ECETRA N. AMES
JOHN B. OHLE, III, J.P. MORGAN CHASE & CO. F/K/A BANK ONE CORPORATION, DOUGLAS STEGER AND KENNETH A. BROWN
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-00440,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
Gladstone N. Jones, III Lynn E. Swanson H. S. Bartlett, III
Catherine E. Lasky Lindsay Reeves JONES, SWANSON, HUDDELL
& GARRISON, LLC COUNSEL FOR PLAINTIFF/APPELLANT.
W. Hite, III SALLEY HITE MERCER & RESOR, LLC One Canal
Place -AND J. Gregory Deis Stephen J. Kane MAYER BROWN, LLP
Cesar R. Burgos Robert J. Daigre Corina E. Salazar Gabriel O.
Mondino George McGregor BURGOS & ASSOCIATES, LLC COUNSEL
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Regina
A. LOMBARD, JUDGE
Appellant, Hugh Uhalt,  seeks review of three district
court judgments in the instant appeal: a January 26, 2016
judgment dismissing respondeat superior claims against
Appellee, J.P. Morgan Chase & Co. f/k/a Bank One
Corporation ("Bank One"); a February 4, 2016
judgment dismissing his remaining claims against Bank One;
and a March 23, 2016 judgment granting an exception of
res judicata of Appellee John Ohle, III
("Ohle"). Finding that the judgment of the district
court granting Ohle's exception of res judicata
is neither manifestly erroneous nor legally incorrect, we
affirm. Moreover, pursuant to our de novo review, we
find that there are no genuine issues of material of fact
precluding the granting of Bank One's respective motions
for summary judgment. Lastly, Bank One's Answer to Appeal
is denied as moot.
AND PROCEDURAL HISTORY
facts of this matter were previously set forth in Ames v.
Ohle, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, as
In 1998, plaintiff, Ecetra N. Ames, hired defendant, John B.
Ohle, III, to provide tax and financial planning
services. Ohle was employed by defendant, Bank
One, from 1999 through 2002 in the bank's Innovative
Strategies Group. In December 1999, Ames executed an
instrument establishing a Charitable Remainder Unitrust
("Trust"), which designated Ohle as
trustee. Ames asserts that she initially funded
the trust with almost $5 million, followed by contributions
in almost $3 million over the next two years. Ames alleges
that in 2001, Mr. Ohle approached her about investing in a
hedge fund called Carpe Diem Dynamic Fund Linked Warrants
("Carpe Diem Warrants"). Ames agreed to invest $5
million in Carpe Diem Warrants. After the $5 million transfer
was made, Ames alleges that Ohle instructed the Carpe Diem
fund to withhold $250, 000 as a fee for the purchase of the
warrants. Ames asserts that she was not informed that there
would be any fees for the purchase of the Carpe Diem
Warrants. Ames asserts that at the same time Ohle purchased
$4.75 million worth of Carpe Diem Warrants on Ames's
account, he transferred $2 million of the Trust's funds
to purchase additional Carpe Diem Warrants. This transfer
involved a fee of $100, 000, which Ames asserts was not
disclosed to her.
Ames also asserts that defendant, Douglas Steger, at the
direction of Ohle, directed the Carpe Diem fund to send $300,
000 of the $350, 000 of fees collected by Ohle to the bank
account of Invested Interest, a company based in San
Francisco, California and wholly owned by Individual
"A." Ames's petition states that Individual
"A" is an unnamed, non-defendant co-conspirator,
who is an investment advisor and friend of Ohle. Ames asserts
that on November 27, 2001, Ohle directed $347, 834 to be
transferred from the Trust to Carpe Diem. Subsequently, Ohle
directed Carpe Diem to send the $347, 834 in funds to
Invested Trust. Ames alleges that Individual "A",
at the direction of Ohle, through several transactions sent a
total of $375, 000 of her money to a bank account owned by
Kenneth Brown and his then wife at Gulf Coast Bank. Ames
further alleges that another $267, 634 of her money was
transferred to a bank account owned by Ohle at Hibernia Bank.
Ames asserts that she had no knowledge of these transactions.
Ames alleges that Ohle and Brown used the funds improperly
deducted from Ames's Carpe Diem investment to fund
Brown's position as a third-party investor in the
"Hedge Option Monetization of Economic Remainder"
("HOMER"), which is a tax strategy sold by Ohle and
Bank One to high net-worth individuals. Ames further alleges
that Ohle, Brown, and Bank One received significant income
from their roles with regard to the HOMER tax strategy.
Specifically, Ames asserts that Bank One received over $5,
000, 000 in fees for referring its clients to the HOMER
In March 2003, Ames requested that Ohle provide her with an
accounting for the Trust. Ames asserts that Ohle falsely told
her that $350, 000 in fees was paid entirely to Steger. After
learning, in August 2003, of Ohle's mishandling of the
Trust, Ames and Ohle executed a settlement agreement.
