author: VICTORY, J. WEIMER, J.,

text:
    James S. STUTTS and Lisa K. Stutts v. Chad Z. MELTON and Lauren Meadors Melton.
    No. 2013-C-0557.
    Supreme Court of Louisiana.
    Oct. 15, 2013.
    Rehearing Denied Dec. 6, 2013.

      Taylor, Porter, Brooks & Phillips, LLP, William Luther Wilson, for Applicant.
    Randall A. Shipp, for Respondent.
   VICTORY, J.

_JjWe granted this writ application to determine whether the New Home Warranty Act (“NHWA”), La. R.S. 9:3141 et seq., provides the exclusive remedy between a home builder and a purchaser of residential property, where the builder failed to disclose known defects in the home in a Residential Property Disclosure Statement. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and hold that the purchasers are not limited to the provisions of the NHWA under the facts of this case.

FACTS AND PROCEDURAL HISTORY

Chad Melton was the builder of a residential home in Walker, Louisiana. Construction was completed in December of 2004. Chad and his wife, Lauren, (the “Meltons”) were the first occupants of the home and lived there for approximately nine months before selling the home to James and Lisa Stutts (the “Stutts”) on September 30, 2005. On September 26, 2005, in conjunction with the sale of the property, the Meltons gave the Stutts a Residential Property Disclosure Form in conformity with the Residential Property Disclosure Act, La. R.S. 9:3196 et seq. (the “RPDA”), which stated that there were no known defects in the roof. However, the Meltons had previously discovered color bleeding on the walls due to a defect in the 1¡¡roof and entered into a settlement agreement with the roofing manufacturer, Atlas Roofing Corporation, sixty days prior to selling the house to the Stutts for replacement of the roof. Pursuant to the settlement agreement, Atlas paid the Meltons $13,600.00 for a replacement roof. Rather than replace the roof, the Meltons kept the money, cleaned the color bleeding on the walls and driveway, and installed gutters to prevent further color bleeding.

In the summer of 2006, the Stutts noticed color bleeding on the walls, which was determined to be the result of defective roofing materials. The Stutts contacted Atlas, who told them that the Meltons had previously discovered the defect and entered into a settlement agreement with them to pay for a replacement roof, which exhausted all rights under warranty against Atlas. The Stutts filed suit against the Meltons, claiming that the roofs defective condition was not apparent at the time of the sale, and that the Mel-tons committed fraud by not disclosing the defective condition of the roof in the Residential Property Disclosure Statement and by covering up the defective condition of the roof rather than replacing the roof. The | ¡¡Stutts’ suit against the Meltons prayed for the cost of replacing the roof, or the amount which the Meltons received in the settlement with Atlas, plus costs for additional repairs related to the defective roof, legal interest, and attorney fees.

The Stutts filed a motion for summary judgment on their fraud claim, presenting undisputed material facts which they claimed proved the Meltons committed fraud under La. C.C. art. 1953. The Mel-tons opposed the motion, arguing that the NHWA provides the exclusive remedy for the Stutts. The trial court granted the Stutts’ motion for summary judgment, finding the Meltons liable to the Stutts under the RPDA. After a bench trial, the trial judge found the Meltons guilty of civil fraud and awarded damages of $15,503.55, plus $12,000 in attorney fees. The Mel-tons appealed and the court of appeal reversed both the summary judgment and the money judgment, finding that the Stutts’ sole remedy was provided by the NHWA and that any claims under the NHWA were untimely. Stutts v. Melton, 12-0438 (La.App. 1 Cir. 12/21/12), 2012 WL 6677905 [unpublished opinion]. Two judges dissented. We granted the Stutts’ writ application. Stutts v. Melton, 13-0557 (La.5/17/13), 118 So.3d 373.

DISCUSSION

The NHWA provides mandatory warranties for the purchasers of new homes in Louisiana. La. R.S. 9:3141. The specific mandatory warranties provided by the builder to the purchaser are:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
U(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(3) Five years following the warranty commencement date, .the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

La. R.S. 9:3144(A). La. R.S. 9:3146 provides a peremptive period of thirty days after the expiration of the appropriate time period provided in La. R.S. 9:3144 to enforce any warranty. An owner has a cause of action against the builder who fails to perform as required by the warranties for actual damages, including attorney fees and court costs arising out of the violation. La. R.S. 9:3149. However, the NHWA “provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply.” La. R.S. 9:3150. Based on this exclusivity provision, the Meltons argue, and the court of appeal agreed, that the Stutts can have no other cause of action against them arising from the defective roof other than under the NHWA. Under the NHWA, the defective roof would amount to “noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards,” which is subject to a one-year warranty, and which must be brought thirty days from the expiration of the one-year period. La. R.S. 9:3144(A)(1) and 9:3146. Thus, the court of appeal found that the Stutts’ claim was perempted as it "was brought outside of that peremptive period.

IfiThe Stutts’ petition did not allege any claims under the NHWA, but instead claimed the Meltons were liable under the RPDA and for fraud. The RPDA applies to “the transfer of any interest in residential property, whether by sale, exchange, bond for deed, lease with option to purchase, or any other option to purchase, including transactions in which the assistance of a real estate licensee is utilized and those in which such assistance is not utilized.” La. R.S. 9:3197(A). The RPDA does not apply to “transfers of newly constructed residential real property, which has never been occupied.” La. R.S. 9:3197(B)(5). This was a sale of residential property, and while the property was newly constructed, it had been occupied by the builder, making the provisions of the RPDA applicable to the sale. If the Mel-tons had sold the property to the Stutts upon completion of the home and had never lived in it, they would not have had to comply with the RPDA.

