author: Kyzar, Judge.

text:
    Doris H. USIE v. SUNSHINE HOMES, INC., et al.
    16-780
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017
    Rehearing Denied August 9, 2017
    Jacques P. Soileau, Soileau & Soileau, P.O. Box 344, Breaux Bridge, LA 70517, (337) 332-4561, COUNSEL FOR PLAINTIFF/APPLICANT: Doris H. Usie
    Gina Bradley Tuttle, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., P.O. Drawer 1329, Opelousas, LA 70571-1329, (337) 948-8201, COUNSEL FOR DEFENDANT/RESPONDENT: Royer Mobile Homes of Opelousas, Inc.
    Lamont P. Domingue, Voorhies & Labbé, A Professional Law Corporation, P.O. Box 3527, Lafayette, LA 70502-3527, (337) 232-9700, COUNSEL FOR DEFENDANT/RESPONDENT: Sunshine Homes, Inc,
    Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.
   Kyzar, Judge.

It The plaintiff, Doris H. Usie, filed this application for supervisory writs seeking to have the trial court judgment sustaining the exceptions of prematurity in favor of the defendants, Royer Mobile Homes of Opelousas, Inc. and Sunshine Homes, Inc. set aside. For the following reasons, we grant the writ application and make it peremptory by reversing the trial court judgment and remanding the matter for further proceedings.

DISCUSSION OF THE RECORD

On March 27, 2007, Usie went to Royer Mobile Homes of Opelousas, Inc. (Royer) to find a new manufactured home (hereinafter sometimes referred to as “home”) to take the place of her present home. After choosing a home, she paid a non-refundable deposit of $500.00 by check so Royer would hold the home until.she could arrange financing through a third-party lender. On April 10, 2007, Usie executed a purchase agreement with Royer, which identified both the home and the home’s purchase price of $39,500.00, and which was signed by both Usie and Alan Amy, Royer’s president. However, since Usie’s financing arrangements were not yet finalized, Royer agreed that it would continue to hold the home, as well as Usie’s $500.00 check.

■ On April 19, 2007, First Louisiana National Bank, on behalf of Usie, issued a check payable to Royer in the amount of $33,500.00, for the bulk of the home’s purchase price. The remaining balance of the purchase price, $6,000.00, was obtained from the trade-in value of Usie’s former home. On May 5, 2007, Usie returned to Royer to sign additional documents, one of which was entitled “ACKNOWLEDGMENT AND AGREEMENT (HUD CODE HOME),” which contained the subject arbitration agreement, as follows:

|⅞10. ARBITRATION.' All parties acknowledge and agree that this agreement and the performance of the transactions contemplated hereby evidence transactions which involve a substantial nexus with interstate, commerce. Accordingly, any dispute, controversy or claim of any kind or nature which has arisen or may arise between the parties, their successors, assigns, heirs, representatives, parent companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents, and contractors (including any dispute, controversy or claim relating to the validity of this arbitration clause), whether arising out of past, present or future dealings between the parties, their successors, assigns, heirs, representatives, parent companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents and contractors shall be governed by the Federal Arbitration. Act and shall be settled by arbitration before a single arbitrator -in accordance with Consumer arbitration rules or the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration proceeding shall be held in such location as shall be designated by MANUFACTURER. -The arbitrator shall be appointed by the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Such arbitration proceeding shall be held in such location as shall be designated by MANUFACTURER. The arbitrator shall be appointed by the American Arbitration Association from a list of approved arbitrators except that nothing in the agree- ' ment shall prevent the parties from mutually agreeing on a single arbitrator of then’ own choosing .[sic] The cost of arbitration shall be apportioned equally between the parties. Purchaser agrees that prior to any. arbitration, manufacturer and its agents, investigators, representative, attorneys etc. will be allowed to inspect the home as often as is reasonably necessary to prepare for the arbitration. Without limiting the gener-álity of foregoing, it is the intention of the parties to resolve by binding arbitration, as provided herein, all past, present, and future disputes, whether in tort, contract or otherwise, concerning or related to. (i) the Manufactured Home, its sale, warranty, setup, repair, installation, manufacture, financing, insurance, its representatives, parent companies, divisions, subsidiaries, affiliates, officers, directors, employees, agents, and contractors. The parties understand and agree that'the arbitrator shall have all powers provided by law, and may award any legal or equitable relief, including, without limitation, money damages, declaratory relief and in-junctive relief. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CONTROVERSY BETWEEN THE PARTIES, THEIR SUCCESSORS, ASSIGNS, HEIRS, REPRESENTATIVES, PARENT COMPANIES, DIVISIONS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS.

|aNo representative of Sunshine, the manufacturer, was present when the parties executed this document on May 5, 2007, although the signature of Sunshine’s service manager, Hugh M. Ballard, was added at a later, unspecified time.

Usie alleged that she began experiencing health problems in’ October 2013, and that she discovered leaks in her roof in 2014. Upon further investigation, she determined that there was roof damage, rotting wood, and mold in her home. After paying for extensive home repairs, Usie filed the instant suit against Royer, the seller, and Sunshine.

In response to the lawsuit, Royer and Sunshine each filed exceptions of prematurity, arguing that this suit should be dismissed or stayed and that Usie should be required to arbitrate her claims pursuant to the arbitration clause contained in the “Acknowledgment and Agreement” document signed by her. Following a hearing, the trial court sustained the exceptions and stayed the matter pending resolution of the claims in arbitration. Usie has filed the instant writ application seeking reversal of the trial court judgment.

OPINION

In Abshire v. Belmont Homes, Inc., 04-1200, pp. 7-8 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 283 (alteration in original), writ denied, 05-862 (La. 6/3/05), 903 So.2d 458, this court set forth fhe proper standard for reviewing a trial court’s judgment sustaining an exception of prematurity based on an arbitration provision, as follows:

The dilatory exception of prematurity is provided for in La.Code Civ.P. art. 926(A)(1), and its function is to raise the issue that a judicial cause of action does not yet exist because of some unmet prerequisite condition. Blount v. Smith Barney Shearson, Inc., 96-0207 (La.App. 4 Cir. 2/12/97), 695 So.2d 1001, writs denied, 97-0952, 97-0970 (La. 5/30/97), 694 So.2d 246, [694 So.2d] 247. “It usually is utilized in cases where the law or a contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action,” and “[tjhe exceptor has the initial burden of showing 14that an administrative remedy was available, thus making the judicial action premature.” Id. at 1003. Thus, the burden is upon [the defendant] to establish that a valid and enforceable arbitration agreement exists. See id. In determining whether a party is bound by an arbitration agreement, we apply ordinary contract principles, and a party cannot be required to submit to arbitration a dispute that he has not agreed to submit. Tresch v. Kilgore, 03-0035 (La. App. 1 Cir. 11/7/03), 868 So.2d 91. Whether a court should compel arbitration is a question of law. Dufrene v. HBOS Mfg., 03-2201 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206. Therefore, “[a]p-pellate review of questions of law is simply to determine whether the trial court was legally correct or incorrect.” Id. at 1209.

The law applicable to the enforceability of arbitration agreements was recently discussed in Duhon v. Activelaf, LLC, 16-818, pp. 5-6 (La. 10/19/16), - So.3d -, -, 2016 WL 6123820 (third alteration in original), as follows:

This case involves the legal questions of whether the court of appeal erred in its “contract of adhesion” analysis of the arbitration clause in the Agreement, and whether the arbitration clause is unenforceable on general contract principles of consent or adhesion. Thus, we review the matter de novo. See Aguillard [v. Auction Mgmt. Corp., 04-2804, (La. 6/29/05)], 908 So.2d [1,] 3; Prasad v. Bullard, 10-291 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 39; Horseshoe Entertainment v. Lepinski, 40,753 (La. App. 2 Cir. 3/8/06), 923 So.2d 929, 934, writ denied, 06-792 (La. 6/2/06), 929 So.2d 1259.
Louisiana and federal law explicitly favor the enforcement of arbitration clauses in written contracts. Aguillard, 908 So.2d at 7. Louisiana Binding Arbitration Law (“LBAL”) is set forth in La. R.S. 9:4201 et seq. and expresses a strong legislative policy favoring arbitration. La. R.S. 9:4201 provides:
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
As this court recognized in Aguillard, “[s]uch favorable treatment echos the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq.” 908 So.2d at 7. We noted the LBAL is virtually identical to the FAA, and determinations regarding the viability and scope of arbitration clauses are the same under either law, thus federal jurisprudence interpreting the FAA may be considered in construing the LBAL. Id. Rat 18. Further, to the extent that federal and state law differ, the FAA preempts state law as to any written arbitration agreement in a contract involving interstate commerce. Hodges v. Reasonover, 12-0043 (La. 7/2/12), 103 So.3d 1069, 1072; FIA Card Services, N.A. v. Weaver, 10-1372 (La. 3/15/11), 62 So.3d 709, 712; Collins v. Prudential Ins. Co. of America, 99-1423 (La. 1/19/00), 752 So.2d 825, 827.
The FAA makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contact.” 9 U.S.C. § 2 (emphasis added). The United States Supreme Court has explained that this provision reflects both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” AT & T Mobility LLC v. Concepcion, 568 U.S. 333, 339, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) and Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010)). The Supreme Court has instructed that in line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Concepcion, 563 U.S. at 339, 131 S.Ct. 1740 (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)). Despite this policy favoring enforcement of arbitration agreements, the Supreme Court has also recognized that, under the savings clause in § 2, general state contract principles still apply to assess whether those agreements to arbitrate are valid and enforceable, just as they would to any other contract dispute arising under state law. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902 (1996). Accordingly, ordinary state-law principles that govern the formation of contracts are applied when deciding whether the parties agreed to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). Importantly, the savings clause in § 2 does not permit courts to invalidate an arbitration agreement under a state law applicable only to arbitration provisions. Concepcion, 563 U.S. at 339, 131 S.Ct. 1740; Aguillard, 908 So.2d at 8.

