Filed: Jul. 11, 2012
Latest Update: Jul. 11, 2012
Summary: ON APPLICATION FOR REHEARING ROSEMARY LEDET, Judge. We grant rehearing for the sole purpose of clarifying our May 23, 2012 opinion in the following respect. We stated that since "Ames's claims for fraud and misrepresentation are subject to a one-year prescriptive period, her claim for civil conspiracy is likewise subject to a one-year prescriptive period." Ames v. Ohle, 11-1540, p. 6 (La. App. 4 Cir. 5/23/12), ___ So.3d ___. However, we determined that Ames's claim for negligent misrepresent
Summary: ON APPLICATION FOR REHEARING ROSEMARY LEDET, Judge. We grant rehearing for the sole purpose of clarifying our May 23, 2012 opinion in the following respect. We stated that since "Ames's claims for fraud and misrepresentation are subject to a one-year prescriptive period, her claim for civil conspiracy is likewise subject to a one-year prescriptive period." Ames v. Ohle, 11-1540, p. 6 (La. App. 4 Cir. 5/23/12), ___ So.3d ___. However, we determined that Ames's claim for negligent misrepresenta..
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ON APPLICATION FOR REHEARING
ROSEMARY LEDET, Judge.
We grant rehearing for the sole purpose of clarifying our May 23, 2012 opinion in the following respect. We stated that since "Ames's claims for fraud and misrepresentation are subject to a one-year prescriptive period, her claim for civil conspiracy is likewise subject to a one-year prescriptive period." Ames v. Ohle, 11-1540, p. 6 (La. App. 4 Cir. 5/23/12), ___ So.3d ___. However, we determined that Ames's claim for negligent misrepresentation is subject to a one-year prescriptive period and her fraud claim is subject to a ten-year prescriptive period. Ames, 11-1540, at p. 5, ___ So.3d ___.
The precept for civil conspiracy is set forth under La. C.C. article 2324, which provides:
He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433, p. 22 (La. App. 4 Cir. 5/26/10), 40 So.3d 394, 408; La. C.C. art. 2324. However, we noted that conspiracy by itself is not an actionable claim under Louisiana law. Ames, 11-1540, at p. 6, ___ So.3d ___ . Instead, the actionable element under Article 2324 is the intentional tort the conspirators agreed to commit and committed in whole or in part causing plaintiff's injury. New Orleans Jazz and Heritage Foundation, Inc., 40 So.3d at 408.
In this case, the tortious conduct alleged is misrepresentation and fraud. Ames's negligent misrepresentation claim is prescribed and is no longer actionable. However, we determined that Ames's fraud claim has a prescriptive period of ten-years. Thus, Ames's civil conspiracy claim based on fraud also has a prescriptive period of ten-years.
Bank One argues by allowing Ames's fraud claim to go forward this Court circumvents La. R.S. 6:1124 that provides a one-year prescriptive period for breach of fiduciary duty by a bank. However, after a review of the legislative history of La. R.S. 6:1124, this Court in Bizcapital Business & Industrial Development Corp. v. Union Planters Corp., 03-2208, p. 5 (La. App. 4 Cir. 9/8/04), 884 So.2d 623, 627, determined that the legislature did not intend to totally immunize banks from all legal duties in their relationship with customers and third parties. See also Priola Const. Corp. v. Profast Development Group, Inc., 09-342 (La. App. 3 Cir. 10/7/09), 21 So.3d 456.
Ames alleges that Bank One's conduct was more than a passive failure to properly supervise Ohle but were affirmative actions to conceal their self-dealing transactions. The alleged intentional and deliberate acts are independent of the fiduciary duty owed by Bank One. Therefore, Ames's fraud action is personal in nature as defined by La. C.C.P. art. 422 and subject to a ten-year prescriptive period.
CLARIFIED IN PART ON PLAINTIFF'S REHEARING AND DEFENDANT'S REHEARING DENIED
