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NOT DESIGNATED FOR PUBLICATION

MALCOLM PERKINS VERSUS DISCOUNT BAIL BONDS, ET AL. OR BAIL BONDS UNLIMITED, INC.

* * *

NO. 2010-CA-0212 COURT OF APPEAL FOURTH CIRCUIT

* STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2001-15501, DIVISION "K-5" Honorable Herbert Cade, Judge ****** Charles R. Jones Judge ****** (Court composed of Judge Charles R. Jones, Judge James F. McKay, III, and Judge David S. Gorbaty)

Malcolm Perkins, #105935 ELAYN HUNT CORRECTIONAL CENTER P. O. Box 174 Unit 2, Fox 4-C St. Gabriel, LA 70776

IN PROPER PERSON, PLAINTIFF/APPELLANT

Angela G. Sprague 7534 Canal Boulevard New Orleans, LA 70124

COUNSEL FOR DEFENDANT/APPELLEE, DISCOUNT BAIL BONDS

AFFIRMED

The Appellant, Malcolm Perkins, appeals the district court judgment granting the motion for summary judgment in favor of defendants, Discount Bail Bonds and Bail Bonds Unlimited, Inc. (collectively "Bail Bonds").1 reasons set forth below, we affirm. The facts in this matter are not in dispute. Mr. Perkins was arrested in Orleans Parish on December 7, 1999. On December 9, 1999, Mr. Perkins' brother, Marlon Perkins, paid Bail Bonds $750.00 (with a balance due of $789.00) for a bond to be posted on behalf of Mr. Perkins. Bail Bonds posted the bond at the Orleans Parish Prison on December 9, 2009. However, Mr. Perkins was not released due to a parole hold from a previous matter. Mr. Perkins admits that he was not aware of the parole hold at the time. Bail Bonds refused Mr. Perkins' demand for a refund of the $750.00 paid on the bond. In response, Mr. Perkins filed the present breach of contract action against Bail Bonds seeking a return of the funds plus interest and costs. Mr. Perkins also asserts fraud and ill practice2 on the part of Bail Bonds for entering
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For the

Bail Bonds Unlimited, Inc. is the parent company of Discount Bail Bonds. Discount Bail Bonds is no longer in business. 2 The record reveals that Mr. Perkins alleged fraud and ill practice in a pleading titled Plaintiff's Opposition to the Defendants' Answer to Plaintiff's Petition.

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into a bond agreement with a non-bondable person, accepting monies therefrom, and refusing to refund said monies. Mr. Perkins filed a motion for summary judgment. The motion was denied, in Mr. Perkins' absence, on August 6, 2004. Mr. Perkins re-filed his motion, and Bail Bonds filed their own motion for summary judgment. The matters were heard by the trial court on November 6, 2009, where Mr. Perkins appeared in proper person to argue his case. In support of its motion for summary judgment, Bail Bonds submitted the affidavit of Blair Boutee, the supervisor of Bail Bonds in 1999, wherein Mr. Boutee stated: 1) His office/agents had no means of knowing if a customer was subject to a hold; 2) His office/agents did not know that Mr. Perkins was subject to a parole hold; 3) Once a bond is posted, the sheriff's office will not return the bond regardless of any hold; and 4) Once a bond is posted, Bail Bonds remains responsible for all expenses associated with the bond, i.e., costs due the insurer, state tax expenses, and fees required by the sheriff's office. In support of his claim, Mr. Perkins relied on records from Bail Bonds showing that the $750.00 was paid toward the bond. Judgment was rendered on November 6, 2009, denying Mr. Perkins' motion for summary judgment and granting summary judgment in favor of Bail Bonds. The trial court concluded that as a matter of law, Mr. Perkins was not entitled to the return of the funds. This timely devolutive appeal followed. Appellate courts review the grant of a summary judgment motion de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Samaha v. Rau, 2007-1726, p. 3-4 (La. 2/26/08), 977 So.2d 880, 882. According to that standard, summary judgment shall be granted if the
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pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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 B. In a motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966 C(2). "However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. "Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." Id.; Samaha, 2007-1726 at p. 5, 977 So.2d at 883. On appeal, Mr. Perkins argues that genuine issues of material fact exist as to whether Bail Bonds knew or should have known of the parole hold at the time the contract was made and money was accepted. Mr. Perkins further argues that questions of fact exist as to whether Bail Bonds' actions constituted fraud and ill practice. Bail Bonds submits that the district court correctly granted summary dismissal considering the fact that Mr. Perkins introduced no evidence of fraud or ill practice and presented no law to support his argument that Bail Bonds had a legal duty to discover the parole hold. We agree.

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Our de novo review of the record reveals that Mr. Perkins failed to contradict Mr. Boutee's affidavit, which stated that his office was unaware of the parole hold when the bond was posted. Mr. Perkins presented no evidence in support of his allegation that Bail Bonds committed fraud or ill practice. Moreover, we find, as did the district court, that under the circumstances, Bail Bonds was not legally obligated to return the funds after the bond was posted.

DECREE: For the foregoing reasons, we find no error on the part of the district court. Thus, the judgment of the district court is affirmed.

AFFIRMED

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