Schoen v. WallingSchoen v. Walling
Annette Schoеn appeals a judgment sustaining exceptions of prescription in favor of Citizens Bank and Trust Company and Bank One. Citizens and Bank One answer, contesting the trial court‘s denial of their motions for summary judgment. For the reasons expressed, we affirm.
Facts
While a minor, Annette Schoen (Schoen) was injured on an oil well site. Brenda Walling, Schoen‘s mother, and Tommie Walling qualified as her tutrix and undertutrix [sic] and Brenda instituted legal proceedings. Pursuant to a court order, the suit was settled for $120,000, with $62,819.29 net proceeds received by Brenda.1 The following transactions were conducted:
12/21/90, Brenda opened checking account # XXXXXXX at Citizens in the name of Annette Schoen, Brenda оr Tommie Walling, Tutor, with an initial deposit of $8,968.90, which Brenda wrote checks on
12/21/90 Brenda purchased CD # 42 4928 3 2448 from Citizens in the amount of $40,000, payable to Annette Schoen, minor of Brenda Walling or Tommie Walling, which matured on 1/20/91
5/20/91, Brenda withdrew $5,000 from CD # 42 4928 3 2448 and purchased CD # 42-50044 3196 in the amount of $35,000 payable to Annette Schoen, Minor of Brenda Walling or Tommie Walling, which matured on 6/19/91
7/19/91, Brenda withdrew $5,000 from CD # 42 4928 3 2448 and purchased CD # 42 5038 9 3236 in the amount of $30,000 to Annette Schoen, minor of Brenda Walling or Tommie Walling, which matured on 10/19/91
8/12/91, Brenda withdrew all the funds pursuant to Bank Money Order # 55938, for $29,688.08, payable to the order of Annette Schoen, Minor of Brenda Walling, Tutrix
8/13/91, Brenda opened chеcking account # 110 1103 66 1 at Bank One, styled Brenda Walling, Tutrix of Annette M. Schoen, with an initial deposit of $4,688.08; Brenda wrote checks on the account, and in 1991, she withdrew $1,266.14 and closed the account
8/13/91, Brenda purchased CD # 77 09062 from Bank One for $25,000 payable to Annette Schoen, Minor of Brenda Walling, Tutrix, which matured on 09/12/91
10/15/91, Brenda withdrew $2,000 for CD # 77 09062, and purchased CD # 77 029110 in the amount of $23,211.06, payable to Annette
11/14/91, Brenda withdrew $3,304.54 from CD # 77 09062, and purchased CD # 77 029131 in the amount of $20,000, payable to Annette Schoen, Minor of Brenda Walling, Tutrix, which matured on 2/14/92
2/14/92, Brenda withdrew $4,665.15 from CD # 77 029131, and purchased CD # 77 031914 in the amount of $13,000, payable to Annettе Schoen, Minor of Brenda Walling, Tutrix, which matured on 5/14/92
5/14/92, Brenda withdrew $3,119.88 from CD # 77 031914, and purchased CD # 77 031955 in the amount of $10,000, payable to Annette Schoen, Minor of Brenda Walling, Tutrix, which matured on 8/14/92
8/14/92, Brenda withdrew $4,087.98 from CD # 77 031955, and purchased CD # 77 032008 in the amount of $6,000, payable to Annette Schoen, Minor of Brenda Walling, Tutrix, which matured on 11/11/92
11/11/92, Brenda withdrew $6,087.98 from CD # 77 032008, the entire amount of the CD
On November 2, 1994, Schoen filed suit against Brenda and Tommie Walling for breaching their duties as her tutrix/tutor, and against Citizens Bank and Trust Company and Premier Bank (now Bank One) for breaching their duties as depositories of a minor‘s proceeds and allowing her tutrix to withdraw the funds without prior court apрroval. Schoen concedes in brief that she was aware of $2,596 being expended for her benefit and $3,000 being used for an automobile for her use.
Bank One filed a motion for summary judgment, arguing that it had no knowledge that Brenda needed court authority to make withdrawals and asserting no duty to monitor withdrawals madе by a tutor. On December 9, 1997, the trial court granted the summary judgment and dismissed Schoen‘s claims against Bank One. On December 30, 1997, the trial court, on its own motion, set aside the summary judgment because of improper service of the motion. In a Motion to Fix Argument, Citizens adopted and joined Bank One‘s motion for summary judgment. Bоth banks filed affidavits that their account records contained no court orders concerning the tutorship, that they had no actual knowledge of any such orders, and that the signature cards authorized Brenda to withdraw funds from the accounts. Schoen did not contest these facts.
Both banks then filed peremptory exceptions of prescription urging suit was brought more than one year after Schoen reached the age of majority. On March 27, 1998, Schoen amended her petition, asserting that both banks had breached their contractual obligations. All motions and exceptions were submitted on the record. On April 7, 1998, the trial court denied the motions for summary judgment and sustained the exceptions of prescription, dismissing Citizens and Bank One from the suit.
Schoen has appealed the sustaining of the peremptory exceptions of prescription, claiming that the suit is either contractual, with a 10-year liberative prescriptive period, or arises under negotiable instruments law with a five-year liberative prescription. She further asserts that the prescriptive period did not toll until the summer of 1994 due to the doctrine of contra non valentem. The banks answer in the alternative and contest the trial court‘s denial of their motions for summary judgment.
