Judge Edwin A. Lombard.

The Appellant, Hugh Uhalt,1 seeks review of three district court judgments in the instant appeal: a January 26, 2016 judgment dismissing respondeat superior claims against Appellee, J.P. Morgan Chase & Co. f/k/a Bank One Corporation ("Bank One"); a February 4, 2016 judgment dismissing his remaining claims against Bank One; and a March 23, 2016 judgment granting an exception of res judicata of Appellee John Ohle, III ("Ohle"). Finding that the judgment of the district court granting Ohle's exception of res judicata is neither manifestly erroneous nor legally incorrect, we affirm. Moreover, pursuant to our de novo review, we find that there are no genuine issues of material of fact precluding the granting of Bank One's respective motions for summary judgment. Lastly, Bank One's Answer to Appeal is denied as moot.

FACTS AND PROCEDURAL HISTORY

The facts of this matter were previously set forth in Ames v. Ohle, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, as follows:

Ames v. Ohle, 11-1540, pp. 1-5 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 389-90, decision clarified on reh'g (July 11, 2012), writ denied, 12-1832 (La. 11/9/12), 100 So.3d 837.

In the above-referenced appeal, Mrs. Ames sought review of the district court's grant of Bank One's exception of prescription. We reversed in part the portion of the district court's judgment "sustaining Bank One's exception of prescription as to her [Mrs. Ames's] claim for fraud" and remanded for further proceedings. In all other respects, the grant of the exception of prescription was affirmed. On rehearing, we clarified that Mrs. Ames's fraud claim "is personal in nature" and is subject to a ten-year prescriptive period. Id.

Subsequently, Ohle filed exceptions of prescription and res judicata. The district court granted the exception of res judicata dismissing Mrs. Ames's claims against Ohle, with prejudice. Bank One also filed a motion asserting that it was entitled to summary judgment on the following issues: not being a proper party defendant, respondeat superior, fraud, and civil conspiracy. The district court ultimately granted Bank One's motion for summary judgment in full.

Mr. Uhalt timely filed the instant appeal. He raises four assignments of error:

Exception of Res Judicata

In his first assignment of error, Mr. Uhalt argues that his claims of fraud against Ohle are not barred by the exception of res judicata and the terms of the 2003 Settlement Agreement. He avers that the Settlement Agreement was only applicable to "all matters disclosed;" however, the claims at issue were unknown to Mrs. Ames at the time she executed the Settlement Agreement. Ohle, according to Mr. Uhalt, failed to meet his burden of showing that the Settlement Agreement barred the instant claims. He further asserts that it is undisputed that Ohle "concealed the information" underlying Mrs. Ames's petition from both her and her attorney, John Wogan, when the Settlement Agreement was created. Her petition raises claims that she learned of after entering into the Settlement Agreement, during the course of Ohle's indictment and federal criminal proceedings, according to Mr. Uhalt. Mr. Uhalt further argues that in addition to its fraud claims against Ohle, Mrs. Ames did not learn of Bank One's misconduct until after the Settlement Agreement was executed.

Moreover, Mr. Uhalt asserts that even if the Settlement Agreement is determined to be applicable to the issues raised in Mrs. Ames's Petition, she was fraudulently induced by Ohle into signing the Settlement Agreement. Thus, the contract may be vitiated by fraud, he contends. Tate v. Woman's Hosp. Found., 10-425, p. 5 (La. 1/19/11), 56 So.3d 194, 198; La. Civ. Code art. 1948. He also argues that Bank One is precluded from relying on the Settlement Agreement because neither Bank One nor any of its affiliated entities were released.

