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Capital Management Consultants, Inc. v. Duhon

Court of Appeals of Louisiana, First Circuit

April 18, 2017

CAPITAL MANAGEMENT CONSULTANTS, INC., LAURA LEE GUARISCO, VICTOR GUARISCO, MARIA CEDES GUARISCO, ELIZABETH MERCEDES GUARISCO AND LEAH K. McGRIFF
v.
KAREN DUHON, DONNA PEVETO, NELSON TUCKER, LTD, ARMOND A. DUHON, JAMIE ELIZABETH TUCKER KOCHER TRUSTEE OF JS TUCKER REVOCABLE TRUST, MARCIE ANN TUCKER GREEN TRUSTEE OF MEN TUCKER REVOCABLE TRUST, JAMIE ELIZABETH TUCKER KOCHER, INDIVIDUALLY, JAMIE ELIZABETH TUCKER KOCHER CO-ADMINISTRATRIX OF THE SUCCESSION OF JAMES SCOTT TUCKER, MARCIE ANN TUCKER GREEN, INDIVIDUALLY, MARCIE ANN TUCKER GREEN CO-ADMINISTRATRIX OF THE SUCCESSION OF JAMES SCOTT TUCKER AND ABC SIDING COMPANY OF MORGAN CITY, INC. CAPITAL MANAGEMENT CONSULTANTS, INC.
v.
MICHAEL ALOISE, JR.

         On Appeal from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana Nos. 127952 c/w 128051 Honorable Paul J. deMahy, Judge Presiding

          Barbara Lane Irwin Timothy E. Pujol Gonzales, Louisiana Barbara Lane Irwin Timothy E. Pujol Gonzales, Louisiana

          Henry C. Perret, Jr. Lafayette, Louisiana And Esther Margriet Langenberg (pro hac vice) Farifax, Virginia Robert J. Survant J. Grant Coleman Diana J. Masters New Orleans, Louisiana Counsel for Defendants/ Appellees Marcie Ann Tucker Green and Jamie Elizabeth Kocher, as Administrator Of the Succession of James Scott Tucker, Nelson Tucker, LTD

          David M. Thorguson Morgan City, Louisiana Co-Counsel for Defendant/ Appellee Nelson Tucker, LTD

          BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.

          McCLENDON, J.

         Plaintiffs appeal a judgment that held LSA-R.S. 12:1502 to be the controlling prescriptive/peremptive period as to one of the co-defendants, thereby limiting claims against that co-defendant to a period of three years. For the following reasons, we conclude that the trial court improperly certified the judgment as final under LSA-C.C.P. art. 1915B and dismiss the appeal.

         FACTS AND PROCEDURAL HISTORY

         Capital Management Consultants, Inc. ("CMC") is a Louisiana corporation incorporated in 1982 by Peter Guarisco and James Scott Tucker, who served as the initial officers and directors and continued serving in those capacities until their deaths. Mr. Guarisco died in 2005, and Mr. Tucker died in January 2014.

         In 1982, Karen Duhon was hired by CMC to work as a part-time bookkeeper. Also, since the 1980s, Donnasue Peveto was employed by Guarisco-related companies as an inventory clerk, secretary, and receptionist.

         In December 2014, CMC, along with the heirs of Mr. Guarisco, who are also shareholders in CMC, [1] filed a petition for damages, naming, among others, Karen Duhon, Donnasue Peveto, [2] and the co-administrators of the Succession of James Scott Tucker as defendants.[3] Plaintiffs allege, among other things, that throughout their employment until Mr. Tucker's death, Tucker, Duhon, and Peveto "engaged in an array of schemes ... to defraud, fraudulently convert, steal[, ] and embezzle mon[ie]s and property from Petitioners and to manipulate the corporate and personal ledgers of the Petitioners herein." Plaintiffs also allege that "[b]y working in concert [defendants] were able to steal vast sums of money from the Petitioners and to hide the theft because they were the 'controls, checks and balances.'" For instance, plaintiffs allege that "Karen Duhon and Donnasue Peveto, among other things, and with James Scott Tucker's assistance and approval, submitted false requests for reimbursement of expenses, submitted the requests for reimbursement of an actual expense[, ] ... add[ed] $9, 000.00 or more to the check total, [and] created loans for themselves that James Scott Tucker would write off at a later date against land, art, costs or other transactions or expenses."

         Prior to the instituting the current action, on August 4, 2014, plaintiffs also filed an intervention in Mr. Tucker's succession proceeding, seeking to recover for the alleged wrongful acts of Mr. Tucker.

         In May 2015, two of the co-administrators for Mr. Tucker's succession filed a "Peremptory Exception of Prescription" in the proceedings before us on appeal. Therein, they asserted that because Mr. Tucker was an officer and director of CMC, the three-year peremptive period found in LSA-R.S. 12:1502 relative to corporate officers applies to the exclusion of all other prescriptive periods. The co-administrators asserted that any claims arising from acts that occurred before August 4, 2011 (three years prior to plaintiffs raising these claims in Mr. Tucker's succession proceeding) were time barred.

         The plaintiffs opposed the co-administrators' motion, asserting among other things, that the two-year prescriptive period from discovery found in former LSA-R.S. 12:96, [4] the one-year prescriptive period for delictual actions set forth in LSA-C.C. art. 3492, and/or the ten-year prescriptive ...


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