authorize the wire. Carroll-Bridges knew that the funds were associated with Savoie’s collection case and that they were to be wired to Japan. She was hesitant about authorizing the wire because it was a large sum of money, she had heard of scams targeting attorneys, and she had even received similar junk emails. However, she had never discussed these scams with Morris or Savoie. Carroll-Bridges sent a text to Morris asking whether he wanted her “to verify this big transfer of money.” Morris directed her to go ahead with the wire if the $350,000 deposit was in the account. Though Rice had assured her that she had verified with Lambert that the funds from the check were in the account, Carroll-Bridges testified that she spoke with Lambert on the telephone and again asked Lambert twice whether the funds from the check had cleared and whether the money was in the account. The record does not indicate that Carroll-Bridges told Lambert that she was inquiring about a foreign check or that Carroll-Bridges even knew it was a foreign check. She testified that Lambert assured her that the check had cleared and that the funds from the check were available in the account. Again, SMC never accessed its account to ascertain whether the funds from the check were in its account and never informed Lambert that the check was a foreign check. Relying on Lambert’s representations, Carroll-Bridges authorized the wire transfer.

|7We note that the record includes a letter from SMC bearing Morris’s signature that was faxed to Laura Wilson at 10:37 a.m., on January 25, 2012, requesting the wire transfer and providing the information necessary for is completion. Nothing in the letter or the attached information concerning the transfer indicates that SMC was conditioning the transfer on the check having cleared and the funds from the check being available in the trust account. Deducting $825 in charges for its services in the collection matter, SMC transferred $349,175 dollars from its trust account to the Japan Trading Company as directed by Oeki.

The next day, January 26, 2012, SMC received the bank’s notification letter and learned that the $350,000 check was not deposited into its trust account. Rice testified that Morris had her check the online account information and get a printout. The account details and history showed the deposit on January 20, 2012, and the bank’s correction reversing the $350,000 deposit that same date. Rice also spoke with Wilson at the bank about the wire transfer and Lambert telling her and Carroll-Bridges that the check had “cleared.” Wilson testified that this was when she first learned that the check was a foreign check.

On January 27, 2012, Wilson informed Morris that she spoke with a contact at the Bank of Nova Scotia and verified that the check was a counterfeit. Morris, Rice, and Carroll-Bridges went to the bank to speak with Lambert. They testified that she admitted telling Rice and Carroll-Bridges that the check had cleared and that the specific funds from the check were in the account when they spoke prior to authorizing the wire [¡^transfer. After Lambert’s alleged admission, Morris began recording the rest of their conversation with his cell phone. As shown by the four-page transcript of the recorded part of the conversation, Lambert admitted that she did not go through individual transactions on SMC’s account when she was asked by Rice and Carroll-Bridges about the check.

After an unsuccessful attempt to reverse the wire transfer, SMC filed suit on February 7, 2012, alleging negligent representation by the bank through Lambert. SMC alleged that it complied with its contract with the bank by contacting a relationship banker with questions about the availability of funds from a deposit, that Lambert affirmed the availability of the specific funds from the check, and that it relied on Lambert’s unconditional assertions that the check had “cleared” and the funds from the check were available to be wired.

In their answer, the defendants denied that Lambert was asked or stated prior to the wire transfer that the specific funds from the check were in SMC’s trust account. They also denied any statements attributed to Lambert from the “clandestine recording” made on January 27, 2012, until able to review the recording. Defendants asserted a number of affirmative defenses, including the fault of the plaintiff and / or a third party. They also asserted the protections of transfer warranties and indorser obligations under Louisiana’s Commercial Laws, La. R.S. 10:1-101, et seq., and the indemnification provision under the wire transfer agreement. ■

A bench trial was held on June 12, 2012. At trial, Lambert denied that Rice and Carroll-Bridges had asked her whether the check had cleared |fland denied telling them that the specific funds from the check were in the trust account. She testified that they asked whether there were any “stops” or “holds” on the check, and she explained that this information would have been reflected on the “general tab,” which is all she looked at when she spoke with them prior to completing the wire transfer. Lambert testified that because the general tab did not show any stops or holds on deposited checks and because she did not know that the check they were asking about was a foreign check, she did not believe there was any reason to look at the tab showing the individual transactions on SMC’s trust account to verify the funds available for the wire transfer. The trust account’s balance at the time of this inquiry was approximately $900,000.