However, Ames asserts that the accounting did not apprise her
of the following: money taken from the Trust that was
funneled through Carpe Diem; the withdraws by Ohle from the
Trust; or the use of Carpe Diem fees and Trust funds to fund
the HOMER tax strategy.
In 2008, Ohle was indicted by a grand jury in the Southern
District of New York for various fraud and tax offenses. Ames
asserts that it was within the course of Ohle's criminal
trial that she discovered for the first time that Ohle
benefited from the $350, 000 of fees she and the Trust were
charged for the purchases of Carpe Diem Warrants. In
addition, Ames also asserts that it was at this time that she
first learned of Ohle's $347, 834 transfer from the Trust
to Carpe Diem to fund the HOMER tax strategy. In June 2010,
Ohle was found guilty as charged.
After further details of Ohle's mishandling of Ames's
Trust were disclosed throughout Ohle's criminal trial, in
October 2009, Ames filed suit against the same defendants in
the instant case in federal court alleging claims under RICO
as well as several state law claims. Ames v. Ohle,
2010 WL 5055893, p. *2 (E.D.La.2010). The federal court
dismissed Ames's RICO claims as untimely based on the
"injury discovery" rule, which determines when a
RICO claim accrues. Id. at *2, *4. . . . Further,
the federal court declined to exercise jurisdiction over
Ames's remaining state law claims since the only federal
law claims were dismissed at an early stage of the
On January 14, 2011, Ames filed her petition in this suit.
Bank One filed multiple exceptions, including exceptions of
preemption, prescription and no cause of action, which were
adopted by the other defendants, Brown and Steger. The
district court sustained Bank One's exception of
prescription by oral ruling on May 27, 2011.
Ames v. Ohle, 11-1540, pp. 1-5 (La.App. 4 Cir.
5/23/12), 97 So.3d 386, 389-90, decision clarified on
reh'g (July 11, 2012), writ denied, 12-1832
(La. 11/9/12), 100 So.3d 837.
above-referenced appeal, Mrs. Ames sought review of the
district court's grant of Bank One's exception of
prescription. We reversed in part the portion of the district
court's judgment "sustaining Bank One's
exception of prescription as to her [Mrs. Ames's] claim
for fraud" and remanded for further proceedings. In all
other respects, the grant of the exception of prescription
was affirmed. On rehearing, we clarified that Mrs. Ames's
fraud claim "is personal in nature" and is subject
to a ten-year prescriptive period. Id.
Ohle filed exceptions of prescription and res
judicata. The district court granted the exception of
res judicata dismissing Mrs. Ames's claims
against Ohle, with prejudice. Bank One also filed a motion
asserting that it was entitled to summary judgment on the
following issues: not being a proper party defendant,
respondeat superior, fraud, and civil conspiracy. The
district court ultimately granted Bank One's motion for
summary judgment in full.
Uhalt timely filed the instant appeal. He raises four
assignments of error:
1. The district court erred in granting Ohle's exception
of res judicata on the basis of a prior settlement
agreement that was reached through his fraudulent concealment
of the information that forms the basis of Mr. Uhalt's
claims in this matter.
2. The district court erred in granting summary judgment to
Bank One on the issue of Ohle's employment status,
finding as a matter of law that he was employed by ors
Corporation ("BOIA") rather than Bank One, where
voluminous evidence shows a genuine dispute of material fact
as to Bank One's employment of Ohle.
3. The district court erred in granting summary judgment to
Bank One on Mr. Uhalt's respondeat superior claims, on
the basis of a lack of benefit to Bank One from Ohle's
conduct, where the evidence shows a genuine issue of material
fact regarding the benefit received by Bank One.
4. The district court erred in granting summary judgment to
Bank One on Mr. Uhalt's direct fraud claims against Bank
One, where there is evidence in the record showing a genuine
dispute of material fact regarding Mrs. Ames's reliance
on Bank One's role as an investment advisor and regarding
what actions Mrs. Ames would have taken had Bank One warned
her of Ohle's wrongful actions.
of Res Judicata
first assignment of error, Mr. Uhalt argues that his claims
of fraud against Ohle are not barred by the exception of
res judicata and the terms of the 2003 Settlement
Agreement. He avers that the Settlement Agreement was only
applicable to "all matters disclosed;" however, the
claims at issue were unknown to Mrs. Ames at the time she
executed the Settlement Agreement. Ohle, according to Mr.
Uhalt, failed to meet his burden of showing that the
Settlement Agreement barred the instant claims. He further
asserts that it is undisputed that Ohle "concealed the
information" underlying Mrs. Ames's petition from
both her and her attorney, John Wogan, when the Settlement
Agreement was created. Her petition raises claims that she
learned of after entering into the Settlement Agreement,
during the course of Ohle's indictment and federal
criminal proceedings, according to Mr. Uhalt. Mr. Uhalt
further argues that in addition to its fraud claims against
Ohle, Mrs. Ames did not learn of Bank One's misconduct
until after the Settlement Agreement was executed.