In determining whether an arbitration agreement should be enforced, we first recognize that there exists a strong legislative policy in Louisiana favoring arbitration. Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So.2d 1. In support of this policy, Louisiana has enacted the Louisiana Binding Arbitration Law (LBAL), which is found at La.R.S. 9:4201-4217. Specifically, La.R.S. 9:4202 provides:

|r,If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

The arbitration clause in the present case specifically references the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq. Section Two of the FAA provides:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole of any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (emphasis added).

Usie raises numerous arguments in support of a reversal of the trial court’s ruling, amongst which is that Coleman v. Jim Walter Homes, Inc., 08-1221 (La. 3/17/09), 6 So.3d 179, which the defendants and the trial court relied on, is distinguishable from the facts of the instant case. In that case, the supreme court held that arbitration was required in a claim arising from the sale of a manufactured home. Although the purchaser entered into an agreement to purchase a home manufactured by Jim Walter Homes, Inc., the initial agreement was verbal and both parties understood that written documents would have to be signed at a later date to complete the sale. To that point, the supreme court stated:

Moreover, we see little support. for Mr. Coleman’s, assertion that the parties reached a complete oral agreement regarding the building of the house before the closing documents were signed. It is obvious that the parties contemplated additional documents, such as a mortgage and promissory note, which the law requires to be reduced to writing in order to be effective. Where the parties intend to reduce their negotiations to writing, they are not bound until the contract is reduced to writing and signed by them. Breaux Brothers Construction Co. v. Associated Contractors, Inc., 226 La. 720, 77 So.2d 17, 20 (1954).

Coleman, 6 So.3d at 183.

In contrast, Usie relies on three cases from this court: Quebedeaux v. Sunshine Homes, Inc., 06-349 (La.App. 3 Cir. 10/11/06), 941 So.2d 162, writs denied, 06-2698, 06-2772 (La. 1/8/07), 948 So.2d 181, 948 So.2d 134; St. Romain v. Cappaert Manufactured Housing, Inc., 05-140 (La. App. 3 Cir. 6/1/05), 903 So.2d 1186; and Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-862 (La. 6/3/05), 903 So.2d 458.

In Quebedeaux, this court held invalid an arbitration agreement the seller unilaterally added to a purchase agreement because the buyers would have lost their $15,000.00 down payment and $7,000.00 they spent on site preparation had they refused to sign the agreement. In St. Romain, we held that the purchaser of a manufactured home was not required to arbitrate her redhibition claims, when the evidence showed that the purchaser were unaware of and never signed an arbitration agreement as part of her purchase of the manufactured home. In Abshire, we further held that an -arbitration agreement was invalid when it was not shown to be part of the consideration for the purchase of the home and that the manufacturer, who was not a party to the purchase agreement, could not unilaterally “assign additional consideration for the perfection of the sale.” Abshire, 896 So.2d at 285.

Royer and Sunshine contend that the ruling in Coleman places into question the continued viability of the holdings in Quebedeaux, St. Romain, and Abshire, In Fin & Feather Chalets, LLC v. Southern Energy Homes, Inc., 13-6082, 2014 WL 4354459 (E.D. La. Sept. 2, 2014), which was quoted by the trial court, the federal court declined to address the viability of Quebedeaux, St. Romain, and Abshire because Coleman was on point with the facts at issue in that matter. However, the court in Fin & Feather recognized that state law is applicable to the initial determination of whether an arbitration agreement is valid.

In Posadas v. The Pool Depot, Inc., 02-1819, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 611, 613-14, writ denied, 03-2125 (La. 11/7/03), 857 So.2d 502 (citations omitted) (emphasis added), the court stated as follows:

Although a state law cannot be used to invalidate an arbitration agreement [governed by the FAA] when the law applies only to arbitration agreements, a state law may be applied to invalidate an arbitration agreement if that law governs issues concerning the validity, revocability, and enforceability of contracts generally. Thus, generally applicable contract defenses, such as fraud, duress, or uneonscionability, may be applied to invalidate arbitration agreements without contravening the FAA.

The written purchase agreement in this instance was executed by Usie and Royer on April 10, 2007. Usie alleges that the sale was complete as of that date; while the Royer and Sunshine contend that the sale was not completed until May 5, 2007, when the document containing the arbitration clause was executed. Pursuant to La.Civ.Code art. 2456, “[ownership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” In this instance, the purchase agreement set forth the specific manufactured home that Usie was purchasing and the price to be paid for the home being purchased. While she had not yet obtained financing for the home, La.Civ.Code art, 2456 specifically states that payment of the purchase price is not necessary for ownership to transfer.

Additionally, there is no provision- in the purchase agreement making the procurement of financing a condition precedent to the sale. Although the purchase agreement states, “Title to the within described unit passes as of the date of signing of the retail installment or security agreement by the purchasers even though physical] 9 delivery may not be made until a later date”, financing was not being provided by either the seller or the manufacturer, and those financing documents between the buyer and the third-party lender, if any, were not necessary to the transaction at hand. Further, while the parties anticipated that Usie would trade her used manufactured home as partial payment for the new home, the actual trade in was not required prior to the transfer of ownership of the new home.

Although the trial court concluded that Coleman was controlling, we find that it is distinguishable from the facts at issue here. In Coleman, the parties, who initially entered into a verbal agreement, understood that written documents were necessary to perfect the sale, including the financing documents, which were facilitated by the seller. In the instant case, the parties agree that a written purchase agreement was executed on April 10, 2007, which was clear as to the object of the sale and the price. There were no conditions precedent set forth in the agreement pertaining to this transaction. Indeed, the language in the document itself refers to the purchase as a completed transaction. Moreover, there was neither verbal discussion nor written provisions concerning the necessity to arbitrate at the time the purchase agreement was executed. The first mention of the arbitration agreement was contained in the Acknowledgment and Agreement executed by the parties on May 5, 2007. However, none of the documents executed on May 5, 2007, were necessary for a completed sale because the ownership of the home was transferred on April 10, 2007, at which time either 11flparty could have demanded specific performance of the contract. Had Usie sought to rescind the sale after that date, Royer could legally have denied her request.

Further, while Royer and Sunshine pontificate that Coleman overturned the holdings of this court in Quebedeaux, St. Romain, and Abshire, we find that each of these cases is factually distinguishable from Coleman. To hold to the contrary would be to give every seller the absolute power to demand, even after the fact, that purchasers sign arbitration agreements or risk losing their money or property. Thus, we conclude that the trial court erred in sustaining the peremptory exceptions of prematurity requiring arbitration in this case based upon the holdings in Coleman and Fin & Feathers.

We turn now to determine the validity of the arbitration clause in the agreement dated May 5, 2007, and its effect, if any, when considered separately from the previously executed sale. It is clear that the arbitration agreement, if valid under the contract laws of this state, could, by its own terms, bind the parties to arbitration for any claims related to the prior sale. It is not disputed that the agreement containing the arbitration language was executed by Usie and Royer, through its president, Amy, and that Sunshine was neither a party to the sale nor represented in person when this document was executed.

We find that the facts presented herein are indistinguishable from those in Rodriguez v. Ed’s Mobile Homes of Bossier City, Louisiana, 04-1082 (La.App. 3 Cir. 12/8/04), 889 So.2d 461, writ denied, 05-83 (La. 3/18/05), 896 So.2d 1010. There, an arbitration agreement was invalidated for lack of consent by the purchasers, who executed a purchase agreement for a mobile home prior to the mention of or signing of the arbitration agreement. However, despite the fact that they were already legally and financially liable for the mobile home, the Rodriguez plaintiffs genuinely believed, even if they were never explicitly told so, that the 1execution of the arbitration agreement was a prerequisite to their gaining possession of the home. We held that this “understanding was error under the law.” Id. at 464. We, likewise, hold that Usie’s understanding in this case was also error under the law. Accordingly, we find that Usie’s consent to the arbitration agreement is invalidated based on this legal error.