Pursuant to the RPDA, “the seller of a residential real property shall complete a property disclosure document in a form prescribed by the Louisiana Real Estate Commission ... which discloses, at a-minimum, known defects in the residential real property.” La. R.S. 9:3198(A)(1). This form is known as the Residential Property Disclosure Statement. In completing the form, “[t]he seller shall complete the property disclosure document in good faith to the best of the seller’s belief and knowledge as of the date the disclosure is completed and signed by the seller ...” La. R.S. 9:3198(B)(1). The form contains a section entitled “Structure” and the seller must answer affirmatively if there are any defects in various parts of the house, including the roof. In the case of a newly constructed home that had been occupied, the purpose of requiring a Residential Property Disclosure Statement is so that the seller/builder can disclose any defects that he becomes aware of since occupying the house.

| (¡In this Residential Property Disclosure Statement, the Meltons stated that the roof was free of any defects. A “known defect” is defined as a “condition found within the property that was actually known by the seller and that results in any of the following: (a) has a substantial adverse effect on the value of the property; (b) significantly impairs the health or safety of future occupants of the property; or (c) if not repaired, removed, or replaced, significantly shortens the expected normal life of the premises.” La. R.S. 9:3196(1). After a trial on the merits, the trial court found that the Stutts proved that the misrepresentation on the Residential Property Disclosure Statement regarding the condition of the roof had a “significant adverse effect on the value of the property.”

The liability of the seller for lying on the Residential Property Disclosure Statement is expressed in the negative, as follows:

A seller shall not be liable for any error, inaccuracy, or omission of any information required to be delivered to the purchaser in a property disclosure document if either of the following conditions exists:
(1) The error, inaccuracy, or omission was not a willful misrepresentation according to the best of the seller’s information, knowledge, and belief.
(2) The error, inaccuracy, or omission was based on information provided by a public body or by another person with a professional license or special knowledge who provided a written or oral report or opinion that the seller reasonably believed to be correct and which was transmitted by the seller to the purchaser.

La. R.S. 9:3198(E). Though the RPDA provides that the seller is not liable for errors, inaccuracies, or misrepresentations that were not willful misrepresentations, it does not state the extent to which a seller is liable for willful misrepresentations. Thus, the 17Meltons argue that the RPDA does not provide a private cause of action under La. R.S. 9:3198(E) or by virtue of La. R.S. 9:3198(D), which provides:

A property disclosure document shall not be considered as a warranty by the seller. The information contained within the property disclosure document is for disclosure purposes only and is not intended to be a part of any contract between the purchaser and seller.

We disagree with the Melton’s argument. By specifically excepting from liability a seller who makes an error or omission that is not a willful misrepresentation, the only reasonable interpretation of that statute is that a seller who makes a willful misrepresentation is liable. Liability can be found in the fraud articles as the RPDA also provides that “[t]his chapter shall not limit or modify any obligation between buyers and sellers created by any other statute or that may exist in law.” La. R.S. 9:3200. As a sale of real estate is a contract, the law of contracts, including fraud, applies to this case by virtue of La. R.S. 9:3200.

Thus, while the NHWA “provides the exclusive remedies, warranties, and per-emptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply,” the NHWA does not immunize a seller from other contract law provisions the seller is to follow in connection with the sale of the home. Further, as noted earlier, a Residential Property Disclosure Statement is not required with most newly constructed homes. La. R.S. 9:3197(B)(5) (the RPDA does not apply to “transfers of newly constructed residential real property, which has never been occupied”). However, where the builder has lived in the home and later sells it, the RPDA applies and the seller is required to fill out the Residential Property Disclosure Statement, disclosing any known defects that has arisen during the time period that lathe seller occupied the home. Any action claiming the seller made a fraudulent misrepresentation on the statement is not a claim “relative to home construction” under La. R.S. 9:3150; it is a claim that the seller has knowingly misrepresented that the home has a quality which he knows it not to have. In this case, a roof free from defects.

“Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. C.C. art. 1953. “Fraud may also result from silence or inaction.” Id. The trial court found that by misrepresenting the condition of the roof on the Residential Property Disclosure Statement, “the Stutts have satisfied by a preponderance of the evidence the existence of fraud under Civil Code Article 1953.” Here, the Meltons knew about the condition of the roof, as they had made a previous claim that the roof was defective and needed to be totally replaced. After they were paid to have the roof replaced on the condition that they actually replace the roof, they did not. Instead, they made a knowing misrepresentation that the existing roof was free from any defects, and then covered up the evidence of the defect, i.e., the color bleeding on the walls. Thus, we find that there is a reasonable factual basis for the trial court’s finding that the Meltons committed fraud as defined by La. C.C. art. 1953.

The next issue concerns damages, specifically, whether the seller can be held liable for attorney fees in this case. Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract. Sher v. Lafayette Ins. Co., 07-2441 (La.4/8/08), 988 So.2d 186, 201; Rivet v. State, Dept. of Transp. and Development, 96-0145 (La.9/5/96), 680 So.2d 1154; State, Dept. of Transp. and 9Development v. Williamson, 597 So.2d 439, 441 (La.1992).

Fraud vitiates consent, La. C.C.P. art. 1948, and thus is grounds for rescission. See La. C.C. art. 2031 (“A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made.”) As vitiation of consent is grounds for rescission, La. C.C. art. 1958 provides that “[t]he party against whom rescission is granted because of fraud is liable for damages and attorney fees.” Here, the Stutts are not seeking rescission of the sale of their home, although, under the facts of this case and the findings of the trial court, they would have been entitled to it. They are only seeking the replacement value of the roof; in effect, they are seeking rescission of the sale of the roof. Thus, the issue is, when fraud has been proven but the defendant chooses not to seek rescission of the entire sales contract, is he nonetheless entitled to attorney fees?