In her testimony, Wilson agreed that a customer should contact a banking officer with questions about deposited funds. She explained that foreign checks are. sent for collection. While in the collection process, the foreign check is not yet deposited and would not appear in the account as a stop or hold on the funds. The testimony of both Wilson and Lambert indicated that because Lambert did not know the inquiry was about a foreign check and because no stops or holds appeared on the general tab showing the account’s available balance, Lambert did not believe it necessary to check the individual transactions associated with the account to verify the information sought by Rice and Lambert.

At the close of the trial, the trial judge ruled from the bench in favor of SMC. The trial judge found this to be “a straightforward negligent misrepresentation and detrimental reliance case.” He found that Lambert |inwas asked specifically about the check and told Rice and Carroll-Bridges that the check had cleared. The trial judge found that SMC, by contacting the bank about the availability of the funds from the check, did what the rules thrust upon it by the bank required. Analogizing this matter to In re Succession of McKnight, 33,802 (La.App.2d Cir.10/4/00), 768 So.2d 794, writ denied, 2000-3072 (La.2/9/01), 785 So.2d 822, discussed infra, the trial judge found that the bank assumed the duty to instruct SMC concerning the “assets for distribution of account funds,” that it owed a duty of reasonable care in so advising SMC, and that it breached this duty. The trial judge found no fault on the part of SMC. He concluded that SMC’s damages arose solely from the negligent misrepresentation by Lambert and not from the actions of the scam artists behind the counterfeit check.

On July 1, 2013, the trial judge, heard and granted SMC’s motion for attorney fees and expenses under La. C.C.P. art. 1472. ' The trial judge found that the requests for admissions propounded by SMC were not properly admitted or supplemented when appropriate and that they were not answered in good faith. SMC asked for the full 40 percent contingency fee owed its trial counsel, which would have been $139,670. However, the trial court awarded $90,000 in attorney fees plus expenses.

The final judgment decreeing the defendants liable in solido for damages in the amount of $349,175, attorney fees of $90,000, $3,117.53 in expenses, plus courts costs and interest was signed by the trial judge on July 15, 2013. The defendants appealed.

|„ DISCUSSION

The defendants’ primary issue for review is whether they may be held liable for negligent misrepresentation or detrimental reliance based on Lambert’s statement regarding the status of the check when the bank had no contractual duty to advise SMC because the foreign check was accepted for collection only, SMC’s agents did not tell Lambert that they were inquiring about a foreign check, and SMC received the check under circumstances suggesting a scam.

Applicable Law:

A trial court’s factual findings will not be disturbed unless the record establishes that no reasonable, factual basis exists for the findings and that they are clearly wrong or manifestly erroneous. Daye v. General Motors Corp., 97-1653 (La.9/9/98), 720 So.2d 654; Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be resolved is not whether the trial court was right or wrong, but whether its conclusion was a reasonable one. Foley v. Entergy Louisiana, Inc., 2006-0983 (La.11/29/06), 946 So.2d 144; Stobart v. State, Through Dept. Of Transp. and Development, 617 So.2d 880 (La.1993). Where there are two reasonable views of the evidence, the fact-finder’s choice cannot be manifestly erroneous or clearly wrong. Stobart, supra.

Findings of fact based on credibility determinations made by the trial court are to be given great deference. Feirell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. Absent a finding that the witness’s story is contradicted by documents or objective evidence or that the story is | ^internally inconsistent or implausible, a factual determination based on the factfinder’s decision to credit the testimony of two or more witnesses can “virtually never be manifestly erroneous or clearly wrong.” Id., citing Rosell, supra.

While the above standards emphasize the deference to be accorded to the factfin-der, the supreme court has cautioned the following:

Daye, 97-1653, p. 6, 720 So.2d at 659 (citations omitted); Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216.

Although deference should be accorded to the factfinder, the court of appeal and this court have a constitutional duty to review facts. Therefore it is improper to assert that a trial court’s factual determinations “cannot ever, or hardly ever, be upset.”

With these standards in mind, we find no error in the trial court’s findings of fact as to what was said during the telephone conversations Lambert had with Rice and Carroll-Bridges prior to the wire transfer. The trial court made credibility determinations in favor of SMC and found that Lambert was specifically asked about the check and that she told Rice and Carroll-Bridges that the check had cleared. We cannot say that the trial court’s choice between two reasonable views of the evidence was clearly wrong or manifestly erroneous. However, these factual findings alone are not determinative of whether SMC is entitled to recover for negligent misrepresentation or detrimental reliance.