Further, as we noted in Rodriguez, the manufacturer “knew or should have known that the arbitration agreement could not be part of the consideration of the original contract, especially as no mention of arbitration was made until after signing the original contract. A party cannot, unilaterally, assign additional consideration for the perfection of a sale.” Id. Even if the purchase agreement and arbitration agreement had been contemporaneously, evidence is still required that the arbitration agreement was part of the consideration of the original purchase agreement for it to be valid. Abshire, 896 So.2d 277. In this instance, no such evidence is present. Thus, Sunshine, who was not a party to the purchase agreement, is precluded from unilaterally assigning additional consideration for the perfection of the sale in the form of the arbitration agreement. Had Royer required Usie to agree to the arbitration agreement as to both it and Sunshine as additional consideration for the purchase, it was obligated to include that as a condition of the sale and make it a part of the purchase agreement. It failed to do so. Accordingly, the arbitration agreement fails on its own merits as to both Royer and Sunshine for failure of consideration.

DISPOSITION

For the reasons assigned herein, we grant and make peremptory the application for supervisory writs filed by Doris H. Usie, and in doing so, reverse the judgment of the trial court sustaining the exceptions of prematurity in favor of Royer Mobile Homes of Opelousas, Inc. and Sunshine Homes, Inc. We assess all | iacosts of this writ application to Royer Mobile Homes of Opelousas, Inc. and Sunshine Homes, Inc.

WRIT GRANTED AND MADE PEREMPTORY.

      . Although the Purchase Agreement indicated, in two different locations, that the agreement was subject to the terms and conditions stated on both sides of the agreement, only the front side of the document was introduced into evidence at the hearing on the exception of prematurity.

      . In addition to the Acknowledgment and Agreement, Usie executed a Placement and Service Agreement, an Important Health Notice, a document concerning skirting kits, a Consumer Information document from Sunshine, and the Bill of Sale.


source: Caselaw Access Project

author: WICKER, J. WINDHORST, J„

license: Public Domain

text:
    STATE of Louisiana, IN the INTEREST OF C. F.
    NO. 17-CA-24
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Jessica Coalter
    COUNSEL FOR DEFENDANT/AP-PELLEE, FATHER, C. F., JR., Kevin L. Ambres
    COUNSEL FOR MINOR/APPELLEE, MINOR CHILD, C. F., Laura A. Malveau
    Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   WICKER, J.

| iThe State of Louisiana, Department of Children and Family Services (“DCFS”), appeals the denial of its petition to terminate C.F., Jr.’s parental rights to his minor child, C.F. For the following reasons, we affirm.

On June 9, 2014, DCFS received a report expressing concern for the minor child, C.F. Upon investigation, DCFS learned that C.F.’s mother was deceased and that C.F.’s father, C.F., Jr., had a lengthy history of substance abuse and was reported to be passed out after smoking crack cocaine in the home while the minor child was in his care. On June 20, 2014, DCFS interviewed C.F., Jr., and reported that his behavior was disoriented and his speech slurred. DCFS reported that, during the interview, C.F., Jr. admitted to smoking crack cocaine ten days earlier while the minor child was asleep in the home. C.F., Jr. thereafter made arrangements for C.F. to stay with his sister. For the following six days, DCFS made several attempts to contact C.F., Jr. to transport him for random urine drug screenings and to refer him for substance abuse treatment. In light of C.F., Jr.’s alleged lengthy history of substance abuse and failure to cooperate with DCFS, the trial court granted an oral instanter order directing DCFS to take C.F. into its immediate custody.

On August 12, 2014, the trial court adjudicated C.F. as a child in need of care. The initial case plan goal for permanent placement for C.F, was reunification with a concurrent goal of adoption. C.F., Jr.’s case plan required him to find and maintain stable housing for a period of six months; contribute $25.00 per month for C.F.’s care and support; participate in and complete agency-approved substance abuse classes; participate in mental health evaluations and therapy appointments; | ^complete random drug screenings; participate in all court hearings and scheduled Family Team Conferences (“FTCs”); visit with C.F. as scheduled and bring her nutritious snacks and age-appropriate toys; and complete agency-approved parenting classes.

On September 10, 2015, DCFS filed a petition to terminate C.F., Jr.’s parental rights to C.F. In its petition, DCFS sought to terminate C.F., Jr.’s parental rights on the ground of abandonment pursuant to La. Ch.C. art. 1015(4) and (5). DCFS argued that termination was proper because C.F., Jr. failed to make any significant contributions to C.F.’s care and support for a period of six months and, further, because he failed to substantially comply with his case plan.

On September 29, 2016, the matter proceeded to trial on DCFS’s petition to terminate parental rights. At trial, Kyra Johnson, a child welfare specialist with DCFS, testified that she is the case worker assigned to C.F.’s case. She testified that C.F. came into state custody on June 26,2014, and had been placed in a certified foster home. She testified that C.F. was previously placed into state custody in 2007, when her father C.F., Jr. admitted to using crack cocaine in C.F.’s presence and her mother, E.M., was discovered passed out in the home. Within the initial six-month period in the 2007 case, C.F. was returned to her parents’ custody.

Concerning C.F., Jr.’s contributions to the care and support of C.F., Ms. Johnson testified that, at the time of trial, C.F., Jr. had made no payments in accordance with his case plan for C.F.’s support. She testified, however, that C.F., |aJr. did provide snacks during his visits with the child and further provided her with a cell phone.

Concerning his compliance with his case plan, Ms. Johnson testified that C.F., Jr. received a certificate of completion for the ordered parenting classes and weekly mental health sessions, which included comprehensive evaluations and one-on-one therapy sessions. Ms. Johnson testified that C.F., Jr. “made every appointment” with the evaluating physician. She testified that C.F., Jr. also completed the required substance abuse program and that, prior to December 2015, although he missed a few drug screens he was, generally, “very good with completing his drug screens.” Ms. Johnson testified that C.F., Jr. has tested positive for opiates but that C.F., Jr. provided proof to show that he had been prescribed pain medication. Ms. Johnson testified that C.F., Jr. never tested positive for crack cocaine.

Ms. Johnson testified that, after the filing of the September 2015 petition to terminate, C.F., Jr. did not appear for his December 15, 2015 review hearing. At that hearing, the case plan goal was amended to adoption. C.F., Jr. further did not participate in his January and February 2016 drug screens, which resulted in automatic positive results for those screenings pursuant to DCFS procedures. Ms. Johnson testified that she observed a noticeable difference in C.F., Jr.’s behavior in December 2015, and the beginning of 2016, surmising that C.F., Jr. following the holidays was still grieving the loss of his wife. After the filing of the petition to terminate, C.F., Jr. indicated to Ms. Johnson that he would surrender his rights to C.F. He told Ms. Johnson he felt that everyone was “turning back on him” and that no one was actually trying to help him get his daughter back. C.F., Jr. appeared for the remainder of the drug screens in 2016, up to the date of trial in September 2016. C.F., Jr.’s drug screen in September of 2016 was negative.

LConcerning visitation with C.F., Ms. Johnson testified that prior to December of 2016, C.F., Jr. visited with C.F. twice a month and regularly made those visits with her, missing few visits. She testified that C.F., Jr. brought snacks for C.F. to each visit. Ms. Johnson testified that C.F., Jr. was in an accident in March of 2016, which required him to have multiple surgeries. She testified that C.F., Jr. missed his monthly visitations with C.F. from March 2016 through July 2016, and that C.F., Jr. was immobile after the accident but was likely mobile by June 2016. C.F., Jr. visited with C.F. as scheduled in August and September 2016.

Regarding his income and housing, Ms. Johnson testified that C.F., Jr. receives $1,067.00 per month in social security benefits. She testified that C.F., Jr. has always had housing since C.F. entered state custody, but that his housing has been inconsistent. She testified that C.F., Jr. recently, in June 2016, leased a 4-bedroom home in Westwego, which provided space for C.F. and appeared operable with working utilities upon inspection. Although C.F., Jr. had stable housing at the time of trial, Ms. Johnson testified that C.F, Jr.’s housing was still a concern because he shared his home with his two adult sons and his daughter-in-law, who each have had open foster care cases.