While La. C.C. art. 1958 allows attorney fees against a party “whom rescission is granted because of fraud,” it is the only code article that allows “damages” of any kind for fraud. There is no provision in the Civil Code for an award of damages where fraud is committed in the formation of a contract, but the plaintiff does not seek rescission of the contract. Although we have long held that attorney fees are not authorized unless provided by statute, this case is different in that no statute specifically provides damages for fraud in this case. Surely, the legislature did not intend the victim of fraud to go uncompensated for attorney fees, or for that matter, any damages at all, unless he seeks rescission of the entire contract. And, if La. C.C. art. 1958 is interpreted to mean that the plaintiff is only entitled to damages and not attorney fees, then the fraudulent defendant is essentially being treated as a good faith | mobligor, who is only liable for damages that were foreseeable at the time the contract was made. La. C.C. art. 1996. This is contrary to law as “[i]t should be clear that in Louisiana the liability of an obligor who committed fraud in failing to perform his obligation, rather than just acting in bad faith, would, for greater reasons, be at least as extensive as the liability of an obligor in bad faith.” Saul Litvi-noff, 6 Louisiana Civil Law Treatise: The Law of Obligations, Part II, Putting in Default and Damages, § 5.20, p. 133 (1999). Further, in our view, the intent of the legislation providing attorney fees when the obligor has committed fraud is to punish the fraudulent conduct, regardless of whether the obligee seeks rescission of the contract. As Professor Litvinoff has pointed out, “the Louisiana Civil Code provides that when rescission of a contract is granted against a party because of his fraud, that party is liable for damages and attorney fees, which seems to intimate that such fees are not damages but something else, and in the context of such a serious wrong as fraud that something else sounds with penalty overtones.” Litvinoff, supra, § 12.30, p. 371.

Pursuant to La. C.C. art. 4, “[w]hen no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity.” “To decide equitably, resort is made to justice, reason, and prevailing usages.” La. C.C. art. 4. Comparable articles are found in the sales articles of the Civil Code. Particularly, the sales articles on redhibition provide that a seller who knows of a defect but fails to declare it is liable for return of the price paid plus interest, reimbursement of reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, damages and reasonable attorney fees. La. C.C. art. 2545. We note that the Revision Comments to La. C.C. art. 2520 provide “[t]he Articles on redhibition do not apply to hidden defects discovered in a new home governed by the New Home Warranty Act, R.S. 9:3141-3150.” La. C.C. art. [^2520 (Official Revision Comment (e) (1993)). However, as we have held, the NHWA does not provide the exclusive remedy to the Stutts because the Meltons also committed fraud in violating the RPDA, which does not fall within the NHWA. Another important provision of these sales articles is that they specify that “a buyer may choose to seek only reduction of the price even when the redhibitory defect is such as to give him the right to obtain rescission of the sale.” La. C.C. art. 2541. We also note that the comments to La. C.C. art. 2545 explain that “this provision [Article 2545] does not preclude an action for fraud against such a seller whenever the requirements of Art. 1953 are met.” La. C.C. art. 2545 (Official Revision Comment (a) (1993)). Thus, while this is not technically a claim for damages under La. C.C. art. 2545, the elements of the Stutts’ fraud claim are essentially the same, if not more egregious. Therefore, in order to provide an equitable remedy, it is reasonable and just to assume the legislature intended at least the same type of damages for fraud where rescission of the entire sale is not sought. Accordingly, we find that the Stutts are entitled to attorney fees in this case.

CONCLUSION

The NHWA provides the “exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction,” but, when the new home is occupied by the builder for some time period before being sold, the builder/seller must also comply with the provisions of the RPDA. This requires the builder/seller to disclose of any known defects in the home, including those which he becomes aware of during his occupancy. Under the RPDA, the seller is liable for any willful misrepresentations on the Residential Property Disclosure Statement. A claim that the seller violated the provisions of the RPDA is not a claim “relative to home construction,” but is a fraud claim. This liability is separate and apart from any | pliability that may arise under the NHWA. As the RPDA does not “limit or modify any obligation between buyers and sellers created by any other statute or that may exist in law,” a seller can be liable for fraud for violating the RPDA. In this case, the trial court found the Meltons committed fraud by making a willful misrepresentation of a known defect and this was not manifest error.

Regarding damages, La. C.C. art. 1958 provides that “[t]he party against whom rescission is granted because of fraud is liable for damages and attorney fees.” Pursuant to the findings of the trial court, the Meltons could have sought rescission of the sales contract, but they did not. They seek the cost of a new roof plus attorney fees. Although we have long held that attorney fees are not awarded unless authorized by statute or contract, this case is distinguishable in that the fraud articles do not address an award of damages for fraud at all where rescission of the contract is not sought. Thus, we resort to equity in determining what sort of damages are awardable in this case. We find that in mandating that a fraudulent party be liable for attorney fees in Article 1958, the legislature was attempting to punish the fraud, regardless of whether rescission is sought. Further, when the Stutts purchased this home, they were misled to believe that they were purchasing a new roof with a lengthy warranty and no known defects. In seeking the costs of a new roof, they are essentially asking for rescission of the contract as to the roof. In addition, the comparable articles on redhibition also award attorney fees where the seller “declares the thing has a quality that he knows it does not have ...” Accordingly, the Meltons are liable for damages for their fraud even though the Stutts are only seeking a new roof, and these damages include attorney fees.

|iaDECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment is reinstated. The case is remanded to the trial court for further proceedings regarding any additional attorney fees incurred since the time of that judgment.

