PETTIGREW, J.
In this action for damages, plaintiff-appellant, individually, and in his capacity as the dative testamentary executor of the estate of his late mother, filed suit naming
The present litigation is yet another lawsuit arising out of the 2001 murder-suicide of Emory Lea Graves, Sr. and his wife, Sylvia Antonia Acosta Kennedy Graves. See In re Succession of Graves, 2007-2180 (La.App. 1 Cir. 3/12/08), 985 So.2d 140, writ denied, 2008-0799 (La.6/6/08), 983 So.2d 919; Kennedy-Fagan v. Estate of Graves, 2007-1062 (La.App. 1 Cir. 7/21/08), 993 So.2d 255, writ denied, 2008-2079 (La.11/10/08), 996 So.2d 1073.
Sylvia Antonia Acosta Kennedy Graves, decedent herein ("decedent"), died testate as a result of a murder-suicide on or about July 21, 2001. The decedent left two legatees, who were children from her first marriage — a daughter, defendant Julie Esther Kennedy-Fagan ("Julie"), and a son, plaintiff-appellant, Richard Vincent Kennedy ("Richard"). According to the terms of the decedent's will, Julie was named as executrix of the estate. Due to her apparent failure to properly administer and liquidate decedent's estate, Julie was removed from her duties as testamentary executrix by order of the trial court. In Julie's stead, her brother and co-heir, Richard, was appointed by the trial court to serve as the dative testamentary executor.
On January 3, 2006, Richard instituted the present tort suit, appearing individually, and in his capacity as executor of the estate. Based upon the allegations of his petition, Richard seeks to recover estate assets, monies, and damages resulting from the actions and/or inactions of the defendants named herein. Following a denial of his motion for a partial summary judgment and a grant of summary judgment in favor of the bank and its employee dismissing his claims against said defendants, Richard now appeals. We affirm in part, reverse in part, and remand.
Richard alleged in the instant petition that his sister Julie retained attorneys T. Lynn Witt-Stamps and her husband, attorney J. Jackson Stamps,
Richard alleged in the instant action for damages that during Julie's administration of the estate, and while attorneys T. Lynn Witt-Stamps, J. Jackson Stamps (collectively, "Witt and Stamps"), and later, Thomas Schafer, III, provided legal representation to the estate, said defendants were allowed to enter the safety deposit box at the Bank without obtaining court approval and without even signing signature cards for the said safety deposit box. It was also alleged that during one of these unrecorded entries into the estate's safety deposit box, the valuable pieces of estate jewelry were removed leaving only "worthless costume jewelry and paste."
Additionally, Richard alleged that Julie authorized Mrs. Witt-Stamps to sign checks on the decedent's bank accounts and withdraw over $30,000.00 in attorney fees from said accounts without court approval or notice and without the court's knowledge.
Richard also alleged that the Bank knew or should have known of the actions of Julie's attorney, Mrs. Witt-Stamps, as the Bank kept banking records in the normal course of its business. Additionally, it was alleged that the Bank knew or should have known of the close relationship between its employee, Ms. Henderson, Julie, and Mrs. Witt-Stamps, and should have closely monitored the decedent's bank accounts.
Richard further alleged that Julie's subsequent attorney, Mr. Schafer, knew or should have known that prior counsel, Witt and Stamps, had removed funds from the decedent's accounts without court approval, as records of said transactions and letters from Julie "authorizing" withdrawals by Mrs. Witt-Stamps were later discovered among Mr. Schafer's files.
It was alleged that the aforementioned unauthorized acts were effectuated during Julie's administration of decedent's estate with the apparent assistance of Ms. Henderson, in her official capacity as a bank officer with the Bank, thereby rendering the Bank vicariously liable.
On April 8, 2010, Richard filed a motion for partial summary judgment against the Bank and Ms. Henderson for estate funds that were illegally dispersed to Witt and Stamps by the Bank and Ms. Henderson. Richard also sought a partial summary judgment on the issue of liability against these same defendants for the jewelry that was allegedly stolen from the safety deposit box at the Bank.