Appellate courts review of a peremptory exception of res judicata "to determine if the trial court's decision is legally correct or incorrect." BBCL Enterprises, LLC v. Am. Alternative Ins. Corp., 15-0469, p. 3 (La.App. 4 Cir. 2/3/16), 187 So.3d 65, 67 (quoting Myers v. Nat'l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210. Additionally, "[w]e review factual issues relating to an exception of res judicata on a manifest error/clearly wrong basis." Id. (quoting Countrywide Home Loans Servicing, LP v. Thomas, 12-1304, p. 3 (La.App. 4 Cir. 3/20/13), 113 So.3d 355, 357).

We note that at the time the parties entered into the Settlement Agreement, Ohle was still the trustee of the Trust. He resigned from that position as a condition of the Settlement Agreement. In addition to the Settlement Agreement, a consent judgment was later issued by the district court. Furthermore, Mrs. Ames was represented by counsel and acting under the advice of her counsel when she signed the Settlement Agreement. Ohle asserts that despite still being the trustee, he did not retain a position of influence or trust over Mrs. Ames as the parties were adversaries at that juncture. The Settlement Agreement, he argues, is all inclusive covering all of his actions up to the date that the Settlement Agreement was executed.

The district court explained during the January 15, 2016 hearings that it was granting the exception because the parties entered into a global release and that the Settlement Agreement resulted from the parties "no longer having a relationship of trust."

We further note that at said hearing, counsel for Mr. Uhalt admitted that the Settlement Agreement was indeed a global release. The Settlement Agreement states that Mr. and Mrs. Ames agreed to:

Moreover, the 2004 Consent Judgment states in pertinent part that:

"A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised." La. Civ. Code art. 3080. Our Court has previously explained the binding nature of a compromise on those who were parties to it:

Contogouris v. Ocean Therapy Sols., LLC, 15-0472, p. 7 (La.App. 4 Cir. 1/27/16), 187 So.3d 18, 22, writ denied, 16-0367 (La. 4/15/16), 191 So.3d 591.

Based upon our review of the Settlement Agreement, which we read in pari materia with the Consent Judgment, we find that the district court did not err in granting Ohle's exception of res judicata. The wording of the Settlement Agreement lucidly states that Ohle is released of liability for claims regardless of whether they were known of when the settlement was executed. This wording precludes Mr. Uhalt's argument that Mrs. Ames later learned of additional misconduct committed by Ohle.

Regarding Mr. Uhalt's argument involving the accounting provision in the Consent Judgment, the record reveals that Mrs. Ames and her counsel, Mr. Wogan, were aware of questionable transactions that appeared in the provided accounting, but chose not to inquire about them prior to entering into the Settlement Agreement.7

Mr. Wogan testified that a CPA firm reviewed the final accounting of the Trust. He further testified that he had reservations about the documentation that Ohle provided prior to executing the Settlement Agreement, and that he advised Mrs. Ames of this. He further relayed being suspicious of Ohle fabricating statements, and being dissatisfied with the sufficiency of documentation he had received in order to properly advise Mrs. Ames on the Settlement Agreement and the Consent Judgment. He testified that he advised Mrs. Ames of his reservations and her options. It was their joint decision to enter into both the Settlement Agreement and the Consent Judgment and to not pursue further investigation, according to Mr. Wogan.

As Mr. Uhalt maintains, consent may be vitiated by fraud, which is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Tate, 10-0425, p. 5, 56 So.3d at 198 (citations omitted). However, despite Ohle's failure to be forthcoming, we do not find that his omissions resulted in an unjust advantage for himself or caused a loss or inconvenience to Mrs. Ames, as he was responsible for the mismanagement of the funds from the Trust evident in the accounting, regardless of whether he benefitted from unexplained transactions. Thus, we find that the district court properly determined that the Settlement Agreement and Consent Judgment formed a valid compromise precluding Mr. Uhalt from pursuing additional claims against Ohle. This assignment of error is without merit.

Remaining Issues Raised on Summary Judgment and Standard of Review

Mr. Uhalt's remaining assignments of error involve the district court's grant of summary judgment on whether: Ohle was an employee of Bank One; respondeat superior applies; and Bank One committed direct fraud.

