Louisiana Record

Tuesday, July 16, 2019

Almost a decade old, lawsuit over $1.3 million deposit heads back to Jefferson Parish


By Karen Kidd | Oct 29, 2018

NEW ORLEANS — An almost decade-old lawsuit over the alleged mishandling of a $1.3 million deposit has been sent back to a Jefferson Parish district court, following a ruling by a federal appeals court this month.

The most recent appeal filed in Richardson et al v. Capital One North America et al was premature because the 24th Judicial District Court Paris of Jefferson's earlier judgment was not designated final under Louisiana law, the U.S. Fifth Circuit Court of Appeals said in its Oct. 5 ruling.

"After review of the matter before us, we find that the judgment at issue is not a final judgment and we lack jurisdiction to consider the merits of the appeal," the U.S. Fifth Circuit Court of Appeals' eight-page ruling said. "Accordingly, we dismiss the appeal and remand this case to the trial court for further proceedings. We also deny defendant's motion to strike plaintiffs' brief and its motion to dismiss the appeal, on other grounds, as they are now moot."

Appeals court Judge Hans Liljeberg wrote the ruling in which judges Fredericka Homberg Wicker and Stephen Windhorst concurred.

Plaintiffs in the case -- Katherine de Jean Richardson, Patrick Jude de Jean and Romano Wholesale Liquor Co. -- had asked the appeals court to review the trial court's decision to sustain an exception of prescription and dismiss the case with prejudice. Defendants in the case, Capital One North America, Hibernia National Bank, ABC Insurance Co. and Diane Fennidy, claimed the appeal was frivolous and, among other things, asked the court to enter judgment in their favor based on no cause or right of action.

The lawsuit, filed in November 2009, alleged that defendants mismanaged or converted $1.3 million deposited in Hibernia National Bank, now Capital One. In August 2010, the 24th Judicial District Court granted a defense exception of prescription and, in September 2010, dismissed the plaintiff's claims. The first appeal soon followed.

In June of the following year, the U.S. Fifth Circuit affirmed the trial court's judgment. After that, Romano Wholesale filed for rehearing, claiming Patrick DeJean had found a February 1999 letter from Fennidy to Marcel DeJean about the deposit and that the letter affected the court's exception of prescription ruling.

On rehearing, the Fifth Circuit vacated its earlier opinion and remanded the case to the judicial district court to determine whether the letter amounted to newly discovered evidence. In December 2012, the judicial district court ruled the letter to be an authentic copy of the original and that it was admissible.

The case continued and in January of last year, the Judicial District Court granted part of a Capital One motion for summary judgment finding that, as a matter of law, "the document that purports to be a Feb. 22, 1999 letter from Diane Fennidy to Mr. DeJean is indeed a fake."

The following October, the Judicial District Court issued a signed judgment granting Capital One's exception of prescription and dismissed the case with prejudice.

About two weeks later, plaintiffs appealed, seeking a review of the Judicial District Court judgment and Capital One asked the appeals court, among other things, to sustain that judgment, to strike plaintiffs' brief, and to impose sanctions against the plaintiffs and/or their counsel.

"After reviewing the pleadings in the record before us, we note that the trial court's judgment does not resolve all of the claims involved in this case, including those set forth in Capital One's recoventional demand," Liljeberg wrote in the most recent ruling.

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