In response, the Bank and Ms. Henderson filed a cross-motion for summary judgment and claimed that the Bank was not liable because it was allegedly authorized by Julie, its "customer" and executrix of the estate, to issue 11 cashier's checks signed by Ms. Henderson for funeral expenses, legal fees, and taxes. The Bank argued that since Julie had consented to its drafting of the cashier's checks and given authorization for the estate's attorneys to enter the safety deposit box, the Bank was only honoring the wishes of its customer and could not be held liable.
Following a hearing on June 29, 2010, the trial court, for reasons orally assigned, denied Richard's partial motion for summary judgment against the Bank and Ms. Henderson, and dismissed Richard's claims against these defendants. Although the trial court specifically rejected the arguments put forth by the Bank regarding
In connection with his appeal in this matter, Richard presents the following issues for review and disposition by this court:
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, 2008-2154, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Aucoin v. Rochel, 2008-1180, p. 5 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009-0122 (La.3/27/09), 5 So.3d 143.
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether the mover-appellant is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La. App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830.
The initial issue raised by Richard is whether the trial court erred in failing to apply the legal presumption of liability against the Bank. Richard asserts the Bank was a compensated depositary that failed to account for deposits under its exclusive care, custody, and control.
It is evident from the record that decedent had several accounts at the Bank prior to her death.
The record further reflects that on August 14, 2001, Julie opened a checking account (No. 390-232) at the Bank entitled "Succession of Sylvia Antonia Acosta Kennedy-Graves" (hereinafter, "the Decedent's Succession Account"). Julie was the only authorized signatory on the Decedent's Succession Account. Through a facsimile transmission addressed "To Whom It May Concern," and sent the following day, August 15, 2001, at approximately 6 p.m., Julie advised the Bank of her appointment as executrix of decedent's estate. In connection therewith, Julie forwarded copies of decedent's death certificate and letters testamentary. In duplicate correspondence alternately referencing the Kennedy Succession account (No. 344-117) and the Joint Account (No. 365-572), Julie requested that funds from said accounts be transferred to the Decedent's Succession Account.
In her deposition, Ms. Henderson testified that she had been employed by the Bank for 28 years. Ms. Henderson also admitted that although she had no training in Louisiana succession law, and had not attended any seminars involving succession law, she was generally aware that a succession representative needed to be court-appointed. Ms. Henderson denied having any knowledge as to what is required for an administrator to carry out his or her duties with respect to bank accounts. Ms. Henderson confirmed that at Julie's direction she issued cashier's checks on the Kennedy Succession account (No. 344-117) to pay invoices submitted by attorneys Witt and Stamps. Copies of $44,275.62 in transactions processed on the Kennedy Succession account (No. 344-117) for the period July 2001 through April 2002 were attached in globo to Ms. Henderson's deposition as Exhibit "SH-8."
Through a court order signed January 15, 2002, Julie obtained authorization to pay $6,150.73 in urgent debts owed by the decedent. Said debts included payment of property taxes, flood insurance premium, safety deposit box and mail box rentals, and reimbursement of $5,533.85
In their brief to this court, the Bank and Ms. Henderson contend that Richard's claims regarding the Bank's "unauthorized" issuance of cashier's checks are barred due to application of La. R.S. 10:4-406.
The trial court clearly erred in granting summary judgment in favor of the Bank and Ms. Henderson.
The second issue raised by Richard is whether the trial court erred in failing to apply the evidentiary doctrine of res ipsa loquitur to establish through circumstantial evidence the negligence of the Bank and Ms. Henderson.
In our previous opinion in Broussard v. Voorhies, 2006-2306, p. 6 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1043, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535, a panel of this court summarized the law with respect to res ipsa loquitur and stated:
Based upon our de novo review of this matter, we conclude that application of the doctrine of res ipsa loquitur is not required given the undisputed facts of this case.
The deposition testimony of Ms. Henderson discloses that on January 14, 2002, Julie contracted on behalf of the estate and rented safety deposit box # 94 at the Bank in the name of the Succession of Sylvia Kennedy-Graves.
