Richardson v. Capitol One, N.A.

91 So. 3d 304, 2011 WL 2328017
CourtLouisiana Court of Appeal
DecidedJune 14, 2011
DocketNo. 11-CA-30
StatusPublished
Cited by1 cases

This text of 91 So. 3d 304 (Richardson v. Capitol One, 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
Richardson v. Capitol One, N.A., 91 So. 3d 304, 2011 WL 2328017 (La. Ct. App. 2011).

Opinions

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 [306]*306until 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,1 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 [307]*307of 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).

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Related

Richardson v. Capitol One, N.A.
258 So. 3d 208 (Louisiana Court of Appeal, 2018)

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Bluebook (online)
91 So. 3d 304, 2011 WL 2328017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-capitol-one-na-lactapp-2011.