Ms. Johnson testified that C.F. is very happy with her foster care family, who is willing to adopt her. She testified that C.F. does not want to be removed from her foster family and would like to be adopted. She testified that C.F. has been diagnosed with depression since June of 2016 at which time she began medication. C.F. is attending trauma therapy as she has suffered extreme distress from the loss of her mother. On cross-examination, Ms. Johnson admitted that she has not spoken to the doctor treating C.F. for depression to determine if a part of Rthe trauma and resulting depression is also the result of losing her father’s daily presence in her life as. well. Ms. Johnson testified that, since June of 2016, C.F. has begun exhibiting extreme behavior, and has been caught stealing a package off of someone’s porch, and lying. C.F. is enrolled in therapy and is receiving support and professional care to address her recent behavioral issues.

C.F., Jr. testified at trial that he loves his daughter and that he wants to regain custody. He specifically denied that he uses any illicit drugs and testified that he has been sober for approximately a year and a half. He admitted that he had smoked crack cocaine and that, following the death of his wife, he was in a bad place and went down the wrong path. He further testified that he is a recovering alcoholic and does not drink alcohol. He testified that he is willing to continue substance abuse programs to show that he is committed to remaining sober to regain custody of C.F.

C.F., Jr., testified that he has been taking prescribed medications for “a long time.” He testified that he broke his back years ago, when he was approximately twenty years old, while working on the river. He testified that he has never informed his doctors that he has had a substance abuse problem with crack cocaine, indicating essentially that it is irrelevant because he has never had a substance abuse issue with prescribed pain medication. He stated that any pain medication he has taken has always been prescribed to him by a physician.

Concerning visitation, C.F., Jr. testified that his daughter is suffering from the loss of her .mother and has put up an “ice barrier” and that “one visit an hour a day is not even nearly enough to even start breaking through the ice barrier” to communicate with C.F. He acknowledged that he did not visit with C.F. from April to July 2016. He testified that he broke his hip and his leg and was immobile for a period of time and- that he did not want C.F. to see him like that and to worry about him. He acknowledged that C.'F.’s foster parents are very good people and lathat he has the “utmost respect” for them and what they have done for C.F. However, he testified that he wants to be in C.F.’s life and that he is her father and he loves her very much. He testified repeatedly that he would do “anything” to regain custody of C.F.

Concerning his housing, C.F., Jr. testified' that he resides with his two adult sons, which are C.F.’s siblings. He testified that he thinks it would be in C.F.’s best interest to be with him and her siblings who love her. He further testified that he was previously unable to obtain stable housing because he is on a limited income and only began receiving his full social security benefit of $1067.00 per month in July of 2016. He further testified to his understanding that, if he regained custody of C.F., he would receive additional benefits, totaling approximately $400.00 per month, to assist with housing and C.F.’s needs. C.F., Jr. testified that he would do “anything” to regain custody of C.E., but, when asked if he planned to move out of the home he shares with his sons, he contrarily indicated that his adult sons need his income to live and that they likely “are not going anywhere.” He further testified that, to his knowledge, his sons do not use drugs and that he has never seen his sons use drugs in his home. He testified that if his sons began using drugs in the home, he would have to contact the police and remove them from the home.

C.F., Jr. further testified that, if he regained custody of C.F., he would plan to establish housing in Reserve, so that C.F. could maintain contact with her friends and continue with her life there. He testified that his wife wanted C.F. involved in the church and the community in Reserve and that he would do his best to make that happen. He admitted, however, that he could not financially afford to move' to Reserve in the immediate future.

Concerning the period of time where he did not appear for drug screenings and failed to appear at his December 2016 review hearing, C.F., Jr. denied that he [ 7refused tests or failed to appear because he was on drugs. He testified that, during that time, he felt that there was no need to take the drug tests-and continue with his case plan because he had discussed surrendering his rights with DCFS. C.F.-, Jr. expressed frustration with the September 2015 filing of the petition to terminate his parental rights so soon after,he had completed substance abuse, mental health, and parenting courses. He testified that, at that time, he felt like he could not fight anymore.

On December 2, 2016, the trial court issued a judgment with incorporated reasons, denying DCFS’s petition for termination of parental rights. The trial judge found that DOFS met its burden by clear and convincing evidence to prove abandonment under La. Ch.C. art. 1015(4), pointing out that C.F., Jr, failed to make any significant contribution to C.F.’s care and support. The trial judge, however, found that DCFS failed to meet its burden to prove that termination was proper under article 1015(5) for C.F., Jr.’s failure to substantially comply with his case plan. The trial judge pointed to Ms. Johnson’s testimony that, at the time of the'June 2015 review hearing and before the September 10, 2015 filing of the petition to terminate, C.F., Jr. had substantially complied with his, case plan with the exception of stable housing and financial support.

Recognizing that the state must only prove one statutory ground for termination, the trial judge then considered whether the termination of parental rights would be in the best interest of the child. With reasons, the trial judge found that, despite a finding of abandonment, it would not be in C.F.’s best interest to | sterminate C.F., Jr.’s parental rights. The trial judge denied DCFS’s petition but did not transfer custody of C.F, to C.F., Jr. under La. Ch.C. art. 1089.

DCFS appeals the denial of its petition to terminate C.F., Jr.’s parental rights.

DISCUSSION

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. State ex rel. A.T., 06-0501 (La. 7/6/06), 936 So.2d 79, 82. In a termination of parental rights proceeding, the law provides that a parent’s rights shall be terminated if the state proves at least one of the statutory grounds for termination of parental rights, as set forth in La. Ch.C. art. 1015, by clear and convincing evidence. State ex rel. D.D.M., 07-1017 (La.App. 5 Cir. 3/25/08), 983 So.2d 141, 145. The department need only establish one of the enumerated grounds for termination set forth in La. Ch.C. art. 1015. State in Interest of J.R., 11-351 (La.App. 5 Cir. 12/13/11), 84 So.3d 623, 628. In addition, however, the trial judge must find that termination of the parent’s rights is in the best interest of the child. State ex rel. D.D.M., 983 So.2d at 145.

While parents have a fundamental liberty interest in maintaining a meaningful relationship with their children, the child has a profound interest, usually at odds with those of the parents, in terminating parental rights that inhibit secure, stable relationships found in a home with proper parental care. In balancing these two interests, the courts of this state have consistently found that | athe child’s interest is paramount. State ex rel C.J.K. 00-2375 (La. 11/28/00), 774 So.2d 107; State in Interest of J.R., 11-351 (La.App. 5 Cir. 12/13/11), 84 So.3d at 628; State ex rel. E.I.R., 13-450 (La. App. 5 Cir. 11/19/13); 130 So.3d 360, 373, quoting State in Interest of M.B., 12-547 (La. App. 5 Cir. 1/31/13), 108 So.3d 1237, 1241; see also State ex rel. T.P.M., 06-530 (La.App. 5 Cir. 11/28/06), 947 So.2d 751, 757.

Concerning termination of parental rights under La. Ch.C. art. 1015, this Court has recently stated:

La. Ch.C. art. 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds by clear and convincing evidence. La. Ch.C. art. 1035(A). Further, even upon finding that the State has met its evidentiary burden, a court still must not terminate parental rights unless it determines that to do so is in the child’s best interest. State ex. rel. 16-652, p.15 (La. App. 5 Cir. 03/15/17), [2017 La. App. LEXIS 438,] 214 So.3d 1022.

Thus, a two-pronged inquiry is posed in.parental termination proceedings. See State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/04/02), 831 So.2d 918, 922. First, the party seeking termination must establish, by clear and convincing evidence, at least one ground for termination under La. Ch.C. art. 1015. Id. And second, only after a finding that at least one of the enumerated grounds set forth in La. Ch.C. art. 1015 has been established, the court must determine whether the termination is in the child’s best interest. Id. The determination of best interest is within the discretion of the trial court and is made by the trier of fact considering the totality of the circumstances. State in Interest of T.J., 48,612 (La.App. 2 Cir. 9/11/13), 124 So.3d 484, 493 n.17. Whether termination of parental rights is warranted is a question of fact, and a district court’s factual determination will not be set aside in the absence of manifest error. State ex rel. K.C.C., 15-84, pp. 5-6 (La. App. 5 Cir. 5/26/16), 2016 La. App. Lexis 1025, - So.3d -.

| 10Under this standard of review, an appellate court’s task is not to determine whether the factfinder was right or wrong, but whether the factfin-der’s conclusion was reasonable. Id. If the conclusion is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. (Quotations omitted). Indeed, even where an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. (Quotations omitted).

In our review, we must first determine whether the trial court manifestly erred in finding that at least one ground for the termination of C.F., Jr.’s parental rights under La. Ch.C. art. 1015 was proven by clear and convincing evidence. Upon our review of the record, we find that the trial judge correctly determined that DCFS established, by clear and convincing evidence, the ground of abandonment under La. Ch.C. art. 1015(4), which, at the time of the filing of DCFS’s petition for termination, provided:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

The record reflects that DCFS proved by clear and convincing evidence the statutory grounds for abandonment under La. Ch.C. art. 1015(4)(b). DCFS’s case worker, Ms. Johnson, testified that C.F., Jr. failed to make any of the monthly payments ordered in his case plan to contribute to the support of C.F. Other than|nsnacks he provided at his visits with C.F. and a cell phone that he provided in 2015, C.F., Jr. made no financial or other contributions to C.F.’s care and support. The snacks and cell phone provided do not constitute significant contributions to C.F.’s care and support. Based upon the uncontradicted testimony presented at trial, we find the trial judge correctly determined that DCFS met its burden to prove abandonment under La. Ch.C. art. 1015(4) by clear and convincing evidence.