Mr. Uhalt asserts that even if the Settlement Agreement is
determined to be applicable to the issues raised in Mrs.
Ames's Petition, she was fraudulently induced by Ohle
into signing the Settlement Agreement. Thus, the contract may
be vitiated by fraud, he contends. Tate v. Woman's
Hosp. Found., 10-425, p. 5 (La. 1/19/11), 56 So.3d 194,
198; La. Civ. Code art. 1948. He also argues that Bank One is
precluded from relying on the Settlement Agreement because
neither Bank One nor any of its affiliated entities were
courts review of a peremptory exception of res
judicata "to determine if the trial court's
decision is legally correct or incorrect." BBCL
Enterprises, LLC v. Am. Alternative Ins. Corp., 15-0469,
p. 3 (La.App. 4 Cir. 2/3/16), 187 So.3d 65, 67 (quoting
Myers v. Nat'l Union Fire Ins. Co. of Louisiana,
09-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210.
Additionally, "[w]e review factual issues relating to an
exception of res judicata on a manifest
error/clearly wrong basis." Id. (quoting
Countrywide Home Loans Servicing, LP v. Thomas, 12-1304,
p. 3 (La.App. 4 Cir. 3/20/13), 113 So.3d 355, 357).
that at the time the parties entered into the Settlement
Agreement, Ohle was still the trustee of the Trust. He
resigned from that position as a condition of the Settlement
Agreement. In addition to the Settlement Agreement, a consent
judgment was later issued by the district court. Furthermore,
Mrs. Ames was represented by counsel and acting under the
advice of her counsel when she signed the Settlement
Agreement. Ohle asserts that despite still being the trustee,
he did not retain a position of influence or trust over Mrs.
Ames as the parties were adversaries at that juncture. The
Settlement Agreement, he argues, is all inclusive covering
all of his actions up to the date that the Settlement
Agreement was executed.
district court explained during the January 15, 2016 hearings
that it was granting the exception because the parties
entered into a global release and that the Settlement
Agreement resulted from the parties "no longer having a
relationship of trust."
further note that at said hearing, counsel for Mr. Uhalt
admitted that the Settlement Agreement was indeed a
global release. The Settlement Agreement states that
Mr. and Mrs. Ames agreed to:
Hereby discharge and forever release John B. Ohle, III, his
heirs, successors, agents, employees, attorneys and assigns
of and from any and all liability and all claims and demands
or any nature or kind, whether in law or in equity,
whether or not now known, whether growing out of tort,
contract or otherwise, including without limitation all
obligations and liability resulting in any manner from
(i) the administration of the Ecetra N. and Anthony M. Ames
1999 Charitable Remainder Unitrust by John B. Ohle, III as
trustee and fully release, discharge and acquit John Ohle of
any further responsibility in connection with the Ecetra N.
and Anthony M. Ames 1999 Charitable Remainder Unitrust
subject to his delivery to the duly appointed successor
trustee of all cash and every item of property held by John
B. Ohle, III, as trustee of the Ecetra N. and Anthony M. Ames
1999 Charitable Remainder Unitrust and to which the Trust is
entitled, and (ii) professional and/or personal services of
John B. Ohle, III, rendered to Ecetra Nippert Ames and
Anthony M. Ames, or either one of them, at any time up to and
including the date of this Agreement. [Emphasis added.]
the 2004 Consent Judgment states in pertinent part that:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the
accounting of the entire administration of the Anthony M. and
Ecetra N. Ames 1999 Charitable Remainder Unitrust by its
Trustee, John Brewster Ohle, III, more fully set forth in
Exhibit "B" to the Petition filed in the record of
this proceeding is hereby approved in accordance with LSA
R.S. 9:2088, and such accounting shall be conclusive
against a beneficiary of the trust with respect to all
matters disclosed in such accounting, with all costs of
these proceedings to be borne by Petitioner. [Emphasis
compromise precludes the parties from bringing a subsequent
action based upon the matter that was compromised." La.
Civ. Code art. 3080. Our Court has previously explained the
binding nature of a compromise on those who were parties to
A compromise precludes the parties from bringing a subsequent
action based upon the matter that was compromised. La. C.C.
art. 3080. This preclusive effect of a compromise can be
raised in a peremptory exception, under Louisiana Code of
Civil Procedure Article 927. See La. C.C. art. 3080, part (a)
of Revision Comments-2007. A valid compromise may form the
basis of a plea of res judicata. Rein v. Edwards,
921 So.2d at 1160, citing Rivett v. State Farm Fire Cas.
Co.,508 So.2d 1356, 1359 (La.1987); see also Brown
v. Drillers, Inc., 93-1019 ...