Pursuant to La. Code Civ. Proc. art. 966(A)(2), a motion for summary judgment is designed to secure the just, speedy, and inexpensive determination of an action. A motion for summary judgment shall be granted when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover does not bear the burden of proof at trial on the issue before the court, the mover need only point out an absence of factual support for one or more elements of the adverse party's claim, action, or defense. La. Code Civ. Proc. art. 966 (D)(1). The burden then shifts to the adverse party "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. Code Civ. Proc. art. 966 (D)(1). If the adverse party fails to establish that a genuine issue of material fact exists, the mover is entitled to summary judgment as a matter of law. Id. Appellate courts review summary judgments de novo using the same standard that the district court applies: determining whether a genuine issue of material fact exists. Encalade v. A.H.G. Sols., LLC, 16-0357, p. 9 (La.App. 4 Cir. 11/16/16), 204 So.3d 661, 666 (citations omitted). In the instant matter, Bank One, the defendant in the matter, did not carry the burden of proof at trial on these claims; thus, it need only to point out an absence of factual support for one or more elements of the adverse party's claim, action, or defense.

Ohle's Employment and the Respondeat Superior Claim

We will combine our discussion of Mr. Uhalt's second and third assignments of error as both involve whether an employment relationship existed between Ohle and Bank One.

Mr. Uhalt avers that Ohle was an employee of Bank One, and it is a proper defendant in the instant matter. Thus, he argues the district court erred in granting Bank One's motion for summary judgment on the issue of it being a proper party in this matter.

He further argues that the district court erred in granting Bank One's motion for summary judgment finding that Bank One was not vicariously liable for Ohle's fraud. He maintains that there is a genuine issue of material fact as to whether Bank One benefitted from Ohle's misconduct. He argues that the district court erroneously held that Bank One did not benefit from Ohle's misconduct because Bank One benefitted by having Ohle, and other employees, target high-asset clients — like Mrs. Ames — to propose wealth management strategies in order for it to have assets to manage. Mr. Uhalt relies on the testimony of Mike Reed, a corporate representative of Bank One, who testified that Ohle's compensation was based upon a measurement of the total assets he secured for any of Bank One's entities. Mr. Uhalt specifies ways that Bank One benefited from Ohle's actions:

Ohle, Mr. Uhalt argues, was supported by Bank One in his endeavors as it allowed him to host meetings for the Ames family at Bank One; did not bill Mrs. Ames for work done by Bank One; allowed Ohle to administer the Trust from Bank One; and used its letterhead and other materials while working on projects for the Ames family.

Although Mr. Uhalt emphasizes that the district court reasoned that Bank One did not benefit from Ohle's actions, our focus is on the Judgment itself.8 Thus, the issues presented for our de novo review are whether there is a genuine issue of material fact as to whether Ohle was a Bank One employee and whether Bank One is liable under the respondeat superior doctrine for his fraudulent actions.

Bank One's motion for summary judgment was supported by a substantial amount of testimony that Ohle was never an employee of Bank One, but of BOIA. His direct supervisor at BOIA, Harry Dye, III, testified to this fact, as well as Peter Atwater, the CEO of BOIA. Additionally, Joni McCabe, a compliance manager at Bank One, also testified that BOIA is a subsidiary of Bank One. There is also documentation in the record reflecting BOIA is a separate corporation, such as a form from the Ohio Secretary of State showing BOIA amended its Articles of Incorporation. Moreover, although the November 23, 1999 offer letter to Ohle is on Bank One stationery, and references Bank One, the letter specifies BOIA as the entity for which Ohle would work: "John, we look forward to you playing an important role within Banc One Investment Advisors." Lastly and most conclusive, BOIA's name appears on Ohle's W-2s. In light of the aforementioned evidence, we conclude that BOIA was Ohle's employer. Therefore, there is no genuine issue of material fact as to whether Bank One was a proper party defendant.