Our jurisprudence has recognized that the broad language of La. C.C. arts. 2315 and 2316 encompasses the tort of negligent misrepresentation or misinformation. Daye, supra; Devore v. Hobart Mfg. Co., 367 So.2d 836, |ia839 (La.1979). However, jurisprudence has also limited its application to cases where a contractual or fiduciary relationship exists. Daye, supra, and cases cited therein. Negligent misrepresentation cases are evaluated on a case-by-case basis using the duty-risk analysis. Daye, supra; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1015 (La.1993); Long v. Bruns, 31,427 (La. App.2d Cir.1/20/99), 727 So.2d 664, writ denied, 99-0480 (La.4/23/99), 742 So.2d 881. As explained by the supreme court, the duty-risk analysis “adequately protects the misinformer and the misinformed because the initial inquiry is whether, as a matter of law, a duty is owed to this particular plaintiff to protect him from this particular harm.” Barrie, 625 So.2d at 1016. To prevail on a negligent misrepresentation claim, there must be a legal duty on the part of the defendant to supply correct information, there must be a breach of that duty, and the breach must have caused damages to the plaintiff. Barrie, supra; Succession of McKnight, supra. The plaintiffs damages must result from his justifiable reliance on the defendant’s misrepresentation. Tres’ Chic In A Week, L.L.C. v. Home Realty Store, 2007-1373 (La.App.lst Cir.7/17/08), 993 So.2d 228; Hughes v. Goodreau, 2001-2107 (La.App. 1st Cir.12/31/02), 836 So.2d 649, unit denied, 2003-0232 (La.4/21/03), 841 So.2d 793.

Detrimental reliance is a doctrine designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. Luther v. IOM Co., LLC, 2013-0353, p. 10 (La.10/15/13), 130 So.3d 817, 825. Detrimental reliance is codified under La. C.C. art. 1967, which states:

114Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

A detrimental reliance claim requires proof of a representation by word or conduct, justifiable reliance on the representation, and a change in position to one’s detriment because of the reliance. Id.; Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La.4/12/05), 907 So.2d 37; All-britton v. Lincoln Health System, Inc., 45,537 (La.App.2d Cir.10/20/10), 51 So.3d 91.

Thus, both negligent misrepresentation and detrimental reliance claims require justifiable reliance by the claimant on the (mis)representation by the defendant in order to recover.

Review of Claims:

The defendants argue that they owed no duty to advise SMC because there was no fiduciary relationship between SMC and the bank. In support of their argument, they cite La. R.S. 6:1124, which states that no financial institution, its officers, or employees “shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers” in the absence of a written agency or trust agreement by which the financial institution agrees to act as a fiduciary.

As argued by the defendants, there is no written agreement establishing a fiduciary relationship in this matter. However, the absence of 11fia written fiduciary agreement does not foreclose the finding of a duty. The legislature, in enacting La. R.S. 6:1124, “did not intend to totally immunize banks from all legal duties in their relationship with customers and third parties.” BizCapital Business & Industrial Dev. Carp. v. Union Planters Corp., 2003-2208 (La.App.4th Cir.9/8/04), 884 So.2d 623, writs denied, 2004-2473 (La.1/14/05), 889 So.2d 267 and 2004-2505 (La.1/14/05), 889 So.2d 268. While the ordinary relationship between a bank and its customer is that of a debtor-creditor relationship with the bank having no independent duty of care, this court recognized that “certain special circumstances will give rise to a duty.” In re Succession of McKnight, 33,802, p. 3, 768 So.2d at 797.

In McKnight, this court affirmed the trial court’s judgment finding the defendant bank liable under a theory of negligent misrepresentation. The defendant bank failed to provide the correct information when advising its customer on opening a joint account with the plaintiff that would allow for the disbursal of the account funds to the plaintiff upon the customer’s death. This court found that once the defendant bank assumed the responsibility to instruct the customer on the disbursal of the account funds after her death and agreed to distribute them to the plaintiff, it “owed a duty of reasonable care” in advising how to achieve the intended result in favor of the plaintiff. Id., 33,802, p. 6, 768 So.2d at 798.

