Ohle v. Uhalt

213 So. 3d 1, 2016 La.App. 4 Cir. 0569, 2017 WL 431778, 2017 La. App. LEXIS 132
CourtLouisiana Court of Appeal
DecidedFebruary 1, 2017
DocketNO. 2016-CA-0569
StatusPublished
Cited by10 cases

This text of 213 So. 3d 1 (Ohle v. Uhalt) 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
Ohle v. Uhalt, 213 So. 3d 1, 2016 La.App. 4 Cir. 0569, 2017 WL 431778, 2017 La. App. LEXIS 132 (La. Ct. App. 2017).

Opinion

Judge Rosemary Ledet

11 This is a damages suit, based on an alleged fraudulent scheme, against four defendants. From the trial court’s judgment granting all four defendants’ peremptory exceptions of prescription and one defendant’s declinatory exception of lack of personal jurisdiction, the plaintiff appeals. For the reasons that follow, we affirm the trial court’s judgment in all respects except for the granting of the peremptory exception of prescription as to one of the defendants. We remand with instructions to conduct an evidentiary hearing on the prescription exception as to that one defendant.

FACTUAL AND PROCEDURAL BACKGROUND

On December 29, 2014, the plaintiff, John Brewster Ohle, III, commenced this suit against the following four defendants:

1. The Ecetra N. Ames 1999 Charitable Remainder Unitrust (the “Ames Trust”)—a trust created in and ad[4]*4ministered under the laws of the State of Louisiana appearing through its current trustee, Steven O. Medo, Jr.;1
\>2. Anthony Ames—a resident of Atlanta, Georgia; Eeetra Ames’ husband; and an income beneficiary of the Ames Trust;
3. Hugh Uhalt—Mrs. Ames’ son and the individual who purported to have a power of attorney for Mrs. Ames; and
4. John Wogan—the successor trustee of the Ames Trust following Mr. Ohle’s resignation as trustee.

In his petition, Mr. Ohle asserts the following three theories of liability: (i) fraud, (ii) conspiracy to defraud, and (iii) breach of contract. The gist of the allegations in his petition is that the defendants engaged in a fraudulent scheme to accomplish the following three results: [i] unlawfully remove millions of dollars from the Ames Trust; [ii] insert Mr. Wogan as successor trustee; and [iii] wrongfully recover monies through “unlawful forfeiture/restitution orders.” Mr. Ohle averred that “[t]he acts, omissions, misrepresentations and concealments of the defendants and [Mrs.] Cetie Ames caused and/or contributed to [Mr.] Ohle losing valuable property rights and to being wrongfully criminally charged, tried, convicted, imprisoned, fined, and defamed, both professional and personally.”2

Although the alleged actions on which his claims were based occurred between 2002 and 2011, Mr. Ohle averred in his petition that he did not discover the fraudulent scheme until conducting discovery in other matters in 2014. He further averred that the alleged fraudulent scheme had continued and was aided and abetted by the United States Attorney for the Southern District of New York. Mr. Ohle still further averred that the defendants’ acts, omissions, and fraudulent scheme constituted a breach of contracts and agreements, including the confidentiality provisions of the Settlement Agreement among him, Mrs. Ames, [aMr. Ames, and the Ames Trust that was entered into on October 14, 2003. The gist of his breach of contract claim is that the defendants have discussed facts subject to the confidentiality provision of the Settlement Agreement with numerous third parties thereby breaching that provision.

In response to the petition, all four defendants filed a peremptory exception of prescription; Mr. Ames additionally filed a declinatory exception of lack of subject matter jurisdiction.3 The trial court, as noted, granted all four defendants’ peremptory exceptions of prescription and Mr. Ames’ declinatory exception of lack of personal jurisdiction. This appeal followed.

DISCUSSION

On appeal, Mr. Ohle asserts the following three assignments of error:

1. The district court erred in finding that the breach of contract claims had prescribed,
[5]*52. The district court erred in finding the breach of contract claims only applicable to two of the four defendants—Mr. Ames and the Ames Trust.
3. The district court erred in finding no personal jurisdiction as to Mr. Ames.

We divide our analysis into two parts: prescription and personal jurisdiction over Mr. Ames. We first address the personal jurisdiction issue.

Personal jurisdiction

When reviewing a trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction, an appellate court applies a de novo standard. Winston v. Millaud, 05-0338, p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 149-50 (noting that “jurisdiction itself is a question of law subject to de novo review.”); Walker v. Super 8 Motels, Inc., 04-2206, p. 4 (La.App. 4 Cir. 12/7/05), 921 So.2d 983, 986. In de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La. 1991), the Louisiana Supreme Court subdivided the method of proving an exception of lack of personal jurisdiction into two categories—with a contradictory hearing and without such a hearing. Explaining these categories, the Supreme Court stated the following:

If there had been a contradictory evi-dentiary hearing, plaintiff would have had to prove facts in support of her showing that jurisdiction was proper by a preponderance of the evidence. However, under constitutional and codal principles, when the trial court decides the jurisdictional issue without a contradictory evidentiary hearing, as it has done in the present case, the burden of the non-moving party is relatively slight and allegations of the complaint and all reasonable inferences from the record are to be drawn in favor of the non-moving party.

de Reyes, 586 So.2d at 109 (citing La. C.C.P. arts. 925, 930; and American Greetings Corp. v. Cohn, 839 F.2d 1164 (6th Cir. 1988)).4

A contradictory hearing, for purposes of an exception of lack of personal jurisdiction, is defined based upon “the methods of proof set out in de Reyes and its progeny” as requiring live testimony be taken. Jacobsen v. Asbestos Corp. Ltd., 12-655, pp. 6-7 (La.App. 5 Cir. 5/30/13), 119 So.3d 770, 775-76 (noting that “a contradictory hearing is not considered to have taken place unless live testimony is taken.”). Thus, a contradictory hearing requires more than simply oral argument on the exception of lack of personal jurisdiction.

[^Louisiana courts routinely have decided exceptions of lack of personal jurisdiction without a contradictory hearing based solely on written documentation, including the petition and affidavits.5 In so doing, [6]*6Louisiana courts have accepted the allegations in the petition as true “except as controverted by the defendant’s affidavit.” Lifecare Hospitals, Inc. v. B & W Quality Growers, Inc., 39,065, p. 8 (La.App. 2 Cir. 10/27/04), 887 So.2d 624, 630.

A state court’s authority to exercise personal jurisdiction over a non-resident defendant is governed by the Louisiana Long-Arm Statute, La. R.S. 13:3201 (the “LAS”).6 The limits of the LAS and constitutional due process are coextensive. Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 792 (La. 1987); La. R.S.

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213 So. 3d 1, 2016 La.App. 4 Cir. 0569, 2017 WL 431778, 2017 La. App. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohle-v-uhalt-lactapp-2017.