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Duet v. Landry

Court of Appeals of Louisiana, First Circuit

April 30, 2018

BRAD AND JOY DUET
v.
JERRY LANDRY, JR. AND SIMONEAUX'S MOBILE HOME MOVERS, LLC

          On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Assumption State of Louisiana No. 35, 001 Div. "C" The Honorable Katherine Tess Stromberg, Judge Presiding

          Henri M. Saunders Scotty E. Chabert, Jr. Cheyenne Moeller Meek Baton Rouge, LA Attorneys for Plaintiffs/Appellees Brad and Joy Duet

          Tonya B. Clark Napoleonville, LA Attorney for Defendants/Appellants Jerry Landry, Jr. and Simoneaux's Mobile Home Movers, LLC

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HOLDRIDGE, J.

         Defendants-appellants, Jerry Landry, Jr. and Simoneaux's Mobile Home Movers, LLC, appeal the trial court's judgment denying their peremptory exception raising the objection of prescription and awarding plaintiffs-appellees, Brad and Joy Duet damages. For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Duet was employed by Simoneaux's Mobile Home Movers, LLC, which was owned and operated by Mr. Landry. In August of 2011, Mr. Landry received a check from First American Trust for $28, 095.12 that was payable to Mr. Duet. Mr. Landry asked Mr. Duet to endorse the check. Mr. Duet was allegedly unaware of what he was signing. The proceeds from the check were deposited into Mr. Landry's account. However, unbeknownst to Mr. Duet, the proceeds of the check were reported as retirement income belonging to him and his wife, Mrs. Duet. On January 7, 2013, plaintiffs received a notice from the Internal Revenue Service (IRS) for taxes on the retirement income along with penalties and interest. The notice asserted that plaintiffs owed the IRS $4, 733.00 in unpaid taxes for the 2011 tax year.

         On March 4, 2013, plaintiffs sent the IRS a letter advising them that they never received the $28, 095.12 income and that they believed there was identity theft. Mrs. Duet then contacted the IRS to investigate the matter and discovered that the check, made payable to Mr. Duet and issued by First American Trust, was from the liquidation of a retirement account alleged to be earned by Mr. Duet from Simoneaux's Mobile Home Movers, LLC. After learning this, Mr. Duet promptly contacted Mr. Landry, who assured him that he would take care of it and claimed that it was a mistake.

         On April 1, 2013, plaintiffs received another notice from the IRS stating that there was an increase in their taxes and gave them a limited time to appeal. Mr. Duet immediately contacted Mr. Landry, who again assured him that it was a mistake and that he was going to take care of it. Mr. Landry also told Mr. Duet that "he [had already] paid the taxes on it." On May 22, 2013, plaintiffs contacted the IRS and advised them that they had learned that Mr. Landry had created a retirement account in the name of Mr. Duet, without his knowledge. On July 10, 2013, the IRS sent another notice to plaintiffs advising them that it was investigating the matter.

         On March 3, 2014, the IRS sent a notice to plaintiffs indicating that although plaintiffs' 2013 tax form showed an overpayment of $1, 756.00, entitling them to a refund, the IRS was applying that amount to the tax purportedly owed by them to the IRS in 2011. Mr. Duet questioned Mr. Landry again about the tax issue and he reassured Mr. Duet that he was "still looking at it [and] that it was paid." On July 14, 2014, plaintiffs received a notice from the Louisiana Department of Revenue (LDR) stating that they owed the LDR the sum of $1, 126.11, arising from a federal audit for the 2011 tax filing year, which included penalties and interest. Mr. Duet again contacted Mr. Landry about the issue, who again assured him that he was consulting with a CPA to resolve any issues and would pay any taxes owed.

         On October 13, 2014, plaintiffs filed a petition for damages against defendants because they never received their money from defendants. In their petition, plaintiffs alleged that the proceeds from the check were liquidated retirement funds belonging to Mr. Duet and they sought a judgment in the amount of those funds as well as damages, including the IRS interest and penalties and general damages for emotional distress. Defendants answered the petition, contending that the funds did not belong to Mr. Duet because Mr. Landry had never established a retirement fund for Mr. Duet. Defendants also filed a peremptory exception raising the objection of prescription.

         This matter proceeded to a bench trial on December 17, 2015. The trial court considered the peremptory exception raising the objection of prescription at trial and denied it. Testimony and evidence at trial established that the funds from the check belonged to Mr. Landry; however, the trial court found that defendants were liable to plaintiffs for the amount of federal income tax liability plaintiffs incurred on the proceeds. On February 4, 2016, the trial court rendered judgment for plaintiffs against defendants for $4, 733.00, along with any penalties and interest, representing the tax liability. The trial court also awarded Mr. Duet $5, 000.00 and Mrs. Duet $10, 000.00 against defendants for emotional distress damages. Defendants appealed the February 4, 2016 judgment.

         On May 9, 2016, this court on its own motion issued a rule to show cause as to why this appeal should not be dismissed because the written reasons were not set out in an opinion separately from the judgment. See La. C.C.P. art. 1918. The record was supplemented by the trial court with a judgment signed February 4, 2016, which contained only the trial court's rulings and not the reasons for judgment. Therefore, this court dismissed the appeal on March 6, 2017 and remanded ...


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