Having found that the record supports the trial court’s finding of abandonment, we must now determine whether the trial judge was clearly wrong in concluding that the termination of C.F., Jr.’s parental rights was not in C.F.’s best interest. In her reasons for judgment, the trial judge found that it would be “unfair” to C.F., Jr., as well as to C.F., to terminate parental rights in light of the fact that less than three months before the filing of the petition to terminate, at the June 2015 review hearing, C.F., Jr. had substantially complied with his case plan and was making progress. Further, the trial judge pointed out that C.F. began to exhibit extreme behavior and is still suffering from the loss of her mother. The record reflects that DCFS did not introduce any evidence, such as medical testimony or records, to determine the reason for C.F.’s recent behavior and whether it is related to the loss of her father, as well as her mother.

The record reflects that, at the time the petition to terminate was filed in September of 2015, C.F., Jr. had complied with his case plan goals to complete substance abuse, mental health, and parenting courses. He maintained consistent visitation with C.F. until his March 2016 accident, bringing the child snacks at each visit and attempting to engage in conversation with her. C.F., Jr.’s testimony reflects that he loves his daughter very much and wants to regain custody and | ^remain in her life. With that said, the record also reflects that C.F., Jr. continues to reside in a home with his two adult sons, both of whom have also had open DCFS cases, contrary to DCFS’ case plan requirement to maintain secure and stable housing for C.F. Further, although he has not tested positive for cocaine since C.F. has been in state custody, he has missed numerous drug screenings and on several occasions tested positive for opiates. We recognize that C.F,, Jr. has a prescription for , his narcotic pain medication. However, C.F., Jr.’s lengthy use of narcotic medication in addition to the fact that he has not disclosed to his physicians—who have prescribed the medication—his history of crack cocaine substance abuse, may indicate that he continues to suffer from substance abuse issues that may require continued attention and may inhibit his ability to care for C.F.

This Court, concerning appellate review in a termination proceeding, has- recently stated:

[W]e must always keep in mind that if a trial court or jury’s findings are reasonable in light of the record, we may Hot reverse, even if convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compare with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the'respective courts.

State ex rel. K.C.C., 15-84 p.18 (La. App. 5 Cir. 05/26/16), 2016 La. App. LEXIS 1025. (Internal citations omitted).

We are constrained thus by the manifest error standard of review in this case. We point out that the trial. court judgment dpes. not transfer custody of the minor child to C.F., Jr, pursuant to La. Ch.C, art. 1039; rather, the judgment simply, at this hatime, denies DCFS’s petition for permanent termination of C.F., Jr.’s parental rights. Constrained by the manifest error- standard of 'review—and given the fact that the trial'court judgment does not transfer custody and C.F. remains in the care of her stable foster family—we must affirm the judgment of the trial court.

DEGREE

• For the above mentioned reasons, we affirm the trial- court judgment denying DCFS’s petition to terminate C.F., Jr.’s parental rights to his minor child, C.F.

AFFIRMED

WINDHORST, J„

DISSENTS WITH REASONS

hi respectfully disagree with the majority’s, opinion affirming the trial court’s denial of The State of Louisiana, Department of Children and Family Services’ (DCFS) petition to terminate. C.F.,, Jr.’s parental rights to his minor child, C.F,.

First, it is undisputed- that DCFS met its burden proving abandonment pursuant to La. Ch.C. art. 1015(4) by clear and convincing evidence. Second, the record clearly showed that it was in C.F.’s best interest to terminate C.F., Jr.’s parental rights. I believe that the trial court was manifestly erroneous and clearly wrong in concluding it was not in C.F.’s best interest. Accordingly, I would reverse the trial court’s judgment and grant DCFS’ petition to terminate C.F., Jr.’s parental rights to C.F.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, the initials of the parties will be used to protect the identity of the minor child.

      . C.F.’s mother’s death certificate was introduced into evidence and reflects that C.F.’s mother died on December 30, 2013, of natural causes.

      . C.F. remained with her paternal aunt until July 7, 2014, at which time she was placed in a non-relative placement after repeated requests from the relative caregiver, who was unable to provide for C.F.

      . La. Ch. C. art. 1015 was amended under Acts 2016 No. 608 § 1. The amendment, for the relevant portions of .the article at issue in this appeal, did not substantively amend the grounds upon which DCFS may seek termination of parental rights by abandonment, which is now provided in sections (5) and (6) of La. Ch.C. art. 1015. In this opinion, we will refer to the version of the statute in effect at the time of the filing of the petition to terminate.

      . Specifically, DCFS alleged that C.F., Jr. failed to maintain a safe, stable home; failed to consistently attend court-approved visitation with the child; failed to keep the department apprised of his whereabouts; continued to have positive drug screening results; and failed to make substantial improvement in redressing the problems preventing reunification,

      . The trial judge took judicial notice of the underlying child in need of care (CINC) record.

      . The record reflects that the certified foster parent is the mother of C.F.’s former first grade teacher.

      . During the previous year, C.F., Jr. had been evicted from his home in Reserve, Louisiana, and had temporarily resided with his father in Kenner, and his friend in Metairie. Ms. Johnson testified to her understanding that C.F., Jr. needed his adult sons’ income to contribute to the costs of the household. Ms. Johnson further testified that C.F., Jr. did not qualify for government housing assistance. Concerning C.F., Jr.’s adult sons’ foster care cases, Ms. Johnson testified that one son’s case was closed because the minor child was adopted after the father failed to comply with drug screenings or any aspect of his case plan; the status of the other son’s foster case was unknown.

      . At the time of the filing of the petition to terminate, LA. Ch.C. art. 1015(5) provided:
      Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

      . La. Ch.C. art. 1039, in pertinent part, provides the following actions permitted in a judgment denying a petition to terminate:
      B. If the court finds that the alleged grounds are not proven in accordance with the evidentiary standards set forth in Article 1035 or if the court finds that termination of parental rights is not in the best interests of the child, it shall enter written findings on both issues and may:
      (1) Dismiss the petition.
      (2) Reinstate the parent to. full care and custody of the child.
      (3) If the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI. >
      (4) Upon a showing of sufficient facts, adjudicate the child in need of care in accordance with Title VI.
      (5) Upon a showing of sufficient facts, adjudicate the family in need of services in accordance with Title VII.
      (6) Make any other disposition that is in the best interest of the child.

      . Because the state must only prove one statutory ground to support a petition to terminate and because we find that the trial court correctly found that the state proved abandonment under La. Ch.C. art. 1015(4) by clear and convincing evidence, we do not address whether the trial court erred in failing to find additional statutory grounds for termination. See State ex rel. M.B., 12-547 (La. App. 5 Cir. 1/30/13), 108 So.3d 1237, 1243.

      . See State ex rel. D.L.G., 12-1609 (La. App. 1 Cir. 05/31/13), 2013 La. App. Unpub. LEXIS 359, 2013 WL 2393104.

      . In her reasons, the trial judge also pointed out that DCFS never alleged that C.F., Jr. physically abused C.F.

      . La. Ch.C. art. 1039, in pertinent part, provides:
      B. If the court finds that the alleged grounds are not proven in accordance with the evidentiary standards set forth in Article 1035 or if the court finds that termination of parental rights is not in the best interests of the child, it shall enter written findings on both issues and may:
      (1) Dismiss the petition.
      (2) Reinstate the parent to full care and custody of the child.
      (3) If the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI.
      (4) Upon a showing of sufficient, facts, adjudicate the child in need of care in accordance with Title VI.
      (5) Upon a showing of sufficient facts, adjudicate the family in need of services in accordance with Title VII,
      (6) Make any other disposition that is in .the best interest of the child.


author: CHEHARDY, C.J.

text:
    AMERICAN TURBINE TECHNOLOGY, INC. v. OMNI BANCSHARES, INC. d/b/a Omni Bank, Nicole Nicholas, Clinton Nicholas, and Edward Swan
    NO. 16-CA-707
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, AMERICAN TURBINE TECHNOLOGY, INC., Victoria L. Bartels
    COUNSEL FOR DEFENDANT/AP-PELLEE, OMNI BANCSHARES, INC. D/B/A OMNI BANK, Pauline F. Hardin, Graham H. Ryan
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   CHEHARDY, C.J.