Ms. Henderson further stated once a person identifies himself as an authorized user, signs the access record, and produces a "guard key" for a safety deposit box, said individual is permitted to examine the contents of the safety deposit box in the privacy of the Bank "Coupon Room." Ms. Henderson stated that the Bank does not keep records as to whether customers place items in or remove items from its safety deposit boxes.
It is undisputed that the Bank and Ms. Henderson received notice of the decedent's death, of Julie's appointment as executrix, and Julie's request that the Bank "freeze" decedent's "bank accounts until disposition of the estate." It would therefore seem reasonable for the Bank to similarly deny access to a safety deposit box subsequently opened in the name of the decedent's succession pending a public inventory of it contents or further orders of the court.
Again, it was error for the trial court to grant summary judgment in favor of the Bank and Ms. Henderson.
The third issue presented by Richard is whether a bank may release funds from a deceased customer's account based solely upon the order of a succession representative. In his brief to this court, Richard cites La.Code Civ. P. art. 3301 and asserts that a succession representative must obtain court authorization prior to paying a debt of the succession.
In their appellee brief, the Bank and Ms. Henderson offer the following response:
The trial court, in its oral reasons for summary judgment, opined:
We disagree. Louisiana Code Civil Procedure art. 3301 clearly provides that "[a] succession representative may pay an estate debt only with the authorization of the court, except as provided by Articles 3224 and 3302."
The trial court clearly erred in granting summary judgment in favor of the Bank and Ms. Henderson.
The final issue raised by Richard is whether a bank may be held liable for property lost or stolen from one of its safety deposit boxes. Specifically, Richard argues that given the Bank's failure to follow proper banking procedure and protocol, the Bank is clearly liable for the loss of jewelry from its safety deposit box.
In light of our previous, undisputed findings regarding the notice received by the Bank and Ms. Henderson, we reiterate our previous holding that the Bank should have denied access to the safety deposit box subsequently opened in the name of the decedent's succession, pending a public inventory of it contents or further orders of the court.
Once again, it was error for the trial court to grant summary judgment in favor of the Bank and Ms. Henderson.
For the above and foregoing reasons, we hereby affirm the denial of the plaintiff's motion for summary judgment under our supervisory jurisdiction, rather than appellate jurisdiction, for the reason that there remain genuine issues of material fact. We nevertheless reverse the trial court's June 29, 2010 grant of summary judgment in favor of the Bank and Ms. Henderson. Accordingly, the previously dismissed claims against said defendants put forth by Richard, both individually, and in his capacity as executor of decedent's estate, are hereby reinstated. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against the defendants, Bank of Louisiana and Shirley Henderson.
McCLENDON, J., dissents in part and assigns reasons.
McCLENDON, J., dissents in part and assigns reasons.
I disagree with the majority's reversal of the summary judgment granted in favor of the bank as it pertains to the safety deposit box. The majority fails to address the clear language of LSA-R.S. 6:325 A and B, which provide:
It is a well-settled principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; Meyer & Associates, Inc. v. Coushatta Tribe of Louisiana, 07-2256, p. 7 (La.9/23/08), 992 So.2d 446, 451.
Therefore, under the plain language of the statute, once the letters testamentary confirming Julie Kennedy Fagan as the executrix of the Succession of Sylvia Antonia Acosta Kennedy Graves were presented to the bank, said letters constituted proper authority and afforded full protection to the bank as to any heir having rights or claims to property of the decedent in the bank's safety deposit box.
Further, LSA-R.S. 6:328 provides that "[a] bank shall establish reasonable security procedures to ensure that only authorized persons shall have access to safety deposit boxes." Reasonable security procedures include "requiring that the person seeking access present the key to the safety deposit box he seeks to enter," which was done in this matter. Not only did Ms. Witt-Stamps present a key to the safety deposit box, but the executrix of the succession also faxed written authorization to the bank for Ms. Witt-Stamps to access said safety deposit box. Clearly, while there may be liability with regard to the loss of property from the safety deposit box, any actions arising from said loss are more properly directed against the executrix rather than the bank.
Accordingly, I respectfully dissent in part.
