
    Katherine DeJean RICHARDSON, Patrick Jude DeJean and Romano Wholesale Liquor Company, Inc. v. CAPITOL ONE, N.A. and Hibernia National Bank and ABC Insurance Company and Diane Fennidy.
    No. 11-CA-30.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Rehearing Granted Nov. 28, 2011.
    Opinion on Rehearing March 13, 2012.
    
      William W. Hall, Attorney at Law, Me-tairie, LA, Patrick Hale DeJean, Attorney at Law, Marrero, LA, Philip E. O’Neill, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.
    Elaine Appleberry, Attorney at Law, Gretna, LA, Deirdre C. McGlinchey, Steve W. Rider, Angelina Christina, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| aPlaintiff/appelIant, Romano Wholesale Liquor Company, Inc. (the company), appeals the trial court’s judgment granting the exception of prescription, thereby dismissing its action for the loss, mismanagement, or conversion of over $1.3 million deposited into its corporate account at Hibernia National Bank, now Capital One N.A. (Capital One). Capital One answered the appeal and has asked this Court to strike the trial court’s finding of fact that the corrected deposit slip, used as the basis for this claim, is a legitimate Hibernia National Bank corrected deposit slip. For the reasons that follow, we affirm the judgment granting the exception of prescription but deny Capital One’s request to overturn the trial court’s finding of fact.

LFacts and Procedural Background

Mr. Marcel DeJean and his wife, Mrs. Felicia Romano DeJean, incorporated Romano Wholesale Liquor Company, Inc. in 1992. The initial report shows Mr. DeJe-an as president and Mrs. DeJean as the secretary/treasurer. Shortly after incorporation, Mrs. DeJean became ill and in need of a companion. Katherine — Mr. and Mrs. DeJean’s daughter — hired Mrs. Marie Bourg Troulliet to care for her mother until her death in 1994. Not long after Mrs. DeJean died, it also became necessary for Mr. DeJean to have a companion. Mrs. Troulliet was subsequently rehired for that purpose. Mr. DeJean moved into Mrs. Troulliet’s home but maintained his separate home nearby.

Mr. DeJean continued to run the company with the help of his two children— Katherine and Patrick. The testimony indicates that Mr. DeJean exclusively handled Romano Wholesale’s banking until 1998 when he developed congestive heart failure and was forced to use either a wheelchair or a cane. From 1998 until his death in 2001, Mrs. Troulliet always accompanied Mr. DeJean on bank visits. Mrs. Troulliet testified that in February of 1999, Mr. DeJean asked her to drive him to his home where he instructed her to go into the attic to retrieve a briefcase. Mrs. Troulliet complied and brought the briefcase to Mr. DeJean. When he opened the briefcase, Mrs. Troulliet saw that it was filled with cash. Mrs. Troulliet asked him how much money was in the briefcase, to which he responded, “it’s over a million.” Mr. DeJean counted the cash and completed a deposit slip for Romano Wholesale’s account. The next morning, Mrs. Troulliet drove Mr. DeJean to the bank to deposit the cash.

| ¡When they arrived at the bank, the branch manager, Ms. Diane Fennidy, the person who traditionally helped Mr. DeJe-an with his banking, took the deposit. Ms. Fennidy took the briefcase into another room unaccompanied by either Mr. DeJe-an or Mrs. Troulliet. Ms. Fennidy returned with a “corrected deposit slip” which showed that the prepared deposit slip was off by $18.13. Nevertheless, the total cash deposit reflected on the corrected deposit slip was in the amount of $1,387,595.13. Mrs. Troulliet testified that Mr. DeJean never told his children about the deposit — Katherine and Patrick corroborated that fact. Mrs. Troulliet further testified that she asked Mr. DeJean whether he intended to tell his children about the deposit. He indicated he might tell his daughter, but that it was “none of their business.” Katherine, Patrick, and Mr. DeJean continued to run the company together until Mr. DeJean’s death in 2001. The testimony indicates that prior to his death, Mr. DeJean continued to handle Romano Wholesale’s banking, including making deposits and reviewing bank statements.