Analogizing this matter to McKnight, supra, SMC argues that once the bank, through Lambert, assumed the responsibility to advise it as to whether the check had cleared, it owed a duty of reasonable care in advising |1fion the status of the check. However, McKnight, supra, is distinguishable and does not support a finding of a duty in this matter. The bank in McKnight was advising a customer on a matter within its particular area of expertise, namely, how to set up a joint-tenant account so that upon the death of one tenant, the balance would pass to the surviving tenant rather than the decedent’s estate. Here, the information sought from Lambert was equally available to SMC by accessing its trust account online, which would have shown that the funds from the check were not in the account and that, obviously, the check had not “cleared.”

SMC also argues that the “Rules Governing Deposit Accounts” establish a legal duty on the part of the bank to exercise ordinary care, obligate the customer to ask a banking officer questions regarding the availability of funds, and obligate the bank to provide correct information regarding the availability of funds.

The following excerpted provisions from the rules are applicable to this matter:

Accepting Items for Deposit
• Capital One Bank will accept items for deposit, but acts only as your agent for collection and assumes no responsibility for these items, beyond the exercise of ordinary care.
• Even though we credit your account for the amount of any item, this credit is temporary until we receive final payment in cash or other manner acceptable to us.
• Any temporary credit may be reversed by us.
117* All foreign checks are handled as collection items only, and a fee will be assessed.
Receipts for Deposits
We will give you a receipt for the total amount shown on your deposit ticket, but the amount must be verified before it is credited to your account. If an error is discovered in the amount of your deposit, we will adjust your account and notify you of the correction.

In line with the above rules, the bank accepted the check for deposit on January 20, 2012, and temporarily credited SMC’s trust account for the amount of the check. While the teller erred in not recognizing the check as a foreign check, SMC also failed to recognize the check as a foreign check. To the extent that SMC relies on provisions under the bank’s rules governing deposit accounts to delineate its and the bank’s obligations, it cannot ignore the rule providing that foreign checks are han-died as collection items only. Regardless of the error on the part of the bank’s teller, the bank discovered the error in the deposit, namely that the check was a foreign check to be handled as a collection item only, and reversed the temporary credit that same date as shown by SMC’s online banking records in evidence. The bank generated a notification letter that same night, January 20, 2012, but it was not mailed until January 24, 2012. The “Rules Governing Deposit Accounts” state, “Any and' all notices to you shall be deemed effective when mailed to your address as reflected in our records.” Thus, notice regarding the correction of the deposit was effective when mailed on January 24, 2012, two days prior to the wire transfer. Moreover, the record indicates that the deposit correction would have appeared on SMC’s online account well before receipt of the notification letter. For instance, the online account summary printed by SMC on |18January 26, 2012, after it received the notification letter, includes pending transactions for that very day. This suggests that the January 20, 2012, deposit and subsequent correction would have appeared online at or near its occurrence. In fact, the online banking printout shows both recorded on January 20, 2012.

We are not persuaded by SMC’s argument that it did what the rules governing deposit accounts required it to do by asking Lambert whether the check had cleared and that the bank breached its duty under these rules when Lambert told Rice and Carroll-Bridges that the check had cleared and the funds were available. SMC relies on provisions under the “Deposit Availability Disclosure” section of the rules. This section sets forth the bank’s general rule of making deposited funds available on the first business day after the day of the deposit and addresses exceptions where longer delays may apply or where holds may be placed on corresponding funds in the customer’s account when a bank cashes or accepts for deposit a check that is drawn on another bank. Provisions under this section generally advise the customer to contact a banking officer or relationship banker if he or she has questions about when funds from a deposit will be available or if funds deposited will be needed right away. Nothing .in this section addresses foreign checks that are treated as collection items only or even mandates that customers consult a bank’s representative about whether deposited checks have cleared. Rather, this section addresses provisional availability of deposited funds pending the bank’s receipt of final payment on the item. As stated in the rules quoted above, even though an account is | ^credited for the amount of an item deposited, such credit is temporary and may be reversed by the bank.

