FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-10835,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS
B. Ohle, III PLAINTIFF/APPELLANT IN PROPER PERSON.
Stephen H. Kupperman Joshua O. Cox BARRASSO USDIN KUPPERMAN
FREEMAN & SARVER, LLC COUNSEL FOR DEFENDANTS/APPELLEES.
composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge
ROSEMARY LEDET, JUDGE
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.
AND PROCEDURAL BACKGROUND
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 administered
under the laws of the State of Louisiana appearing through
its current trustee, Steven O. Medo, Jr.;
2. Anthony Ames-a resident of Atlanta, Georgia; Ecetra
Ames' husband; and an income beneficiary of the Ames
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.
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
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, Mr. 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
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. 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.
appeal, Mr. Ohle asserts the following three assignments of
1. The district court erred in finding that the breach of
contract claims had prescribed.
2. 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.
divide our analysis into two parts: prescription and personal
jurisdiction over Mr. Ames. We first address the personal
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 evidentiary 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)).
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.
courts routinely have decided exceptions of lack of personal
jurisdiction without a contradictory hearing based solely on
written documentation, including the petition and
affidavits. In so doing, Louisiana 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
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"). 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. 13:3201(B)(allowing for Louisiana courts to
exercise personal jurisdiction over nonresident defendants
"on any basis consistent with the constitution of this
state and the Constitution of the United States.").
exercise of personal jurisdiction over a non-resident
defendant comports with due process when the following two
prongs are satisfied: (i) the defendant has certain
"minimum contacts" with the forum state; and (ii)
as a result of those contacts, the maintenance of the suit
would not offend traditional notions of fair play and
substantial justice. Dahmes v. Champagne Elevators,
Inc., 03-0807, 03-0983, pp. 4-5 (La.App. 4 Cir. 3/3/04),
869 So.2d 904, 908 (citing International Shoe Co. v.
State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90
L.Ed. 95 (1945)); de Reyes, supra; see
also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873,
880, 131 S.Ct. 2780, 2787, 180 L.Ed.2d 765 (2011).
the "minimum contacts" prong, "[o]pinions in
the wake of the pathmarking International Shoe
decision have differentiated between general or all-purpose
jurisdiction, and specific or case-linked jurisdiction."
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)
(citing Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414, nn. 8, 9, 104 S.Ct. 1868, 80
L.Ed.2d 404 (1984)). Explaining the difference, the Supreme
A court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any
and all claims against them when their affiliations with the
State are so "continuous and systematic" as to
render them essentially at home in the forum State. Specific
jurisdiction, on the other hand, depends on an
"affiliatio[n] between the forum and the underlying
controversy, " principally, activity or an occurrence
that takes place in the forum State and is therefore subject
to the State's regulation. In contrast to general,
all-purpose jurisdiction, specific jurisdiction is confined
to adjudication of "issues deriving from, or connected
with, the very controversy that establishes
Goodyear, supra (internal citations omitted). Simply
stated, "[a] state exercises general jurisdiction when
the defendant's contacts with the state are not related
to the lawsuit. Specific jurisdiction, on the other hand, is
exercised when the suit arises out of or is related to the
defendant's contacts with the ...