Ortego v. Ortego

425 So. 2d 1292
CourtLouisiana Court of Appeal
DecidedDecember 22, 1982
Docket82-350
StatusPublished
Cited by50 cases

This text of 425 So. 2d 1292 (Ortego v. Ortego) 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
Ortego v. Ortego, 425 So. 2d 1292 (La. Ct. App. 1982).

Opinion

425 So.2d 1292 (1982)

Debra A. ORTEGO, Plaintiff-Appellant,
v.
Helen ORTEGO, and Avoyelles Trust & Savings Bank, Defendants-Appellees.

No. 82-350.

Court of Appeal of Louisiana, Third Circuit.

December 22, 1982.
Writ Denied February 23, 1983.

*1293 Preston N. Aucoin and Jules R. Ashlock, Ville Platte, for plaintiff-appellant.

Nelson M. Lee and Dan McKay and John A. Boatner, Jr., Bunkie, for defendants-appellees.

Before CULPEPPER, DOUCET and YELVERTON, JJ.

DOUCET, Judge.

Plaintiff-Appellant, Debra A. Ortego, brought suit against defendant Helen Ortego and defendant-appellee, Avoyelles Trust & Savings Bank, in tort for conversion, damages and attorney's fees. Helen Ortego answered requesting a jury trial. The bank responded with a Motion for Summary Judgment founded upon a written authorization from Debra Ortego instructing the bank to accept the signature of Helen Ortego on her checking account. The district judge ad hoc granted the summary judgment. Plaintiff appeals. We reverse and remand.

The facts giving rise to this suit occurred after the death of Steven C. Ortego, husband to the plaintiff and son of defendant, Helen Ortego. Mr. Ortego was killed in an automobile accident on October 7, 1981. Prior to his death, Steven Ortego had purchased several insurance policies, designating his wife, plaintiff herein, as beneficiary. It is the proceeds of these policies and the parties' actions relative thereto that are the subject of the present litigation.

Following her husband's death, plaintiff decided to move from Bunkie to Sulphur, Louisiana. Before she could leave, however, arrangements had to be made to settle outstanding debts. Accordingly, she paid a nocturnal visit to the home of an employee of defendant bank, Mrs. Sadie Roy, accompanied by her mother-in-law, also named defendant herein, whereat the bank employee executed a handwritten authorization which reads as follows:

*1294

The signed authorization was subsequently filed at defendant bank. In furtherance of this authorization, several checks were signed in blank by plaintiff and left with Mrs. Helen Ortego. Mrs. Ortego, mother of decedent, was to pay off the trailer in which plaintiff and her late husband had lived.

Thereafter, checks representing proceeds of life insurance policies with decedent's wife named as beneficiary, were mailed to plaintiff in care of Mrs. Helen Ortego. Mrs. Ortego deposited these checks, two in the sum of $5,041.85 each and one for $50,000, on January 11 and 19, 1982, respectively, to the account of plaintiff. Immediately after the latter aforesaid deposit, Mrs. Helen Ortego drew a check in the sum of $50,000, payable to herself, on one of the checks signed in blank by plaintiff. Apparently, this is not what plaintiff had intended as the suit herein was filed shortly after it was discovered that the insurance proceeds had been deposited, then drained from plaintiff's account.[1]

*1295 "Defendant bank responded to plaintiff's petition with a motion for summary judgment supported by the affidavits of bank personnel, Mr. J.L. Cecil, Mrs. Sadie P. Roy, and Mr. Alfred Young. Mr. Cecil, executive vice-president and cashier, stated in an affidavit that he had personal knowledge of signature cards of Debra A. Ortego and Helen Ortego, and the written statement, dated January 7, 1982, signed by Debra Ortego, instructing the bank to accept the signature of Helen Ortego on the checking account of Debra Ortego. Additionally, he examined the following documents and ascribed their signature to plaintiff:

1) Aetna Life & Casualty Company Draft No. 1789624087 payable to Debra A. Ortego in the amount of $5,041.85 dated December 3, 1981;
2) Aetna Life & Casualty Company Draft No. 1789624086 payable to Debra A. Ortego in the amount of $5,041.85 dated December 3, 1981;
3) `Deposit Ticket' on account of Debra A. Ortego evidencing deposit of Aetna Life & Casualty Company Draft Nos. *1296 XXXXXXXXXX and XXXXXXXXXX in the aggregate sum of $10,083.70 to the account of Debra A. Ortego dated January 11, 1982, which was signed by the said Debra A. Ortego;
4) Avoyelles Trust & Savings Bank Check No. 153 drawn against the account of Debra A. Ortego dated Jan. 11, 1982, payable to the order of Helen Ortego in the amount of $10,083.70 which was signed by the said Debra A. Ortego as maker;
5) INA Draft No. LG 03316481 payable to Debra A. Ortego, c/o Helen Ortego in the amount of $50,000.00 dated Jan. 11, 1982;
6) `Deposit Ticket' on account of Debra A. Ortego evidencing deposit of INA Draft No. LG 03316481 in the sum of $50,000.00 to the account of Debra A. Ortego dated Jan. 19, 1982, which was signed by the said Debra A. Ortego; and
7) Avoyelles Trust & Savings Bank Check No. 154 drawn against the account of Debra A. Ortego dated Jan. 19, 1982, payable to the order of Helen Ortego in the amount of $50,000.00 which was signed by the said Debra A. Ortego as maker."

Cecil considered all signatures to be genuine. His affidavit further states that, in view of facts known to him, the bank at all times acted in good faith and in accordance with its reasonable standards and policies and the intent of plaintiff was to allow such transactions. Affiant also stated his knowledge of LSA-R.S. 10:3-401 through 10:3-407, relative to completion of unauthorized completion of documents, and that the negligence of plaintiff in signing blank checks to Helen Ortego "contributed substantially to the material alterations thereof and/or unauthorized use thereof by Helen Ortego." His affidavit concludes that plaintiff is precluded as a matter of law from asserting her claim against Avoyelles Trust and Savings Bank.

Sadie Roy's affidavit recalls the Ortegos' nocturnal visit to her house on January 7, 1982 whereat she executed the handwritten authorization allowing Helen Ortego to sign on the checking account of Debra Ortego and that Debra Ortego signed the instrument. She further recalls Debra Ortego delivering an unknown quantity of checks, signed in blank to her mother-in-law, while the two were still at her house and her response expressing the dangers of same. Mrs. Roy filed the authorization upon going to work the next day.

Mr. Young's affidavit recounted Helen Ortego transacting banking business on behalf of her son both before and after his death and specifically recalled her depositing checks involved herein.

Subsequent to her petition and the filing of the affidavits hereinabove, plaintiff filed an affidavit wherein she reasserted the limited scope of Helen Ortego's authority and that she had no intention of granting her permission to deal with the insurance proceeds involved. Plaintiff further asserted that she had established a new account in Sulphur where she would have cashed the insurance checks which she was to receive. According to her affidavit Helen Ortego's authority, as expressed at the nocturnal visit with Mrs. Roy, was limited to drawing on the account for the limited purpose of paying off remaining bills and did not extend to depositing checks to her account. Plaintiff maintained that the power of Helen Ortego to write checks was confined to the bank account as it was on January 7, 1982.

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Bluebook (online)
425 So. 2d 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortego-v-ortego-lactapp-1982.