As explained by Wilson, the teller mistakenly treated the foreign check as a deposit. The erroneous deposit credited to SMC’s account on January 20, 2012, was reversed that same day. Wilson testified that by logging on to its online banking account, SMC could have seen the same thing anyone at the bank would see in checking SMC’s account, namely, that the deposit error had been corrected and the funds were not available in the account. Rice testified that SMC had access to online banking and used it to verify when checks written by SMC cleared its account. Rice admitted that she could have accessed online banking to verify whether the funds from the check were in SMC’s account, but she claimed that was not SMC’s policy. Morris, too, testified that SMC’s policy was to verify funds with the bank before writing a check from the trust account. He opined that checking the account online would have been “ridiculous” and that he would rather SMC depend on a “live screen” at the bank. However, this opinion lacks validity in light of Wilson’s testimony indicating that a customer with online access sees the same account information that is available to the bank. Notably, Rice, at Morris’s direction, checked the account online almost immediately after receiving the notification letter from the bank. The printout made at that time supports a finding that SMC could have learned prior to speaking with Lambert that the funds from the check were not in its account. Under these facts, we cannot find that SMC Improved the element of justifiable reliance required to recover for both negligent misrepresentation and detrimental reliance.

Having reviewed the contract between the bank and SMC, namely, the “Rules Governing Deposit Accounts,” we find no duty on the part of the bank to have informed SMC as to whether the foreign check had cleared, nor do we find that the bank breached its duty of ordinary care with regard to its handling of the check. As stated, the “Rules Governing Deposit Accounts” provide that foreign checks are handled as collection items only. Thus, with regard to the check, the bank was acting as a “collecting bank.” The standard of ordinary care to be exercised by a collecting bank is provided by La. R.S. 10:4-202:

(a)A collecting bank must exercise ordinary care in:
(1) presenting an item or sending it for presentment;
(2) sending notice of dishonor or nonpayment or returning an item other than a documentary draft to the bank’s transferor after learning that the item has not been paid or accepted, as the case may be;
(3) settling for an item when the bank receives final settlement; and
(4) notifying its transferor of any loss or delay in transit within a reasonable time after discovery thereof.
(b) A collecting bank exercises ordinary care under Subsection (a) by taking proper action before its midnight deadline following receipt of an item, notice, or settlement. Taking proper action within a reasonably longer time may constitute the exercise of ordinary care, but the bank has the burden of establishing timeliness.
(c) Subject to Subsection (a)(1), a bank is not liable for the insolvency, neglect, misconduct, mistake, or default of another bank or person or for loss or destruction of an item in the possession of others or in transit.

IziThe record does not establish that the bank failed to exercise ordinary care in its handling of the check as the collecting bank under La. R.S. 10:4-202.

In Bank One, NA v. Dunn, 40,718 (La. App.2d Cir.4/12/06), 927 So.2d 645, unit denied, 2006-1121 (La.9/22/06), 937 So.2d 385, this court affirmed a judgment in favor of the bank by the same trial judge as in this matter. Dunn fell prey to a bizarre scheme involving the sale of computers to Nigeria. He complained that the bank wrongly credited his account for $315,000 before verifying that the check deposited into his account was legitimate. However, the court pointed out that Dunn “showed great alacrity in moving most of the funds from his account” the day after the deposit. Id., 40,718, p. 8, 927 So.2d at 650. This court noted that the defendant bank had no duty to protect Dunn from himself, and the facts showed that he ignored red flags that could have prevented his loss. The same can be said in this case.

As shown by the facts, SMC’s contact with Oeki resulted from a spam email purportedly seeking representation for a debt collection matter in this state. However, nothing in the record indicates any relation between the alleged debt and this state. Despite requests by Savoie for specific information about the debt and debtor, none was provided. Testimony by Morris and Savoie indicated that whatever information they purportedly obtained about Oeki or Eki Trading, they learned over the Internet. According to Morris, because he found the name of the company and associated people on the Internet he concluded that they were “real characters.” Morris testified that Eki Trading was somehow involved in | ^manufacturing, while Savoie testified that “Eki Company loans are provided construction equipment machinery.” SMC received no retainer or other contract for its services from Oeki and apparently did nothing, such as send a demand letter or even contact the alleged debtor, to collect the alleged debt from “Radio Shack.” Having provided no collection services, SMC simply received a substantial check drawn on a foreign bank. The large check was accompanied by a short unsigned letter from a “Peter Andrews.” The letter made no mention of the debtor or the purpose of the debt nor identified Andrews’ role in the matter. The letter had no business address, and there was no return address on the envelope. Though Oeki had represented that the alleged debt was for $350,000, the letter that accompanied the check referred to an additional balance owed of $300,000 that would be forthcoming. SMC had numerous red flags that should have put it on notice that a scam was afoot. Instead, SMC chose to deposit the foreign check into its trust account. Based on Oeki’s claim that it would take 90 days for checks to clear in Japan, SMC then agreed to wire the funds rather than return the chéck. Finally, SMC could have easily learned that the deposit of the foreign check had been corrected and that the funds were not available in its trust account by accessing its account online in the days before speaking with Lambert, who had no knowledge about the suspect circumstances related to SMC’s receipt of the check or that Rice and Carroll-Bridges were inquiring about a foreign check rather than a typical domestic check.