REVERSED; TRIAL COURT JUDGMENT REINSTATED; REMANDED.

WEIMER, Justice, concurs and assigns reasons.

WEIMER, J.,

concurring.

[TI agree with the majority’s conclusion that the Residential Property Disclosure Act (“RPDA”) provides a private cause of action against a seller who makes a willful misrepresentation in a Residential Property Disclosure Statement. I also agree that the plaintiffs/purchasers are entitled to an award of damages and attorney fees for the defendants’ breach of their obligations under the RPDA. However, I do not believe it is necessary to resort to equity to reach this conclusion. Because the cause of action is one arising out of a sale and because, as the majority recognizes, the New Home Warranty Act does not provide the exclusive remedy available to the plaintiffs since the defendants also violated the RPDA, I believe the articles on redhibition, and particularly La. C.C. arts. 2541 and 2545, apply to allow the plaintiffs to recover the damages, including attorney fees, they seek.

      . The letter enclosing the settlement check for $13,600.00 from Atlas to Chad Melton stated:
      Enclosed please find Atlas Roofing Corporation’s check in the amount of $13,600.00 for the full material and labor settlement of the above referenced claim. The settlement amount compensates for the tear off and replacement of the roof and is based on the corrected estimate submitted from LeBlanc Construction and Maintenance, L.L.C. Enclosed for your file is a copy of the corrected estimate.
      When the roof is replaced, please have the roofer save 2 full size shingles that exhibit the rust staining. If the rust is not visible on the shingles, please take the samples from an area of the roof that has caused staining on the bricks, cement etc. Please call this office and a carton along with labels will be sent to you for the return of the shingle samples. You can reach this office at (800) 478-0258 from 8:00 am to 3:30 pm CST Monday through Friday.

        Additionally, by endorsement of the enclosed check you have agreed to replace the shingles within three months. Upon notification that the shingles have been replaced, Atlas Roofing Corporation will have any staining on areas affected by the rust cleaned/corrected. If Atlas does not receive notification of the need to clean or correct any stained areas within this period, Atlas Roofing Corporation will have no obligation to clean or correct affected areas. (Emphasis added.)

      . A "builder” is defined as "any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence.” La. R.S. 9:3143(1).

      . A "major structural defect” is defined as "any actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable: ... (h) roof framing systems.” La. R.S. 9:3143(5). The roof defect in this case did not involve "roof framing systems;” thus, the five year peremp-tive period would not apply.

      . Specifically, after each part of the house, there are boxes to check for “Y," "N," or “NK.” The Meltons checked the "N” box after being asked if there were any defects in the roof.

      . In fact, had the Meltons not occupied the home before selling it to the Stutts, the Stutts would have discovered the defect timely and gotten a new roof under the NHWA, along with attorney fees under La. R.S. 9:3149.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    George T. LUTHER and Jamie C. Luther v. IOM COMPANY LLC (f/k/a Intra-Op Monitoring Services LLC), Dan Joachim M.D., John Partridge and Admiral Insurance Company.
    No. 2013-C-0353.
    Supreme Court of Louisiana.
    Oct. 15, 2013.
    Rehearing Denied Dec. 6, 2013.

      McKnew, King, Mills, Burch & Landry, LLP, Brady Dean, King, II, Monroe, for Applicant.
    Hailey, McNamara, Hall, Larmann & Papale, LLP, Michael J. Vondenstein, Joseph L. Spilman, III, Metairie, Ralph T. Rabalais, New Orleans, Michael J. Mestayer, APLC, Michael John Mestayer, G. Gregory Green, for Respondent.
   HUGHES, J.

BWe granted certiorari in this case to review an appellate court reversal of a district court ruling that the defendants, a medical diagnostic monitoring company and its employee/physician, were not “qualified health care providers” (“QHCPs”) under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41 et seq. (“MMA”), for purposes of alleged acts of medical malpractice. For the reasons that follow, we reverse the appellate court, reinstate the district court judgment, and remand.

FACTS AND PROCEDURAL HISTORY

On October 30th and November 1st of 2007, George Luther underwent two successive surgical procedures on his back at a Monroe hospital, which resulted in neurological damage, including partial paralysis. During the October surgery, Intra-Op Monitoring Services, LLC (“Intra-Op”) provided electro-diagnostic monitoring services to the operating surgeon, by means of an on-site technician (John Partridge) and remote monitoring by Dr. Dan W. Joachim, who was located in Intra-Op’s Covington office. Allegedly, Dr. Joachim and Mr. Partridge 12negligently failed to apprise Mr. Luther’s surgeon, during the October surgery, of “significant loss of function to critical neurological structures,” reporting, instead, functioning within normal limits. The incorrect monitoring reports purportedly deprived the surgeon of the opportunity to take appropriate action, which could have prevented the permanent loss of motor function that Mr. Luther suffered.

Subsequent to these events, Intra-Op was purchased by IOM Company, LLC (“IOM”), in September of 2008. In October of 2008, Mr. Luther requested a medical review panel to evaluate the asserted medical malpractice of his surgeon and the hospital. This request was later amended, in June of 2009, to assert the negligence of IOM, its employees, and medical staff, particularly Dr. Joachim and Mr. Partridge, for their failure to notify Mr. Luther’s surgeon of “salient medical facts which would or could have altered the surgical result of 80 October 2007.”

