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Ohle v. Uhalt

Court of Appeals of Louisiana, Fourth Circuit

February 1, 2017

JOHN BREWSTER OHLE, III
v.
HUGH A. UHALT, ET AL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-10835, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

         AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS

          John B. Ohle, III PLAINTIFF/APPELLANT IN PROPER PERSON.

          Stephen H. Kupperman Joshua O. Cox BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC COUNSEL FOR DEFENDANTS/APPELLEES.

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods.

          ROSEMARY LEDET, JUDGE

         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 administered 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; Ecetra 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, 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 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.
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.

         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 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)).[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, 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 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. 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.").

         The 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).

         As to 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 Court noted:

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 jurisdiction."

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 ...


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