[gjOn these facts, we find that the trial court was clearly wrong in assessing sole fault on the part of the defendants and manifestly erroneous in its apparent finding that SMC justifiably relied on Lambert’s representations about the check. SMC was in the best position to protect itself from the loss it suffered at the hands of the scam artists. Under the facts of this case, we find that the bank had no duty to protect SMC from the particular harm that it would be the victim of a check scam and that SMC was not justified in relying on Lambert’s representations regarding the check when it could have easily accessed its account information and learned that the funds from the check were not in its trust account.

Though a harsh result, jurisprudence from other states has favored the bank over similar victims who fell prey to such scams. In Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 934 N.Y.S.2d 43, 958 N.E.2d 77 (2011), a summary judgment case, the court rejected the plaintiffs negligent misrepresentation claim that was based on HSBC informing the law firm that a check had cleared and the funds were available to be transferred. The court noted that UCC 4-201 does not impose a fiduciary duty on a collecting bank, which is merely the agent of the depositor. Any risk of loss concerning the item remains with the depositor / customer until the collecting bank receives final payment on the item. The court also considered the statement by HSBC’s representative that the check had cleared to be ambiguous and perhaps meant only that the amount of the check was available in the account. The court concluded that reliance on 124the bank representative’s statement as an assurance of final settlement was unreasonable as a matter of law under the circumstances of the case.

In Dixon, Laukitis, and Downing, P.C. v. Busey Bank, 373 IlLDee. 274, 993 N.E.2d 580 CDl.App.3d Dist.2013), the plaintiff law firm sued the bank for negligence alleging that it breached a duty of ordinary care by failing to inquire about the circumstances of how the law firm acquired the substantial check ($350,000 drawn on an account at a Canadian bank), by failing to recognize the check as a counterfeit, and by failing to inform the law firm that funds should not be withdrawn until final payment on the check. The trial court granted a motion to dismiss filed by the bank and the higher court affirmed. The court concluded that any duty owed by the bank to the law firm was defined under the account agreement and the UCC. The account agreement placed the risk of loss on the customer until final settlement of the check, and there was no allegation that the bank breached any duties imposed on a collecting bank under Section 4-202 of the UCC. Referring to the Greenberg decision, discussed above, the court concluded that under both the UCC and the account agreement, the risk of loss remained with the depositor pending final settlement of the check.

While we are not bound to follow the above cases, they are persuasive and provide further support for our disposition of this matter.

For the reasons addressed in this opinion, we find that the trial court erred in assessing sole fault on the part of the bank and Lambert rather than on SMC, which was in the best position to have avoided this calamity.

^CONCLUSION

For the reasons set forth in this opinion, we reverse the trial court’s judgment awarding damages, attorney fees, costs, and expenses. The claims of SMC are hereby dismissed, and costs of appeal are assessed against SMC.

REVERSED and RENDERED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, DREW and GARRETT, JJ.

Rehearing denied.

BROWN and GARRETT, JJ., would grant rehearing.

      . The email messages from Oeki are quoted as they were written.

      . Though SMC deposited the $350,000 check in its client trust account, the record indicates that SMC did nothing to collect the debt on behalf of the alleged client. It received only vague information about the client and debt from Oeki. It obtained no retainer agreement. It sent no demand letters. It generated no invoice for its services.

      . The defendants introduced into evidence an alert from the Louisiana State Bar Association to its members warning them of similar scams targeting lawyers in Louisiana.

      . La. R.S. 10:4-103(a) provides that while the provisions of the Commercial Laws may be varied by agreement, the parties "cannot disclaim a bank's responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure.”

      . La. R.S. 10:4-105(5) defines a “collecting bank” as "a bank handling an item for collection except the payor bank.”

      . See prior discussion in this opinion of the corresponding provision La. R.S. 10:4 — 202.