Seven years after Mr. DeJean’s death, Katherine was cleaning out her father’s house in November 2008 when she found the briefcase with the corrected deposit slip from Hibernia National Bank dated February 7, 1999. Katherine checked the bank records and found that the deposit had never been posted to Romano Wholesale’s account. Thereafter, Katherine, Patrick, and Romano Wholesale filed suit against Capital One, ABC Insurance Co., and Ms. Fennidy for conversion of $1,387,595.13. The petition also stated causes of action in breach of fiduciary duty and unjust enrichment.

| fiCapitaI One excepted to the petition on the grounds of prescription and no right and no cause of action. Ms. Fennidy filed similar exceptions. Katherine, Patrick, and Romano Wholesale did not oppose the exception of no cause of action for breach of fiduciary duty and unjust enrichment and subsequently consented to a judgment on those issues with prejudice. Katherine and Patrick also consented to a judgment sustaining Capital One’s exception of no right of action which dismissed their claims with prejudice. Therefore, Romano Wholesale was the only remaining plaintiff and the only cause of action remaining was conversion of loss of the deposit in excess of $1.3 million in cash. The trial on Capital One’s exception of prescription against Romano Wholesale was heard on August 25, 2010. After the hearing, the trial court granted the exception and dismissed Romano Wholesale’s claim.

Romano Wholesale appeals the trial court’s judgment, arguing that the trial court erred in applying the bank statement rule to determine that its claim had prescribed and further erred by not applying the doctrine of contra non valentem. Capital One answered the appeal, seeking to strike the trial court’s finding of fact that the corrected deposit slip, used as the basis for this claim, is a legitimate Hibernia National Bank corrected deposit slip.

Discussion

On the trial of a peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard. Waguespack v. Judge, 04-0137, p. 4 (La.App. 5 Cir. 6/29/04), 877 So.2d 1090, 71092. (citation omitted). However, in the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, and all allegations thereof are accepted as true. Id. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

Romano Wholesale alleges conversion and specifically states that the losses and damages it sustained “were caused by the negligence, fault, acts and omissions of the defendant, Fennidy.” A conversion action against a bank is subject to a one-year liberative prescriptive period. Matthews v. Bank One Corp., 44,818, p. 6 (La.App. 2 Cir. 10/28/09), 25 So.3d 952, 955. Thus, Romano Wholesale’s conversion claim prescribed one year after the alleged conversion occurred. Its suit, however, was not filed until ten years later. Because prescription is evident on the face of the petition, Romano Wholesale bears the burden of proving that its claim has not prescribed.

To meet its burden, Romano Wholesale relies on the doctrine of contra non valen-tem. This principle is based on the equitable notion that no one is required to exercise a right when it is impossible for him or her to do so. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 355 (La.1992). (citation omitted).

Under Louisiana jurisprudence, there are four general situations to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not | «known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. In re Manus, 10-82, p. 4 (La.App. 5 Cir. 5/25/10), 40 So.3d 1128, 1130. (citation omitted). Romano Wholesale argues that situations three and four are applicable here.

Under situation three, Romano Wholesale must show that Capital One engaged in some act which prevented it from availing itself of its cause of action. Under situation four, Romano Wholesale must show that it did not know or could not have reasonably known about the conversion. Romano Wholesale' argues that neither Katherine, Patrick, or Mr. DeJean had reason to believe a conversion occurred because the funds were accepted by Capital One’s branch manager and verified in the corrected deposit slip.

The testimony in this case indicates that Mr. DeJean, as Romano Wholesale’s corporate president, deposited $1,387,595.13 into the corporate account in February of 1999. After making that deposit, Mr. De-Jean continued to run the company, including handling the banking and reviewing the bank statements, until his death in October 2001. The testimony also shows that Mr. DeJean never mentioned the deposit or the fact that the bank statements failed to reflect the deposit to either of his children.

The Louisiana Supreme Court stated, in Martin v. Schwing Lumber & Shingle Co., Inc. (1955), 228 La. 175, 81 So.2d 852, 854, that “a corporation is bound by the knowledge acquired by its .officers or agents relating to its affairs and business.” Hence, a corporation is presumed to know what each officer knows. Therefore, Romano Wholesale was presumably aware that it deposited $1,387,595.13 into its corporate account and that such deposit was never reflected on its bank statement.

|9We, therefore, find that the doctrine of contra non valentem is inapplicable here. Capitol One did not perform any act that would have prevented Romano Wholesale from availing itself of its cause of action. In fact, Capitol One took proactive measures which would have allowed Romano Wholesale to discover the missing deposit when it continued to mail monthly bank statements to its customer. Therefore, this assignment is without merit.