On July 7, 2009, the Louisiana Patient’s Compensation Fund (“PCF”) forwarded a letter to Mr. Luther’s attorney, stating that “[b]ased on the documents and information in possession of this office as of this date, ... [Intra-Op and Dr. Joachim] are being reported as qualified for acts of medical malpractice under the provisions of [the MMA], for the above referenced claim.” The PCF letter further stated that “[t]he Oversight Board reserves the right to revise its qualification and coverage determination upon receipt of additional information.”

Subsequently, on or about August 11, 2010, Mr. Luther and IOM agreed to settle the matter, with IOM agreeing to pay $100,000 to Mr. Luther in exchange for a release of liability, subject to court approval; Mr. Luther would retain the right to proceed against the PCF. In connection with the petition for approval of the settlement agreement, filed with the 4th Judicial District Court, the Patient’s | sCompensation Fund Oversight Board (“Board”) was served with the petition and given formal notice of the terms of the settlement agreement. Thereafter, the PCF staff reviewed its earlier letter that the defendants were qualified for acts of medical malpractice under the MMA, for Mr. Luther’s claim, and discovered that, at the time of Mr. Luther’s October 2007 surgery, the defendants were not QHCPs under the provisions of the MMA. On August 17, 2010, the PCF notified Mr. Luther’s attorney that its July 7, 2009 letter “incorrectly listed [Intra-Op and Dr. Joachim] as qualified health care providers for the referenced [Medical Review Panel].” The August 17, 2010 PCF letter further stated that “our records reflect that [Intra-Op and Dr. Joachim] are considered not qualified for the acts of medical malpractice under the [MMA].” (Emphasis original.) Letters were also sent on August 17, 2010 to Intra-Op .and Dr. Joa-chim, by the PCF, advising them that the PCF records reflected that they were not members of the fund and were not qualified for panel review, for purposes of Mr. Luther’s claim.

On October 15, 2010, Mr. Luther and his wife filed suit against IOM, Dr. Joachim, Mr. Partridge, and Admiral Insurance Company (IOM’s liability insurer), seeking damages arising out of alleged acts of negligence during Mr. Luther’s October 30, 2007 surgery. IOM and Dr. Joachim filed a third party demand against the PCF and the Board for a declaration by the court that they were QHCPs under the MMA. Thereafter, the PCF and the Board filed a motion for summary judgment, contending that because the defendants had not enrolled with the PCF prior to the date of the alleged tort in this case, but, rather, enrolled after |4the date of Mr. Luther’s October 30, 2007 surgery, they were not QHCPs with respect to the alleged October 30, 2007 malpractice. The defendants responded with a cross motion for summary judgment, asserting that they detrimentally relied on the PCF’s July 7, 2009 letter stating they were QHCPs, and the PCF should be estopped from revoking that “certification.” The district court denied the defendants’ motion for summary judgment and granted the PCF’s motion for summary judgment, finding that the defendants were not QHCPs; the defendants’ third party demand was dismissed.

The defendants then sought review from the appellate court, which reversed the district court’s grant of summary judgment in favor of the PCF and rendered summary judgment in favor of the defendants, prohibiting the PCF from withdrawing its certification that the defendants were QHCPs for this claim. In so ruling, the appellate court reasoned that the defendants “were certified by the PCF as QHCPs” and that the defendants “relied upon this certification in entering into a settlement with the plaintiffs.” See Luther v. IOM Company LLC, 47,667 (La. App. 2 Cir. 1/16/13), 109 So.3d 467. Thereafter, this court granted the PCF’s application for review. See Luther v. IOM Company LLC, 2013-0353 (La.4/19/13), 111 So.3d 1022.

The PCF presents the following assignments of error to this court for review: (1) the appellate court improperly considered the PCF as the defendants’ insurer; (2) the appellate court improperly and erroneously interpreted critical and significant PCF rules and regulations establishing requirements for qualified healthcare provider status for a particular malpractice claim; (3) the appellate court made erroneous factual findings that all conditions and requirements of the PCF’s rules and regulations regarding enrollment were satisfied on October 30, 2007, when there was no evidence to support such a finding; (4) the appellate court improperly applied LSA-C.C. art. 1967 and/or the doctrine of equitable estoppel | Bunder the facts at bar, as there was no evidence that the defendants were reasonable in relying upon representations or were harmed; (5) the appellate court improperly found that the defendants met their burden of establishing a LSA-C.C. art. 1967 and/or equitable estop-pel claim against the PCF; and (6) the appellate court’s application of LSA-C.C. art. 1967 and/or equitable estoppel in these circumstances impermissibly resulted in de facto amendments of the PCF’s rules and regulations, properly and duly enacted pursuant to Louisiana Legislation.

LAW AND ANALYSIS

Motion for Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City, 2010-2828 (La.7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. 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. Id. at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or 16more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2). See also Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002, 1006.

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Dejoie v. Medley, 2008-2223 (La.5/5/09), 9 So.3d 826, 832.

Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131, 137.

Medical Malpractice Act

The legislature enacted the MMA in 1975 in response to a perceived medical malpractice insurance crisis. The legislature intended the MMA to reduce or stabilize medical malpractice insurance rates and to assure the availability of affordable medical services to the public. To achieve those goals, the MMA gives qualified health care providers two substantial advantages in actions against them for malpractice: (1) a limit on the amount of damages recoverable, and (2) the requirement that the claim first be reviewed by a medical review panel before commencing suit in a court of law. Williamson v. Hospital Service District No. 1 of Jefferson, 2004-0451 (La.12/1/04), 888 So.2d 782, 785-86. Because the MMA limits the liability of health care providers in derogation of the general rights |7of tort victims, any ambiguities in the MMA should be strictly construed against coverage. Richard v. Louisiana Extended Care Centers, Inc., 2002-0978 (La.1/14/03), 835 So.2d 460, 468.

