Costello v. Citibank (South Dakota), N.A.

48 So. 3d 1108, 2010 La. App. LEXIS 1292, 2010 WL 3766840
CourtLouisiana Court of Appeal
DecidedSeptember 29, 2010
DocketNo. 45,518-CA
StatusPublished
Cited by6 cases

This text of 48 So. 3d 1108 (Costello v. Citibank (South Dakota), N.A.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Costello v. Citibank (South Dakota), N.A., 48 So. 3d 1108, 2010 La. App. LEXIS 1292, 2010 WL 3766840 (La. Ct. App. 2010).

Opinion

BROWN, Chief Judge.

| jPlaintiffs, Charles M. and Carol Costello, doing business as Charles M. Costello Farms, sued to recoup from defendant banks and creditors funds stolen from plaintiffs by their employee/bookkeeper, who wrote company checks to pay her personal debts. The trial court found that plaintiffs’ action against defendant banks had prescribed and sustained defendants’ exceptions of prescription. Plaintiffs appealed. We affirm.

Facts and Procedural History

From 1971 to November 11, 2006, Maria LaForge worked as the bookkeeper for the Costellos and their farming operations. During this time, LaForge became close to the Costello family, and she was entrusted with control of their financial matters. In the late 1970s or early 1980s Charles Costello signed the necessary documents authorizing LaForge to sign cheeks drawn on his farm account which he maintained at Capital One Bank, N.A.1 Capital One sent Costello monthly bank statements showing all deposits and withdrawals, together with copies of the checks issued. At some point, Costello began to have all of his bank statements sent directly to the farm office. Later, he allowed LaForge to have the monthly statements sent to her home in Kilbourne. Costello acknowledged that he delegated everything concerning his bank account to LaForge. She was authorized to issue and sign checks, post all checks and deposits, receive and reconcile all bank statements, and perform any and all other bookkeeping and accounting functions.

|;>On or about November 8, 2006, Costello visited the Capital One branch in Bas-trop. While there, he noticed images on the teller’s computer monitor of checks drawn from his farm account that were payable to creditors with which he had no account. He obtained copies of these checks and confronted LaForge the following day. LaForge admitted that she had written and signed checks on the Costello farm account to pay her bills. Two days later, LaForge committed suicide.

Following LaForge’s death, Costello located the bank statements that Capital One had sent him and had his CPA review those statements. The CPA determined that from 2000 to 2006 LaForge had embezzled or converted funds in Costello’s account in the amount of approximately $280,437.33. In testimony, Charles Costello acknowledged that had he examined the bank statements, he would have realized that checks had been issued to entities which were not his creditors. Also, he admitted that he had given LaForge the opportunity to misappropriate funds from his account by allowing her to receive and have exclusive possession of his bank statements from Capital One.

The present suit was filed on October 2, 2007.2 The Costellos sought to recover from LaForge’s creditors/payees the amount of the checks that they received. [1111]*1111They also sought recovery from Capital One for the unauthorized payment of these checks drawn on the Costello farm account. Defendants Citibank (South Dakota) N.A., Citifinancial, Inc., and Regions IsBank Inc., filed exceptions of prescription. Capital One also filed an exception of prescription. Defendants argued that plaintiffs’ claims were tort claims that are subject to a one-year liberative prescriptive period. Plaintiffs insisted that their claims were governed by the Uniform Fiduciaries Law, which does not set a prescriptive period for actions brought under it. La. R.S. 9:3801, et seq. Because there is no prescriptive period set under the Uniform Fiduciaries Law, plaintiffs argued that the prescriptive period of ten years as provided by La. C.C. art. 3499 is appropriate. La. C.C. art. 3499 states that “unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years-” Plaintiffs argued alternatively that even if the one-year liberative prescription applies, then the discovery rule under contra non valen-tón would suspend the running of prescription. They also argued a continuing tort theory, i.e., that the banks should not be able to avoid their misconduct when they never stopped engaging in it.

The trial court granted the exceptions and dismissed all prescribed claims against defendants Citibank, N.A., Citifinancial, Inc., Regions Bank Inc., and Capital One Bank, N.A. The other named defendants have either settled or taken no action and are not involved in this appeal. In response to plaintiffs’ request for written reasons for judgment, the trial court, on December 17, 2009, entered per curiam a order stating in part that:

... all of the plaintiffs’ claims or causes of action, however they may be classified, are subject to a one-year liberative prescription under the applicable statutes and the Court finds no basis under the circumstances to deny the peremptory exceptions. With respect to the issue of notice and the running or accrual of prescription, it is again the plaintiffs’ breach of |4duty with respect to review and reconciliation of the statements of the accounts in question and the accompanying failure to adequately supervise the book keeper and thereby timely identify unauthorized transactions which is the focal point of the Court’s analysis. The plaintiffs would have had notice and in fact are charged with having been reasonably notified at the time it became incumbent upon them to review and reconcile the statements in question.

Plaintiffs filed a timely appeal.

Discussion

Citibank, Citifinancial and Regions Bank

Plaintiffs alleged that LaForge issued some 618 checks to the different defendants. Specifically, plaintiffs alleged that Citibank, Citifinancial, and Regions Bank were personal creditors of LaForge and accepted checks written by her on the Costello farm account with actual or constructive knowledge of LaForge’s breach of her fiduciary duty.

It is clear that LaForge was guilty of conversion. A conversion claim is delictual and subject to a one-year prescriptive period. La. R.S. 10:3-420(0.

The Uniform Fiduciaries Law, La. R.S. 9:3805, provides:

If a check or other bill of exchange is drawn by a fiduciary as such or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, the payee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in drawing or de[1112]*1112livering the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. If, however, such instrument is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of, or as security for, a personal debt of the fiduciary, to the actual knowledge of the creditor, or is drawn and delivered in any transaction known by the payee to be for the personal benefit of the fiduciary, the creditor or other payee is liable to the principal if the fiduciary in fact commits a breach of his | ¿obligation as fiduciary in drawing or delivering the instrument. (Emphasis added).

Louisiana courts have examined claims similar to those made by plaintiffs and have applied a one-year liberative prescription. See Quality Gas Products v. Bank One Corporation, 03-1859 (La.App.

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Bluebook (online)
48 So. 3d 1108, 2010 La. App. LEXIS 1292, 2010 WL 3766840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costello-v-citibank-south-dakota-na-lactapp-2010.