Romano Wholesale also argues that the trial, court erred in relying on the bank statement rule to find its claim had prescribed. The bank statement rule applies to unauthorized signatures or alterations from a customer’s account. See UCC 4-406. That is not what occurred here. To the extent that the bank statement rule was implicated, the trial court erred. It is unclear, however, that that is what actually occurred here. The judgment seems to say that Capital One did not attempt to conceal any wrongdoing and had Mr. De-Jean reviewed the monthly bank statements, the missing deposit could have been easily discovered.

Finally, Capital One has asked this Court to strike the following factual finding the trial court made:

Marcel DeJean, with the assistance of Mary Bourg, made a cash deposit into the Company’s bank account at Hibernia National Bank on Saturday, February 6, 1999, in the sum of $1,387,595.13, and obtained a legitimate Hibernia National Bank corrected deposit slip for that sum.

The Louisiana Supreme Court, in Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98, set forth the standard of review for a trial court’s factual finding:

[t]he appropriate standard for appellate review of factual determinations is the manifest error — clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety, (citation omitted) Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous, (citation omitted).

ImThe record supports the trial court’s finding that the deposit slip was a legitimate Hibernia National Bank corrected deposit slip. Ms. Barbara Decorte, Hibernia’s assistant branch manager in 1999, testified at the hearing and identified the corrected deposit slip as an authentic document. She further testified that she knew Mr. DeJean as a regular customer. Mrs. Troulliet testified that she saw the deposit slip in February 1999, and while she could not be certain, she stated that it looked like the one Mr. DeJean received on the day of the deposit.

Given the testimony, we find that the trial court’s factual finding that the document was a legitimate Hibernia National Bank corrected deposit slip was not manifestly erroneous.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.

EDWARDS, C.J., dissents.

EDWARDS, C.J.,

dissents.

hi disagree, in part, with the majority opinion in that I find merit in the company’s argument that the trial court incorrectly relied on the “bank statement defense” set forth in Louisiana’s Uniform Commercial Code, specifically La. R.S. KM-JOdic), which requires a bank customer to exercise reasonable promptness in examining a bank statement.

It has been well established that a bank deposit creates a creditor-debtor relationship which is contractual in nature. The articles dealing with deposits are not applicable because a bank deposit does not involve the restoration of the identical object tendered. Furthermore, an essential condition of a deposit is that the thing deposited can be identified.

Mr. DeJean relied on a valid deposit slip issued to him by the bank. I believe that the obligation to check the bank statements relied upon by the bank does not apply to deposits. As the creditor in the contractual relationship, the company had the right to demand the payment of the amount of the deposit at any time. Because the bank, as the debtor in this relationship, refused to pay out the 12amount of the deposit to the order of the company on the first request made in 2008, this action was timely brought.

I would reverse the trial court on the issue of prescription.

ON REHEARING

FREDERICKA HOMBERG WICKER, Judge.

laThis case is before the Court on the plaintiff/appellant’s, Romano Wholesale Liquor Company, Inc. (the “company”), Application for Rehearing. In our original opinion dated June 14, 2011, we affirmed the trial court’s judgment wherein it found that the company’s claim against the defendant/appellee, Capital One, N.A., had prescribed. Approximately one month after rendering our opinion, however, the company filed its Application for Rehearing. The application alleged that on July 13, 2011, Patrick Jude DeJean discovered a green money bag in a- fifing cabinet at the company’s main office that contained a letter from Ms. Diane Fennidy which explained what happened to the deposit Marcel DeJean made on February 7, 1999. The company contends that the letter constitutes newly |4discovered evidence and requests that this Court remand the matter to the district court. For the reasons discussed below, we vacate our opinion rendered on June 14, 2011, dismiss the appeal, and remand this matter to the district court for a hearing to determine whether the letter constitutes newly discovered evidence and for other proceedings as necessary.