Lin this appeal, plaintiff, American Turbine Technology, Inc., seeks review of the district court’s July 14, 2016 judgment granting summary judgment in favor of defendant, Omni Bank, and dismissing plaintiffs action with prejudice. For the reasons that follow, we reverse this judgment and remand the matter for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Philip Pawlicki is the sole shareholder and president of American Turbine Technology, Inc. (“American”). Mr. Pawlicki hired Nicole Nicholas in 1999 as office coordinator and fired her in 2010 after discovering that she had converted company funds to her personal use. As office coordinator, Ms. Nicholas had a wide array of responsibilities, which included, among many other things, receiving mail, answering phones, bookkeeping, and managing all aspects of the company’s finances. Because Mr. Pawlicki travelled a lot for business, Ms. Nicholas was also permitted, with the requisite authorization, to conduct company business on behalf of the company with a facsimile stamp of Mr. Pawlicki’s signature.

On April 12, 2000, American obtained a $150,000 line of credit from Omni Bank (“Omni”), evidenced by a promissory note (the “master note”) in that amount signed by Mr. Pawlicki on behalf of American. This was secured with, among other things, a collateral mortgage on Mr. Pawl-icki’s personal property and a personal guaranty by Mr. Pawlicki. Terry Hall was the Omni loan officer who assisted Mr. Pawlicki in opening this line of credit and was assigned to manage it. Mr. Hall was replaced by Brian Heiden in 2003.

Mr. Pawlicki testified that when requesting a disbursement on this line of credit, he did so orally over the phone with Omni. He maintains that he only made three oral requests on the credit line: $10,000, $25,000, and $10,000. Conversely, |gMs. Nicholas testified that Mr. Pawlicki notified her when he wanted to draw on the line of credit, and that she submitted the requests to Omni via fax stamped with his signature.

There was also disagreement as where the funds were deposited after they were disbursed. Mr. Pawlicki explained it was his understanding that the funds were wired directly into American’s primary operating account at Chase Bank (formerly “Bank One”). On the other hand, both Mr. Heiden and Ms. Nicholas explained that the disbursed funds were initially deposited into American’s account at Omni. Though Mr. Pawlicki • disputes that this account existed, Mr. Heiden attested that Omni’s records indicate a bank account was opened at Omni in the name of American in connection with the line of credit. Additional evidence in the record reflects that a commercial checking account in the name of American was opened at Omni on May 10, 2000; and the signature card executed at the time this account was opened expressly permitted the use of facsimile signatures in connection with the account. Notwithstanding this evidence, Mr. Pawl-icki persistently repudiated any knowledge of this account. But according to Ms. Nicholas and Mr. Heiden, it was into this account that funds disbursed on the line of credit were first deposited. Ms. Nicholas then issued checks from this Omni account with the signature stamp and deposited them into the Chase account, from where they were put to company use, according to her. to

American alleges that Ms. Nicholas abused this process between May 2002 and December 2003 whereby she used the signature stamp without Mr. Pawlicki’s authorization to request disbursements of funds from the line of credit, totaling $140,000. American contends that after the funds had been transferred from the Omni account to the Chase account, Ms. Nicholas converted the funds from the isChase account to her personal use. Thus, American concedes in its brief that “the advances transferred, by [Ms. Nicholas] from Omni Bank to Bank One/Chase cannot be linked directly to specific acts of theft by [Ms. Nicholas] on specific dates.”

Ms. Nicholas denies' these allegations. She avows that each of these disbursement requests was made at Mr. Pawlicki’s instruction and that the funds were ultimately put to company use. As it turned out, Ms. Nicholas pled guilty in federal court to forgery in 2013 and was ordered to pay restitution to Mr. Pawlicki in the amount of $65,295.73. The factual basis offered by the government for this guilty plea was that Ms. Nicholas issued unauthorized checks from American’s Chase account with Mr. Pawlicki’s signature stamp totaling $65,295.73 for private school tuition, mortgage payments, and other personal items.

American also alleges that Ms. Nicholas took additional steps to conceal and continue her crime. American contends that Ms. Nicholas used Mr. Pawlicki’s signature stamp without his authorization to renew the line of credit at Omni. The line of credit was renewed annually on five occasions: April 25, 2001, April 29, 2002, September 26, 2003, September 24, 2004, and February 23, 2006. Mr, Pawlicki admits that he authorized the renewals in 2001 and 2002, but alleges that Ms. Nicholas forged the latter three. Ms. Nicholas denies that she forged any of these documents. Mr. Heiden testified that he could not specifically recall witnessing Mr. Pawl-icki signing the renewals, but he explained that he often dropped off the documents to Ms. Nicholas and received them back bearing Mr. Pawlicki’s signature.

In or around June of 2006, the line of credit reflected an outstanding balance of approximately $101,000. This balance evidently had not changed for some 14time, as Mr. Heiden explained that the outstanding balance as of December 31, 2004 was $101,111. This debt was reflected in American’s 2004 corporate income tax return, in which the line for “Mortgages, notes, bonds payable in less than 1 year” 'reflected an amount of $101,111. Although Mr. Pawlicki stated that he had not signed this return that was filed with the IRS, he acknowledged that it bore his signature stamp and was dated September 12, 2006. So, because the line of credit was still stagnant in June of 2006, Omni did not offer to renew the line of credit. Instead, it was converted to an amortized term loan. American alleges that the promissory note executed on June 16, 2006 converting the line of credit to this term loan was also forged by Ms. Nicholas.

American further claims that Ms. Nicholas changed American’s' address on file with Omni without Mr. Pawlicki’s authorization in her efforts to conceal her crime. In March of 2002, Omni received a request to change American’s address on file to a P.O. Box. Ms. Nicholas explained that she submitted this request at Mr. Pawlicki’s instruction to facilitate the receipt of company mail; As a result, for ‘ a time, all correspondence from Omni was sent to the P.O. Box, of which Mr. Pawlicki maintains he was unawai-e.

Mr. Heiden attested that in connection with American’s bank account, Omni sent by U.S. mail monthly account statements to the address on file, which was at various times American’s business address and the P.O. .Box. In connection with American’s line of credit, Mr. Heiden attested that Omni sent by U.S. mail statements and notices regarding the loan and guaranty to the address on file, which was at various times American’s business addresses, Mr. Pawlicki’s personal addresses, and the P.O'. Box.

|fiMr. Pawlicki maintains that he never received or reviewed any statements from Omni. He also admitted that he never received or reviewed any statements from American’s Chase account. Indeed, Ms. Nicholas stated that she never saw Mr. Pawlicki look at any bank statements. Mr. Pawlicki even admitted that had he timely reviewed American’s bank statements, he would have discovered the alleged misappropriations.

Mr. Pawlicki also admitted that he never reviewed or sought to review documents from Omni to ensure that debt on the line of credit was being paid off. He just “assumed” there was no balance. Based on this assumption, and despite knowing that annual renewals were required for the line of credit, Mr. Pawlicki disregarded the lack of correspondence from Omni and chose not to inquire further into the matter.

This was in keeping with Mr. Pawlicki’s hands-off management style. He admitted that he never reviewed any of American’s files, books, records, or any other financial documents, because, as he explained, “It wasn’t my style.” He entrusted' Ms. Nicholas to handle all of American’s accounting, banking, and finances with minimal oversight.

Eventually American’s loan was placed into default. On December 24, 2007, Mr. Heiden sent by certified mail a letter to Mr. Pawlicki’s home address advising him that the loan was in default. Mr. Pawlicki claimed that he never received this letter.

Mr. Heiden followed this letter "with another sent by certified mail on March 11, 2008 to Mr. Pawlicki’s home address. In this letter, Omni advised Mr,.Pawlicki that the collateral property securing the loan had been sold at a tax sale due to delinquent property taxes. The letter further explained: “As a reminder, you have pledged a mortgage of this property to secure the loan of American Turbine. The delinquent taxes are a violation of the mortgage and place your loan in [ f,default.” This letter included a Certified Mail Receipt that Mr. Pawlicki acknowledged bore his signature. He explained that when he received this letter, he called Ms. Nicholas and told her, “You need to fix this.” He had expected Ms. Nicholas to pay the property taxes on his personal properties as part of her job responsibilities.

Then, in 2009, Mr. Pawlicki began receiving collection calls. He looked into the matter and learned that his bank statements had been sent to the P.O. Box of which he claimed no knowledge. This prompted him to further investigate his company’s finances. Based on his investigation, Mr. Pawlicki determined that Ms. Nicholas had been misappropriating company funds from American’s Chase account. Mr. Pawlicki closed the account and opened a new one on November 17, 2009.