The MMA sets forth the method for becoming a QHCP and the benefits thereof in LSA-R.S. 40:1299.42, which in 2007 provided:

A. To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(8) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.
B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.48, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.
(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(0.
(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.
C. Except as provided in R.S. 40:1299.44(0, any advance payment made by the defendant health care provider or his insurer to or for the plaintiff, or any other person, may not be construed as an admission of liability for injuries or damages suffered by the plaintiff or anyone else in an action brought for medical malpractice.
IrD. (1) Evidence of an advance payment is not admissible until there is a final judgment in favor of the plaintiff, in which event the court shall reduce the judgment to the plaintiff to the extent of the advance payment.
(2) The advance payment shall inure to the exclusive benefit of the defendant or his insurer making the payment.
(3) In the event the advance payment exceeds the liability of the defendant or the insurer making it, the court shall order any adjustment necessary to equalize the amount which each defendant is obligated to pay, exclusive of costs.
(4) In no ease shall an advance payment in excess of an award be repayable by the person receiving it.
(5) In the event that a partial settlement is executed between the defendant and/or his insurer with a plaintiff for the sum of one hundred thousand dollars or less, written notice of such settlement shall be sent to the board. Such settlement shall not bar the continuation of the action against the patient’s compensation fund for excess sums in which event the court shall reduce any judgment to the plaintiff in the amount of malpractice liability insurance in force as provided for in R.S. 40:1299.42(B)(2).
E. (1) Financial responsibility of a health care provider under this Section may be established only by filing with the board proof that the health care provider is insured by a policy of malpractice liability insurance in the amount of at least one hundred thousand dollars per claim with qualification under this Section taking effect and following the same form as the policy of malpractice liability insurance of the health care provider, or in the event the health care provider is self-insured, proof of financial responsibility by depositing with the board one hundred twenty-five thousand dollars in money or represented by irrevocable letters of credit, federally insured certificates of deposit, bonds, securities, cash values of insurance, or any other security approved by the board. In the event any portion of said amount is seized pursuant to the judicial process, the self-insured health care provider shall have five days to deposit with the board the amounts so seized. The health care provider’s failure to timely post said amounts with the board shall terminate his enrollment in the Patient’s Compensation Fund.
(2) For the purposes of this Subsection, any group of self-insured health care providers organized to and actually practicing together or otherwise related by ownership, whether as a partnership, professional corporation or otherwise, shall be deemed a single health care provider and shall not be required to post more than one deposit. In the event any portion of the deposit of such a group is seized pursuant to judicial process, such group shall have five days to deposit with the board the amounts so seized. The group’s failure to timely post said amounts with the board will terminate its enrollment and the enrollment of its members in the Patient’s Compensation Fund.

|9There are two prongs to the test of whether a health care provider is qualified under the MMA: (1) whether proof of financial responsibility has been filed with the PCF (pursuant to LSA-R.S. 40:1299.42(A)(1) and 40:1299.42(E)) and (2) whether the surcharge has been paid (pursuant to LSA-R.S. 40:1299.42(A)(2)), which is necessary to provide monies for the fund (as stated in LSA-R.S. 40:1299.44(A)(2)(a)). In addition, in accordance with LSA-R.S. 40:1299.41(A)(10), a health care provider must be licensed or certified by this state to provide health care or professional services and, if a physician, he must possess an unlimited license to practice medicine in this state. See O’Brien v. Rizvi, 2004-2252 (La.4/12/05), 898 So.2d 360, 365.

Subsection (E) of LSA-R.S. 40:1299.42 describes the methods by which a health care provider may establish proof of financial responsibility (by filing with the Board proof that the provider is insured by a policy of malpractice liability insurance meeting the specifications set forth in Subsection E), and LSA-R.S. 40:1299.42(A)(3) governs when a health care provider’s qualification under the MMA becomes effective (when proof of financial responsibility has been filed and the assessed surcharge paid by the provider). Abate v. Healthcare International, Inc., 560 So.2d 812, 820 (La.1990). The MMA does not provide coverage to health care providers who fail to qualify prior to the commission of tortious conduct. Id. at 813.

In this case, the PCF’s motion for summary judgment pointed to the fact that the defendants had not enrolled with the fund at the time of the alleged malpractice and therefore could not be QHCPs under MMA. In support of this contention, the PCF submitted the affidavit and deposition of PCF Surcharge Section Supervisor Susan Gremillion, who verified that PCF records showed no enrollment by the defendants, in 2007, until November 16, 2007. Ms. Gremillion also indicated that, | 10due to a malfunction associated with newly installed computer software, on July 7, 2009, a PCF letter was generated and sent out, which reported that the .defendants were QHCPs with respect to the alleged medical malpractice committed upon Mr. Luther on October 30, 2007. Ms. Gremillion further testified that when the 2010 proposed settlement agreement was presented to the PCF, the error was discovered and corrected correspondence was sent to the parties, which accurately reported that the defendants were not QHCPs with respect to the Luthers’ tort suit.

