Schulingkamp v. CarterSchulingkamp v. Carter
Christian A. Shofstahl, Stephen C. Aertker, Jr., Thomas H. Huval, Covington, LA, for Plaintiff/Appellee Linda G. Schulingkamp.
OPINION
HUGHES, J.
This is an appeal of a judgment granting a motion for summary judgment filed by plaintiff, Linda Schulingkamp.1 The judgment found in favor of Linda Schulingkamp and against Regions Bank in the amount of $182,750.63, plus interest from the date of judicial demand against the codefendant, Daverius Carlos Carter. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In June of 1999 Ms. Schulingkamp filed a petition for damages against Daverius Carlos Carter, John Doe, and XYZ Insurance Company alleging, in pertinent part, that on June 17, 1998, Ms. Schulingkamp
On March 28, 2006, Regions Bank filed a motion for summary judgment. The motion was denied by judgment dated June 6, 2006. From that judgment Regions filed a writ application with both this court and the supreme court. Both requests were denied.
On August 30, 2006, Ms. Schulingkamp filed a motion for summary judgment, which was granted. A written judgment holding Regions Bank liable for the full amount of the check, plus judicial interest from the date of judicial demand and court costs, was signed on March 29, 2007. On March 30, 2007, a per curiam issued that stated that Regions was liable for judicial interest from the date of the original demand upon Carter.
Regions appeals and makes the following assignments of error:
1) The trial court erred by holding Regions Bank solidarity liable with Daverius Carter;
2) The trial court erred by failing to apply comparative fault principles to plaintiff‘s claim of conversion;
3) The trial court erred by awarding interest from the date of judicial demand on Carter;
4) The trial court erred by relying on “authentic evidence” of Carter‘s knowledge when no such evidence was introduced and when Carter‘s knowledge remains an unresolved genuine issue of material fact; and
5) The trial court erred by granting plaintiff‘s motion for summary judgment on her claim of conversion.
LAW AND ARGUMENT
Appellate courts review summary judgments de novo under the same criteria that govern the district court‘s consideration of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial — New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). In ruling on a motion for summary judgment, the judge‘s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738-9.
After a thorough review of the record before us, we note that the material facts of this case are not in dispute. The real issue before us is whether the trial court correctly interpreted and applied the law.
Appellate review of questions of law is simply review of whether the trial court was legally correct or legally incorrect. City of Baker School Board v. East Baton Rouge Parish School Board, 99-2505, p. 2 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292. On legal issues, the appellate court gives no weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Northwest Louisiana Production Credit Association v. State, Department of Revenue and Taxation, 98-1995, p. 3 (La.App. 1 Cir. 11/5/99), 746 So.2d 280, 282.
CONVERSION UNDER THE COMMERCIAL LAWS
Region‘s assigns error in the trial court‘s granting of plaintiffs motion for summary judgment on the claim of conversion and its failure to apply comparative fault principles, pursuant to
Under the Commercial Laws,
(a) An instrument is converted when
* * *
(iii) it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.
* * *
(c) In an action under Subsection (a), the measure of liability is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiff‘s interest in the instrument.
Further,
(ii) in blank or to a particular bank using the words “for deposit,” “for collection,”
or other words indicating a purpose of having the instrument collected by a bank for the indorser or for a particular account, the following rules apply: * * *
A depositary bank that purchases the instrument or takes it for collection when so indorsed converts the instrument unless the amount paid by the bank with respect to the instrument is received by the indorser or applied consistently with the indorsement. (emphasis added.)
There is no dispute that the check was signed by Linda G. Schulingkamp and endorsed with the words “For Deposit Only.” Neither does Regions Bank dispute that even though Ms. Schulingkamp was the only payee, that she had signed and endorsed the check “For Deposit Only“, and that she did not have an account at Regions, it nevertheless accepted the check for deposit into Daverius Carter‘s account, thereby making payment to Carter, a person not entitled to receive payment. This action was inconsistent with the endorsement. As such, pursuant to
SOLIDARY LIABILITY AND JUDICIAL INTEREST
Regions also assigns error to the trial court‘s finding of solidary liability. Specifically, Regions argues that it should not be liable for judicial interest from the date of demand upon Carter, but only from the date of demand upon it by Ms. Schulingkamp.
Because we find no provision under the Commercial Laws that directly addresses or expressly imposes solidary liability on a depository bank for conversion, we will apply “the other laws of Louisiana.”
The purpose of solidary liability is to compel any tortfeasor to pay the entire judgment. Ross v. Conoco, Inc., 02-0299 (La. 10/15/02), 828 So.2d 546, 552. Although a solidary obligation may derive from different sources as to each of the obligors,
We find that Regions and Carter are obliged to pay the whole of the same thing: the funds lost by Ms. Schulingkamp due to the conversion. Thus, although their liabilities derive from different sources, because each may be compelled for the whole and payment by one exonerates the other toward Ms. Schulingkamp, they are solidarity liable together for their separate acts of conversion.2
EVIDENTIARY CLAIMS
And finally, Regions alleges that the trial court erred in granting summary judgment because there was no evidence introduced to establish Carter‘s knowledge or intent, and therefore genuine issues of material fact remain. Although Regions summarily argues that Carter‘s absence precludes summary judgment, it does not indicate on what basis its statutorily imposed liability would be spared. It is ultimately irrelevant whether Mr. Carter would claim to have acted inadvertently or intentionally. The conversion occurred and Regions and Carter are both liable. This assignment of error lacks merit.
CONCLUSION
The judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant, Regions Bank.
AFFIRMED.
WHIPPLE, J., concurs for reasons assigned.
WHIPPLE J., concurring.
Although I agree with the majority that the application of the principles of the U.C.C. to the undisputed facts herein produces a harsh result, I am unable to find any legal authority to require or allow Regions to escape liability vis-a-vis its contractual obligation to plaintiff under the U.C.C.
However, I write separately to specially note that by our ruling this date, we expressly pretermit (and thereby reserve) the right to Regions to pursue any claims it may have against Carter or any other offending parties herein.
WHIPPLE, J., concurs, for reasons assigned.