After discovering Ms. Nicholas’ activities in the Chase account, Mr. Pawlicki began to investigate American’s accounts with Omni. In a meeting .with Mr. Heiden on or about March 14, 2010, Mr. Pawlicki claims he learned for the first time that the line of credit had been converted to a term loan and had an outstanding balance of $94,876.72. Mr. Pawlicki admitted that after learning this, in or around this time, he made several payments on the loan totaling $90,000.

On March 9, 2011, American filed a “Petition for Nullity or Rescission of Contract, for Breach of Contract and for Damages for Conversion.” In this petition, American named as defendants Omni, Ms.- Nicholas, Ms. Nicholas’ husband, and her father. American alleged that Ms. Nicholas had converted $140,000 of company funds that originated from the Omni line of credit between May 2002 and December 2003 and that Mr. Pawlicki did not first learn of this until on or about March 14, 2010. American sought to recover from Omni on the bases that Omni had breached the master note by honoring unauthorized advance requests by Ms. Nicholas and that the forged 2003, 2004, and 2006 promissory 17notes to renew the line of credit and the 2006 forged note converting the line of credit to a term loan were relative nullities.

On May 5, 2011, Omni answered American’s petition and filed a reconventional demand, seeking under the defaulted note: (1) principal in the amount of $8,713.60, (2) interest from maturity until paid at the default rate of 18% per annum' until paid, (3) attorney’s fees in the amount of 25%, and (4) all costs of the proceedings, including court costs and sheriffs costs.

On February 26, 2016, Omni filed a motion for summary judgment arguing American’s claims against Omni were prescribed under the Louisiana Uniform Commercial Code (“UCC”). The court heard this matter on May 31, 2016. In its judgment that followed on July 14, 2016, the court agreed that American’s claims against Omni were prescribed and granted summary judgment in favor of Omni, dismissing American’s claims,with prejudice. The court provided the following reasons for its judgment:

The Court finds that the plaintiffs claims against Omni Bank are barred by the one-year prescriptive period for conversion of instruments under La. R.S. 10:3-420.
The Court finds that American Turbine’s 2004 tax return listed $101,111, the exact amounts plaintiff owed to Omni Bank, on “[mjortgages, notes, bonds payable in less than 1 year.” The Court further finds that plaintiffs president, Philip Pawlicki, signed this document on September 12, 2006, more than four years before filing suit.
The Court finds that the plaintiffs admission on the tax return of the amount owed to Omni Bank is evidence that the plaintiff either knew or should have known of the debt to Omni Bank years before filing suit in 2011.
The Court further finds that even if the plaintiffs claims had not prescribed under La. R.S. 10:3-420, they would have prescribed under the provisions of La. R.S. 10:4-406.

On July 25, 2016, American filed a motion for new trial, arguing the court’s judgment of July 14 was contrary to the law and evidence. This matter was heard on September 8, 2016 and denied on September 19, 2016. On American’s motion, the court, on September 26, 2016, designated its judgment of July 14, 2016 as final | ¡¡and appealable in accordance with La. C.C.P. art. 1915(B)(1). American’s appeal followed.

ASSIGNMENTS OF ERROR

On appeal, American raises four assignments of error:

1.The district court erred by dismissing as prescribed Plaintiffs claims for return of funds paid on the unauthorized advances against Plaintiffs line of credit.
2. The district court erred by dismissing as prescribed Plaintiffs claims for return of funds paid on the forged superseding renewal and term notes.
3. The district court erred by dismissing as prescribed Plaintiffs claim for rescission of the Master note and ancillary agreements as relatively null.
4. The district court erred in making findings of fact, resolving genuinely disputed facts in favor of the mover, and basing its summary judgment on these findings.

DISCUSSION

In American’s first, second, and third assignments of error, it argues that the district court erred in granting Omni’s motion for summary judgment and dismissing its claims with prejudice. Though each of these assignments of error addresses a different claim raised by American, all three are subject to the same standard of review here on appeal, which we now set forth before addressing each in turn.

A judgment granting a motion for summary judgment is subject to de novo review. Richthofen v. Medina, 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied, 14-2514 (La. 3/13/15), 161 So.3d 639. Under this standard of review, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Id.

“[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(D)(1). “The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

Here, Omni is the mover who will not bear the burden of proof at trial. Accordingly, in its motion for summary judgment, Omni sought to point out the absence of an essential element of American’s claims: timeliness.

In granting Omni’s motion for summary judgment and finding American’s claims prescribed, the district court did not distinguish amongst the causes of action asserted by American in its petition. Rather, as the courts’ reasons for judgment make clear, the court found all of American’s claims sounded in conversion under the UCC and found them prescribed under La. R.S. 10:3-420 and La. R.S. 10:4-406.

Now on appeal, wé determine the correctness of this ruling!

Assignment of Error One

In American’s first assignment of error, it argues that the district court erred in finding prescribed its action seeking a return of funds disbursed pursuant to unauthorized advance requests on the Omni line of credit. American casts this action as a breach of contract, arguing the advances made pursuant- to Ms. Nicholas’ requests were in violation of the master note because they were not authorized by Mr. Pawlicki. American submits that this breach of contract action is not governed by .the Louisiana UCC, and, therefore, is not subject to the one-j myear prescriptive period under-the UCC, but as a personal action is subject to liberative prescription of ten years under La. C.C. art. 3499.

American bases' its breach of contract action' on the following provision of the master note signed by Mr. Pawlicki on behalf of American on April 12, 2000:

LINE OF CREDIT. This Note evidences a revolving line of credit “master note”. Advances under this Note, as well as directions for payment from Borrower’s accounts, may be requested orally or in writing by Borrower or by an authorized person.' Lender may, but need not, require that all oral requests be confirmed in writing. The following party or parties are authorized to request advances under the line of credit until Lender receives from Borrower at Lender’s address shown above written notice of revocation of their authority: PHILIP M. PAWLICKI, PRESIDENT.

Omni does not specifically respond to this or American’s other assignments of error, but offers general argument that American’s actions are nothing more than claims for instrument conversion that are exclusively governed by the UCC. Omni posits that because American’s damaged essentially flow from the conversion of checks drawn on the Chase account, American’s casting its action- as anything-, but conversion is, an attempt to circumvent the UCC.

It is well settled that “the prescriptive' period applicable to an action is determined by the character of the action disclosed in the pleadings.” Born v. City of Slidell, 16-0136 (La. 10/14/15), 180 So.3d 1227, 1232. At the same time, however, courts do not take at face value parties’ descriptions of actions in their pleadings. Courts must .also look through a pleading’s caption, style, and form to determine its substance and to do substantial justice, to the parties. Metro Riverboat Assocs. v. La. Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So.2d 656, 660. Therefore, considering American’s petition, the facts of this case, and the law, we look to determine the nature of this a’ction and the applicable prescriptive period.

We begin with the Louisiana Supreme Court’s holding that.a written advance request on a line of credit is not governed by Chapter 3 (La. R.S. 10:3-101, et seq.) or Chapter 4 (La. R.S. 10:4-101, et seq.) of the Louisiana UCC. In Par. Nat’l Bank v. Ott, 02-1562 (La. 2/25/03), 841 So.2d 749, a husband and wife, Dr. Ott and Ms. Galla-van, obtained a line of credit for a real estate business of which both were shareholders. Ott, 841 So.2d at 750. The credit line was issued in both their names and advance requests required both their signatures. Id. After five advance requests were made, purportedly by both the husband and wife, Dr. Ott learned that his wife had been signing his name without his authority. Id. at 750-51. He instructed his wife to stop signing his name, but never notified the bank. Id. at 751. After two more advances were made, Dr. Ott notified the bank of the forgeries and refused to pay the debt. Id. The line, of credit went into default and the bank filed suit against both Dr. Ott and Ms. Gallavan. Id. A default judgment was entered against Ms. Gallavan, and the bank pursued its claims against Dr, Ott. Id. These claims were based on theories of ratification or confirmation of the debt, estoppel and breach of a duty to supervise his wife, and failure, to timely notify, the bank of any unauthorized activities. Id.

After a trial on the merits, the district court ruled in favor of Dr. Ott, which the Fourth Circuit affirmed on appeal. See Par. Nat’l Bank v. Ott, 00-0163 (La.App. 4 Cir. 4/17/02), 817 So.2d 295. On certiorari review, however, the Louisiana Supreme Court reversed in part, finding Dr. Ott “liable for the draw requests made... after he knew that unauthorized draw requests had been made on the account and had an opportunity to prevent any future unauthorized draw requests.” Ott, 02-1562, 841 So.2d at 752. In reaching this conclusion, the.court noted “there are no special rules applicable to unauthorized draw, requests such as those found |12in the Louisiana version of the UCC regarding negotiable instruments and bank deposits and collections[.]” Ott at 754. The court further observed:

The written draw requests in this matter are not “instruments” as defined under Louisiana’s version of the UCC, La. R.S. 10:3—104(b), and thus not governed by the Negotiable Instrument provisions of UCC Chapter 3. Further, the draw requests are not “items” and accordingly not governed by the Bank Deposit and Collections provisions of UCC Chapter 4. Specifically, the rules and standards of conduct for banks and depositors are not directly applicable, such as the time limit for when a deposit account owner must notify the drawer bank of an unauthorized check. La. R.S. 10:4-406.