In the light of this evidence, which the defendants could not refute (IOM CEO Roderick Johnson testified in his deposition that he knew of no evidence in the company’s possession to show that IOM had applied for enrollment in the PCF prior to November 16, 2007), the defendants raised the doctrine of detrimental reliance, based on the PCF’s erroneous 2009 letter that they were QHCPs. The defendants asserted that their decision to enter into a settlement agreement with the plaintiffs was in reliance on their status as QHCPs, and if they had not been erroneously designated as QHCPs, their defense strategy would have been different.

Louisiana Civil Code Article 1967, entitled “Cause defined; detrimental reliance,” codifies the doctrine of detrimental reliance, providing:

Cause 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.

The doctrine of detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence. To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the 1 ^reliance. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37, 59. Estoppels are not favored in our law; therefore, a party cannot avail himself of that doctrine if he fails to prove all essential elements of the plea. See Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1976).

It has been suggested that proving detrimental reliance against a governmental agency should be more burdensome, requiring: (1) unequivocal advice from an unusually authoritative source, (2) reasonable reliance on that advice by an individual, (3) extreme harm resulting from that reliance, and (4) gross injustice to the individual in the absence of judicial estoppel. See Showboat Star Partnership v. Slaughter, 2000-1227 (La.4/3/01), 789 So.2d 554, 563-64; CHL Enterprises, LLC v. State, Department of Revenue, 2009-487 (La.App. 3 Cir. 11/4/09), 23 So.3d 1000, 1005-06, writ denied, 2009-2613 (La.2/12/10), 27 So.3d 848; Showboat Star Partnership v. Slaughter, 98-2882 (La. App. 1 Cir. 2/18/00), 752 So.2d 390, reversed on other grounds, 2000-1227 (La.4/3/01), 789 So.2d 554; Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121 (La.App. 1 Cir. 2/20/98), 710 So.2d 799, 804, writ denied, 98-0780 (La.5/8/98), 719 So.2d 51. See also Gulf States Utilities Company v. Louisiana Public Service Commission, 92-1185 (La.3/17/94), 633 So.2d 1258, 1266 (Dennis, J., concurring); Red River Parish Port Commission v. Headwaters Resources Inc., 698 F.Supp.2d 684, 695 (W.D.La.2010). In this case, the Board is clearly a governmental “agency,” as defined by LSA-R.S. 49:951(2), meaning a state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders, pursuant to, as directed by, or in implementation of the federal or Louisiana Constitution and/or laws, excepting the courts, the legislature or any branch, committee, or officer thereof, any political subdivision, and any board, commission, department, agency, officer, or other entity thereof.

| ^Regardless, the defendants have not shown that all of the elements of detrimental reliance are present in this case, even if the lesser standard were applied. Although the PCF made a representation that the defendants were QHCPs, it was not reasonable for the defendants to have relied on such a representation. The defendants admittedly knew that they had not enrolled with the PCF prior to the allegedly tortious conduct in this case. This court has previously held that a party having the means readily and conveniently available to determine the true facts, but who fails to do so, cannot claim estoppel. See Morris v. Friedman 94-2808 (La.11/27/95), 663 So.2d 19, 25. Although the ownership of the defendant corporation changed hands during the course of this proceeding, the defendants clearly had the means to ascertain from the corporate records whether they were in fact enrolled with the PCF at the time of the tortious conduct at issue, as they had obviously accomplished such a review of their records prior to CEO Johnson’s 2011 deposition.

Furthermore, equitable considerations and estoppel cannot be permitted to prevail when in conflict with the positive written law. Morris v. Friedman, 663 So.2d at 25-26 (quoting Palermo Land Company v. Planning Commission of Calcasieu Parish, 561 So.2d 482, 488 (La.1990)). As indicated hereinabove, a health care provider can only be qualified for participation in the PCF by filing with the Board proof of financial responsibility and paying the assessed surcharge, pursuant to LSA-R.S. 40:1299.42. In addition, PCF rules, promulgated in the Louisiana Administrative Code, require that any application for enrollment be made upon the forms prescribed and supplied by the PCF executive director. See La. Admin. Code, Title 37, § 513. The only application on file with the PCF for the 1 ^defendants in 2007 was filed November 16, 2007 (more than two weeks after the tort); contained on the second page of that application was the following pre-printed notice, directed by the PCF to applicants:

Your primary insurance policy provides CLAIMS MADE coverage for professional liability. Except to the extent as may otherwise be specifically provided in your policy, such primary coverage is limited to claims arising from medical incidents occurring on or after the initial effective date stated in the declarations (“retroactive date”) and first reported to your company while the policy is in force. HOWEVER, THE PCF RETROACTIVE DATE IS THE DATE OF YOUR QUALIFICATION WITH THE FUND, WHICH MAY OR MAY NOT MATCH THE RETROACTIVE DATE ESTABLISHED ON YOUR PRIMARY POLICY. Claims occurring prior to the qualification date with the Fund, REGARDLESS OF THEIR COVERAGE THROUGH YOUR PRIMARY POLICY, are not covered by the Fund. [Emphasis original; boldface added.]

Further, in Part 3 of the defendants’ application, the defendants agreed that it had received the following notice:

I understand that, regardless of the retroactive date established by my primary policy, I will only receive coverage through the Fund for claims which occur after my qualification with the Fund. For a claim to be covered by the Patient’s Compensation Fund, I must have been qualified with the Fund both at the time the medical incident occurred, and at the time the claim was filed with my primary carrier. [Emphasis added.]

Not only were the defendants aware that they were not previously enrolled with the fund on the date that their November 16, 2007 PCF application was filed, but they were expressly advised by the statements contained on the application form that they would not have PCF coverage for any claims prior to November 16, 2007.