Applicable law
Liberative prescription is a mode of barring actions as a result of inaction for a period of time.
Any money or other property deposited by a minor or other person in the name of a minor with a bank may be withdrawn by the minor or other person in the manner and under the terms of the written instructions given at the time of the opening of the account or of the making of the deposit.
Further,
If a deposit is made in a bank to the credit of the fiduciary as such, the bank is authorized to pay the amount of the deposit or any part thereof, upon the check of the fiduciary, signed with the name in which such deposit is entered, without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check, or with the knowledge of such facts that its action in paying the check amounts to bad faith.
A court should resolve any doubts regаrding a peremptory exception by overruling the exception and allowing the litigant her day in court. Woodlawn Park Ltd. Partnership v. Doster Const. Co., 623 So.2d 645 (La.1993); Clayborn Timber Co. v. Butler Ins. & Real Estate Inc., 29,194 (La.App. 2 Cir. 2/26/97), 690 So.2d 940. Therefore prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206; Clayborn Timber Co. v. Butler, supra. Normally, the defendant who pleads prescription hаs the burden of proving it; however, when the action is prescribed on the face of the petition, the plaintiff has the burden of showing why the claim has not prescribed. Wimberly v. Gatch, supra, and citations therein. Prescription does not run against a person who is unable to bring suit. This is the doctrine of “contra non valentem.” Causby v. Perque Floor Covering, 97-1235 (La.1/21/98), 707 So.2d 23; Wimberly v. Gatch, supra; Johnson v. Concordia Bank & Trust Co., 95-1187 (La.App. 3/27/96), 671 So.2d 1093. Contra non valentem does not apply when the claimant‘s ignorance of the facts is willful, negligent or unreasonable. Wimberly v. Gatch, supra; Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960; Senn v. Board of Sup‘rs, 28,599 (La.App. 2 Cir. 8/21/96), 679 So.2d 575, writ denied 96-2344 (La.10/25/96), 681 So.2d 379.
Evidence may be introduced when deciding the issue of prescription.
Discussion
By her sole assignment of error, Schoen urges the District Court erred in sustaining the banks’ exceptions of prescription. In support, she advances four arguments, the first two of which may be disposed of summarily. First she argues that the court erred in failing to “accept the facts alleged by the plaintiff as true.” However, the court stated that it had considered the entire record, including affidavits and attachments filed with the motions for summary judgment.
Second, she argues that payment of a debt owed to a minor, if made to someone not legally authorized to accept payment, is not a valid satisfaction of the debt. In support, she cites Succession of Hellmers, 93-2386 (La.App. 4 Cir.5/26/94), 637 So.2d 1302. However, the evidence introduced below shows that Brenda was duly appointed as Schoen‘s natural tutrix. As such, she was authorized to administer the minor‘s property in her own name.
It is apparent, however, that the five-year prescription of
By contrast, in the instant case the banks discharged their respective obligations by paying Schoen‘s tutrix the money, which was subsequently reinvested or spent. This discharged the banks’ obligations.
We have also considered whether the 10-year prescription for personal actions might apply. It is well еstablished that a bank and its depositor stand in a debtor-creditor relationship which is contractual in nature. Marx v. Whitney Nat‘l Bank, 97-3213 (La.7/8/98), 713 So.2d 1142; Lilliedahl & Mitchel Inc. v. Avoyelles Trust & Sav. Bank, 352 So.2d 781 (La.App. 3 Cir.1977). However, it is the nature of the claim, not the mere existence of a contract, that determines the appropriate prescriptive period. Harrison v. Gore, supra.3 In Sanderson v. First Nat‘l Bank of Commerce, supra, the court found that the holder of a checking and savings account had a contract with his bank, but rejected the argument that tortious conversion of account proceeds was a contract action. In the instant case, Schoen has generally alleged, by amended petition, breach of contract, but presented no evidence that the deposit agreements afforded her a longer prescriptive period than one year, or renounced the banks’ right to pay the tutrix. On the showing made, the one-year prescriptive period, as applied in Sanderson and Johnson, supra, was properly applied to the instant case.
By her fourth argument Schoen contends that prescription was suspended under the theory of contra non valentem.4 Brenda withdrew Schoen‘s funds from Citizens Bank on August 13, 1991, and from
During her minority, Schoen was incaрable of administering her own affairs.
On the instant record, the District Court was entitled to find that Brenda‘s alleged lies did not prevent Schoen from knowing facts essential to her cause of action. Though Brenda may have misled her, Schoen did nоthing to ascertain the truth about a large sum of money. Because she made none of the basic inquiries regarding her settlement proceeds, we cannot say that her ignorance was not willful, negligent or unreasonable. Wimberly v. Gatch, supra. For these reasons, prescription tolled one year after she аttained majority, or on September 26, 1994. The instant suit, filed in November 1994, was not timely. The District Court‘s ruling on the exceptions of prescription will therefore be affirmed.6
Conclusion
For the reasons expressed, the judgment sustaining the exceptions of prescription is affirmed. Costs are assessed to the appellant, Annette Michelle Schoen, to the extent permitted by
AFFIRMED.