In its September 1, 2010 judgment, the district court addressed Capitol One’s Exceptions of Prescription, No Right of Action and No Cause of Action which had come before the court for hearing on August 25, 2010. In that judgment, the district court specifically ruled upon the exception of prescription but did not to rule upon the exceptions of no right of action and no cause of action. In fight of the district court’s ruling on the exception of prescription, the exceptions of no right and no cause of action presumably became moot. The trial court’s September 1, 2010 judgment states “[t]his matter came before the court on defendant’s Exceptions of No Right of Action, No Cause of Action and Prescription....” (emphasis added). The judgment further stated, “plaintiffs do not oppose defendants’ exceptions of no cause and no right of action.” Although the judgment recognizes that the plaintiffs did not oppose the exceptions of no cause and no right of action, the decretal language is silent on the issue. The judgment speaks only of the exception of prescription. Specifically, it provides, “IT IS ORDERED ADJUDGED AND DECREED that the defendant’s Exception of Prescription is hereby maintained, dismissing plaintiffs petition.” The only trial court action complained of on this appeal was the grant of the exception of prescription.

On rehearing, however, the company argues that the letter, which it alleges is newly discovered evidence, calls into question our previous determination that the doctrine of contra non valentem is inapplicable in this case because the company was presumably aware that $1,387,595.13 was deposited into its | .^corporate account. Appellant also argues that the allegedly newly discovered evidence establishes that Katherine DeJean Richardson and Patrick Jude DeJean have a right of action in this matter. We note, however, that neither Katherine DeJean Richardson nor Patrick Jude DeJean were parties to this appeal.

Generally, courts of appeal are constrained to review only those issues which were submitted to the trial court. See Uniform Rules — Courts of Appeal, Rule 1-3. Moreover, courts of appeal are further constrained to consider only those documents which were offered, accepted, and introduced into evidence at the trial level and have become a part of the record. Jackson v. United Serv. Auto. Ass’n Cas. Ins. Co., 08-0333 (La.App. 5 Cir. 10/28/08), 1 So.3d 512, 515 (“evidence not properly and officially offered and introduced cannot be considered on appeal, even if the evidence is physically placed in the record.”). Obviously, the Diane Fennidy letter meets neither requirement because it was not reviewed by the trial court nor entered into evidence below. So, before the contents of the letter can be considered by this court, it must be determined whether, as a matter of law, the document constitutes “newly discovered evidence.” Furthermore, the letter may not be considered here unless it becomes part of the record lodged. In the first instance, the trial court should make the determination whether the letter constitutes newly discovered evidence and then whether it should be admitted into evidence.

Considering that the trial court did not rule on the exceptions of no right and no cause of action, those exceptions are arguably still pending before the district court. Thus, any ruling by this Court regarding the letter’s status as “newly discovered evidence” may serve as an advisory opinion. Such opinions are implicitly prohibited by the Louisiana Constitution. See State in Interest of C.W., 97-1229 (La.App. 5 Cir. 4/13/98), 712 So.2d 245, 246. Therefore, we vacate our |fiopinion rendered on June 14, 2011, dismiss the appeal and remand the matter to the district court for a hearing on the question of whether the letter constitutes newly discovered evidence and for other proceedings consistent with this opinion. We reserve the parties right to re-file the appeal thereafter.

JUNE 14, 2011 OPINION VACATED; APPEAL DISMISSED; CASE REMANDED TO THE DISTRICT COURT FOR HEARING AND OTHER PROCEEDINGS AS NECESSARY. 
      
      . In 2001, a federal indictment was issued against Diane Fennidy, charging her with bank fraud that occurred between January of 1999 and February of 2001. The indictment charges that Ms. Fennidy prepared and submitted fraudulent loan documents, including applications, promissory notes, assignment of deposit account forms and boarding data that totaled $257,641 in losses to Hibernia Bank. Ms. Fennidy pled guilty to the charges on January 28, 2004.
     
      
      . 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.
     
      
      . Miller v. Bank of New Orleans, 426 So.2d 1382 (La.App. 4 Cir.1983).
     
      
      . Id.
      
     
      
      . I agree with the analysis and conclusion in the majority opinion that the record supports the trial court’s finding that the deposit slip was a legitimate Hibernia National Bank corrected deposit slip.
     