In support of its motion for summary judgment before the district court, the PCF established that the defendants were not enrolled or qualified for coverage with the fund until November 16, 2007, after the tortious conduct in this case occurred, on October 30, 2007. Therefore, it became the defendants’ burden to Improve otherwise. The defendants effectively conceded the fact that they were not QHCPs on October 30, 2007, and contended, instead, that the PCF should be estopped, under the doctrine of detrimental reliance, from taking a position contrary to its erroneous July 7, 2009 letter, reporting the defendants were QHCPs. However, the defendants failed to prove an essential element of that claim, i.e., that they reasonably relied on the PCF’s erroneous statement of fact. As stated hereinabove, to prevail on a motion for summary judgment, a party need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial; if the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2); Schultz v. Guoth, 57 So.3d at 1006.

CONCLUSION

In the face of PCF evidence that the defendants either knew or had the means of easily discovering that they were not legally entitled to QHCP status for acts of malpractice occurring on October 30, 2007, the defendants’ claim of detrimental reliance is unsustainable. Consequently, we conclude that the district court was correct in ruling that the defendants were not QHCPs in this- case, in granting summary judgment to the PCF and in denying summary judgment to the defendants. The court of appeal erred in reversing the district court rulings and entering judgment in the defendants’ favor. Accordingly, the judgment of the court of appeal is reversed and vacated in all respects, and the rulings of the district court are reinstated. The case is remanded to the district court for further proceedings.

|1fiDECREE

For the reasons assigned, we reverse and vacate the decision of the court of appeal and reinstate the district court judgment in favor of the Louisiana Patient’s Compensation Fund and against the defendants herein. We remand to the district court for further proceedings.

APPELLATE COURT JUDGMENT REVERSED AND VACATED; DISTRICT COURT JUDGMENT REINSTATED; REMANDED FOR FURTHER PROCEEDINGS.

      . The second surgery on November 1, 2007 was to attempt to correct the migration of a “pedicle screw” placed during the October surgery and to "re-fix” the fusion.

      . Neither Mr. Luther's surgeon nor the surgical hospital are involved in the instant litigation, and the use of "defendants” herein does not reference either the surgeon or the hospital.

      . The September 20, 2010 affidavit of Susan Gremillion, an employee of the PCF, was filed into the record and stated, in part, that she had been supervisor of the PCF Surcharge Section since February 4, 2002, that she had reviewed the PCF records, that IOM had submitted an application for enrollment on November 16, 2007 (a copy of which was attached to the affidavit), and that in connection with that application a certificate of enrollment was issued on August 18, 2010, which showed that the first date of PCF coverage for IOM began on November 16, 2007.

      .Multiple attempts were made to serve Mr. Partridge in Texas, under the Long Arm Statute, LSA-R.S. 13:3201 et seq., but all such letters were returned as undeliverable, and Mr. Partridge made no appearance in the suit.

      . Unless otherwise noted, all law cited herein is to that version in effect at the time of the tortious conduct at issue herein, October 30, 2007.

      . The Board has the authority, under LSA-R.S. 40:1299.44(D)(3), to adopt and promulgate such rules, regulations, and standards as it may deem necessary or advisable to implement the authority and discharge the responsibilities conferred and imposed on the board by the MMA, in accordance with applicable provisions of the Administrative Procedure Act, LSA-R. S. 49:950 et seq.

      . The applicant was listed as Intra Op Monitoring Services, Inc., and Dr. Joachim was listed as a health care provider employed by the company. The enrollment date listed as being sought by Intra-Op was "November 16, 2007.” Also, Intra-Op listed on the application its primary insurer as Evanston Insurance Company, noting its policy with that insurer was a "claims-made” policy and had effective dates of May 1, 2007 through May 1, 2008.


author: PER CURIAM.

text:
    In re Brandi Michelle SANDERS.
    No. 2012-OB-2449.
    Supreme Court of Louisiana.
    Oct. 15, 2013.
    Rehearing Denied Dec. 6, 2013.
    Brandi Michelle Sanders (In Proper Person), Crawford & Ogg, Brian Evan Crawford, Monroe, LA, Ramsey Lee Ogg, for Applicant.
    Committee on Bar Admissions, Monique Rene Drake, Schuermann & Jones, LLC, Lawrence Joseph Centola, Jr., for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner, Brandi Michelle Sanders, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify her for admission to the bar based upon character and fitness concerns relating to her arrest for identity theft and an unpaid judgment against her for nonpayment of a student loan.

Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be conditionally admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet her burden of proving that she has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E). Among other issues revealed in the record before us, we find that the pattern of petitioner’s intentionally dishonest conduct which culminated in her arrest for identity theft raises serious questions concerning |?her good moral character. Petitioner’s conduct caused significant injury, which is still continuing, and she has demonstrated neither remorse nor rehabilitation. Based upon these findings, we conclude petitioner does not possess the requisite good moral character to practice law in Louisiana.

Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until two years have passed from the date of this judgment.

ADMISSION DENIED.

      . Petitioner was stopped for moving traffic violations on four separate occasions over a period of nineteen months in 2009 and 2010, and on each such occasion, she deliberately presented a driver’s license belonging to a friend in order to avoid disclosing to law enforcement that her own driver’s license was suspended.

      . Indeed, petitioner’s claims of remorse and rehabilitation ring hollow in the face of her repeated suggestions that her conduct was somehow defensible because she was in a "tailspin” after she failed the bar exam and lost her job, and that she did not actually commit the crime of identity theft because she did not apply for any credit cards using her friend’s driver’s license.