Furthermore, regarding Mr. Uhalt's respondeat superior claim, we recognize that it is the employer's right to control an employee's actions that is the linchpin of determining vicarious liability for an employee's tortious acts. Recently, in Knoten v. Westbrook, 14-0892, pp.13-14 (La.App. 4 Cir. 5/18/16), 193 So.3d 380, reh'g denied (05/31/16), writ denied, 16-1260 (La. 10/28/16), 208 So.3d 890 we explained:

As discussed above, however, we do not find that Bank One was Ohle's employer. Furthermore, as the district court correctly noted, pursuant to Louisiana law a parent company, such as Bank One, is not liable for the acts of its subsidiaries. There is an exception when there is proof that "the parent company knew of and approved those actions." Andry v. Murphy Oil, U.S.A., Inc., 05-0126, p. 15 (La.App. 4 Cir. 6/14/06), 935 So.2d 239, 249-250 [subsequent procedural history and citations omitted]. In order to establish the liability of the parent company, a plaintiff must demonstrate that the parent company controlled the operations of the subsidiary:

James S. Holliday, Jr., Rick J. Norman, and Dale R. Baringer, 1 La. Prac. Corp. § 9:180 (2016-2017 ed.)(fn. added).

We find no evidence in the record of Bank One controlling BOIA, nor of the two entities acting as a single business enterprise. Moreover, there is no evidence of BOIA knowing of Ohle's involvement in the Trust or his wrongdoing, until just prior to his suspension. Indeed, Mr. and Mrs. Ames retained Ohle's services outside of his employment with both KPMG, initially, and BOIA.

The majority of the work Ohle performed for Mrs. Ames involved the Trust, but Ohle's BOIA employment was not trust-related. Indeed, Anthony Ames, Mrs. Ames's husband, testified as to how he and his wife paid Ohle directly by check for his investment advising services even while he was employed by KPMG because the services Ohle provided were outside the scope of his KPMG employment. Similarly, as Mr. Ames further testified, when Ohle transitioned to BOIA, he received annual payments directly from the Trust pursuant to its terms. The only manner in which BOIA became entangled in Ohle's deception of Mrs. Ames is as a result of his embezzlement of funds from the Trust to invest in BOIA's HOMER tax-strategy.

Violating both his fiduciary duties as a trustee and BOIA's Code of Conduct, Ohle siphoned-off money from the Trust while simultaneously plotting to deprive Bank One of some of its fees from the sale. Ohle did establish an irrevocable trust for Mrs. Ames at another Bank One entity, but said trust had a separate advisor and none of the claims in the instant matter involve that trust.

Mr. Dye testified that as a BOIA employee, he managed four different groups: ISG, financial planning services, insurance, and business development. He explained that ISG's purpose was to assist clients with financial planning services and estate planning. Trust services were not provided by ISG.

David Kundert, a BOIA executive, testified that he interviewed Ohle for his ISG position, and Ohle did not divulge his position as trustee of the Trust. Ohle also did not disclose his trustee position on the documentation he submitted to BOIA as a new employee, which asked for all conflicts of interest to be listed.10

Bank One has demonstrated that Ohle was not its employee and that it did not exercise control over Ohle. Additionally, Mr. Uhalt does not present law supporting how a parent company, such as Bank One, can be vicariously liable for the actions of its subsidiary's employee. Considering that a parent company is not liable for the acts of its subsidiaries, we further find no precedent for holding that a parent company can be vicariously liable for the actions of an employee of its subsidiary. In light of the foregoing, we find that there is no genuine issue of material fact as to whether Bank One is a proper party defendant in this matter, nor is it responsible for Ohle's actions under the doctrine of respondeat superior.