Id. at 754 n.9.

Nevertheless, the court noted that “there are specific rules governing the promissory note signed by [the husband], which is a negotiable instrument governed by Title 10, La. R.S. 10:1-203, which provides ‘every contract or duty within this Title imposes an obligation of good faith in its performance or enforcement.’ ” Ott at 754. The court concluded this obligation of good faith imposed by La. R.S. 10:1-203 required Dr. Ott to notify the bank of the forgeries after he became aware of the unauthorized advance requests. Id. at 755-56. His failure to do so rendered him liable for the latter two advance requests. Id,

The court also considered the exception of prescription, which Dr. Ott had raised for the first time on certiorari review, arguing the bank’s claims had prescribed. Ott at 752. The court rejected this, offering the following analysis:

Dr. Ott argues any such claim related to a “duty” to disclose arises ex delicto, which has a liberative prescription of one year.. Dr. Ott asserts that [the bank] had one year from the date of the last unauthorized draw request, which was January 18, 1995, to file suit. Thus, Dr. Ott concludes that since [the bank] did not file suit until April 1996, its petition is prescribed on its face. In opposition, [the bank] contends the nature of its action arises ex contractu in that Dr. Ott’s duty to disclose- arose from the terms of the loan itself and from the obligation to perform contracts in good faith, which is imposed by | islaw. Under this theory of liability, [the bank] asserts a liberative prescription of five years is applicable according to La. C.C. art. 3498. It'further, asserts the applicable five-year prescriptive period commenced to run when the loan matured on May 26, 1996. Regarding prescription under the facts of this case, La. C.C. art. 3498 provides in pertinent part that “actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a libera-five prescription of five years.” This case arises from a promissory note executed by Dr. Ott and Ms. Gallavan in May 1994, which [the bank] alleged was past due, delinquent and in default. The “causes -of action” alleged to have prescribed by Dr. Ott are not causes of action, rather they are arguments made in response to Dr. Ott’s defense of forgery and unauthorized draw requests. In sum, considering the note was executed in May 1994 and suit for collection was filed in April 1996, the note had not prescribed.

Id. at 752-53 (Footnote added).

In the present ease, inasmuch as American’s' action is based on unauthorized ad-vanee requests, pursuant to Ott, we find this action is not governed by the Louisiana UCC. Therefore, we conclude the district court erred in finding this action was prescribed under La. R.S. 10:3-420 and La. R.S. 10:4-406. Because this action arises from the terms of the promissory note itself, in view of Ott, we also find that this action should be subject to the prescriptive period of five years under La. C.C. art. 3498. We decline to ultimately decide the issue of prescription here because that peremptory exception was not pleaded below or on appeal.

Assignment of Error Two

In American’s second assignment of error, it argues that the district court erred in finding prescribed its claim seeking a return of funds paid on the forged renewal and term notes. American alleges that the promissory notes executed in 2003, 2004, and 2006 to renew the line of credit and the promissory note executed in 2006 to convert the line of credit to a term loan were executed by Ms. Nicholas | ^without Mr. Pawlicki’s authorization and so are relatively null under La. C.C. art. 2031.

In response, Omni’s general argument again is that American’s action is exclusively governed by the UCC because American’s damages essentially flow from the conversion of checks drawn on the Chase account.

As we noted above, “the prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings.” Born, supra. We find American’s cause of action here does not meet the definition of an action for instrument conversion under La. R.S. 10:3-420(a). American’s petition states a cause of action for annulment of the promissory notes on the basis of fraud under La. C.C. arts. 2031 and 2033. As a result, we find the district court erred in finding the prescriptive period of La. R.S. 10:3-420(f) applied to this cause of action.

Next, we determine whether La. R.S. 10:4-406 governs American’s action for annulment here. Captioned “Customer’s duty to discover and report unauthorized signature or alteration!,]” La. R.S. 10:4-406 is premised upon “a public policy in favor of imposing on customers the duty of prompt examination of their bank statements and the notification of banks of forgeries and alterations]].]” Marx v. Whitney Nat'l Bank, 97-3213 (La. 7/8/98), 713 So.2d 1142, 1148 (quotation omitted). This is based on the theory of risk allocation that between the customer and the bank, the customer is the party better suited to detect íraud in the customer’s account. Accordingly, “[p]ursuant to La. R.S. 10:3-406 and 10:4-406, a customer is precluded from having funds paid out on a forged instrument restored to his account if his failure to exercise reasonable care in handling the account, either before or after the forgery, substantially contributed to the loss.” Id. at 1146.

11KNecessarily, the customer’s performance of his duty is conditioned upon the bank’s making account statements available to the customer:

If a bank sends or makes available a statement of account or items pursuant to Subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.

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

Thus, according to the very terms of La. R.S. 10:4-406, and its underlying rationale, we find this statute only governs scenarios in which a bank “sends or makes available to a customer a statement of account showing payment of items for the account!;.]” La. R.S. 10:4-406(a).

Subsection (f) is the provision under which Omni asserted, and the district court agreed, that American’s action had prescribed. It provides in pertinent part:

Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.

La. R.S. 10:4-406(f) (Emphasis added).

The emphasized language in this subsection again makes clear that La. R.S. 10:4-406 and Subsection (f)’s preclusion only apply when account statements are made available to the customer. Unlike checks that appear in monthly account statements, the promissory notes at issue here do not appear in account statements. They reflect an obligation to the bank on a revolving line of credit and a term loan. For this reason, we find the district court erred in finding La. R.S. 10:4-406 governed this cause of action.

hfiWe find American’s action for annulment should be subject to the prescriptive period of La. C.C. art. 2032, which provides: “Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.” For the same reasons noted above in our discussion of American’s first assignment of error, we decline to ultimately decide the issue of prescription here too.

Assignment of Error Three

In American’s third assignment of error, it argues that the district court erred in finding prescribed its claim for rescission of the master note and ancillary agreements as relatively null. American submits in its brief that its “[petition states a claim for declaration of relative nullity of the original Master Note, as well as the ancillary agreements thereto, including the collateral mortgage and guaranty agreement.” Upon our review, we do not find American’s petition states any such claim. Accordingly, we find this assignment of error without merit.

Assignment of Error Four

In American’s fourth assignment of error, it argues that the district court erred in making findings of fact, resolving genuinely disputed facts in favor of the mover, and basing its summary judgment on these findings. In view of our rulings herein, this assignment of error is moot.

DECREE

For the foregoing reasons, we reverse the district court’s July 14, 2016 judgment granting Omni’s motion for summary judgment on the basis of prescription and remand the case for further proceedings consistent with this opinion.

REVERSED; REMANDED

      . This figure is reflected in American's petition.

      . Hurricane Katrina in August 2005 postponed that year's renewal until February 2006.

      . During the period in " question, American • relocated its place of business from Gretna to Kenner.

      . La. C.C. art. 3499 provides: "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

      . La. R.S. 10:3-420(a) provides three definitions of instrument conversion. Omni contends American’s actions are based on the third definition, which provides: "An instrument is converted when. Lit is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.” La. R.S. 10:3-420(a)(iii).

      . La. R.S. 10:1-203 was amended and reenacted as La. R.S. 10:1-304 in 2006. See Acts 2006, No. 533, § 1.
      Prior to 2006, La. R.S. 10:1-203 provided: "Every contract or duty within this Title imposes an obligation of good faith in its performance or enforcement. The standard of good faith performance required under this Title shall be based upon Civil Code Articles 1983, 1996, and 1997.”
      Today, La. R.S. 10:1-304 provides: "Every contract or duty within this Title imposes an obligation of good faith in its performance and enforcement. Under this Section, ‘good faith’ has the meaning with which that term is used in the title on ‘Conventional Obligations or Contracts’ in'the Louisiana Civil Code.”

      . La. C.C. art. 3498 provides: "Actions on instruments, whether negotiable or not, and ' on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. This prescription commences to run from the day payment is exigible.”

      . Pursuant to La. C.C.P. art. 927(B), a "court may not supply the objection of prescription, which shall be specially pleaded.” La. C.C.P. art. 2163 permits an appellate court to consider a peremptory exception "filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.”

      . " ‘Unauthorized signature' means a signature made without actual, implied, or apparent authority. The term includes a forgery.” La. R.S. 10:1-201(41).

      . "La. R.S. 10:3-406 precludes a bank’s customer from asserting a claim when the customer’s conduct before- a forgery substantially contributes to the making of the forgery.” Marx at 1145, (Emphasis original).