Fraud

In his final assignment of error, Mr. Uhalt avers that Bank One engaged in fraudulent concealment to prevent Bank One customers, such as Mrs. Ames, from discovering its alleged self-dealing actions. Mr. Uhalt contends that the fraudulent concealment here is based on a special fiduciary duty Bank One owes to Mrs. Ames, i.e., a relationship between a client and an advisor providing investment advice. Greene v. Gulf Coast Bank, 593 So.2d 630, 632 (La. 1992).

Mr. Uhalt further argues that a duty exists based on the testimony of his compliance expert, Vivian Velazquez, that section 206 of the Investment Advisers Act of 1940, the anti-fraud provision, was violated. Under the Act, he argues that advisors have a duty to their clients, including acting in the best interest of their clients and an obligation of using reasonable care to avoid misleading clients. He also argues that ample evidence shows that Bank One knew of Ohle's promotion of Carpe Diem to Mrs. Ames by January 2002, at least. He asserts that Ohle and Bank One entered into a settlement agreement wherein both parties were precluded from informing Mrs. Ames or any other Bank One clients of Ohle's wrongdoing.11

Mr. Uhalt argues that Bank One failed to contact aggrieved investors to alert them of Ohle's actions. He maintains that the following genuine issues of material fact exist such as: whether a warning by Bank One to Mrs. Ames shortly after she invested in Carpe Diem could have prevented the losses incurred by Bank One's failure to act; and whether Bank One's actions also led Mrs. Ames to incur losses that continued after Ohle was no longer employed with Bank One for which Bank One is liable.

Fraud is defined as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other" and can result from silence or inaction. La. Civ. Code. art. 1953. Fraud need only be proven by a preponderance of the evidence and may be established by circumstantial evidence. La. Civ. Code art. 1957.

Two elements must be proven to establish fraud: an intent to defraud and resulting damage. Lomont v. Bennett, 14-2483, p. 11-12 (La. 6/30/15), 172 So.3d 620, 629, cert. denied sub nom. Myer-Bennett v. Lomont, ___ U.S. ___, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016) [citations omitted]. Furthermore, while "fraud may be found from silence, there must be a duty to speak." Id. quoting Greene v. Gulf Coast Bank, 593 So.2d 630, 632 (La. 1992). "Louisiana law recognizes that the refusal to speak, in the face of an obligation to do so, is not merely unfair but is fraudulent." Id., quoting Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1383 (La.1990).

Mr. Uhalt relies upon the Supreme Court's holding in Greene to support his position that Bank One and Mrs. Ames had a fiduciary relationship that warranted it to warn her of Ohle's fraudulent actions. In Greene, the Supreme Court explained that while a "bank and depositor have a debtor-creditor relationship with no independent duty of care imposed on the bank," "certain special circumstances, such as a fiduciary relationship between the bank and depositor, will give rise to a duty. Greene, 593 So.2d at 632. Thus, Mr. Uhalt maintains that a fiduciary relationship existed between Bank One and Mrs. Ames, which was that of an advisor providing investment advice to a client.

The facts of this matter do not reflect that a special fiduciary relationship existed between the parties. Ohle began and continued providing Mrs. Ames investment advice in a personal capacity, never as an employee of BOIA. Ohle was hired to prepare financial statements and wealth-transfer plans for high-net worth clients. His job did not encompass providing investment advice to clients; and the division within which he worked at ISG was not the advisory arm of Bank One, as testified to by Mr. Dye and Mr. Atwater. They further testified that BOIA has non-ISG employees that provided investment advice and further that Bank One has a separate entity that provided trust services. Therefore, Bank One would not be liable for investment services that Ohle provided to the Ames outside of his BOIA employment.

Mr. Dye testified that he learned of Ohle's promotion of Carpe Diem to another client in January 2002, which was a violation of one of Mr. Dye's directives to him. Ohle was suspended as a result of the internal investigation, which led to an inquiry of Ohle's relationship with the Ames family. Nevertheless, Ohle refused to comply with the investigation, so neither BOIA nor Bank One learned the details of what transpired between Ohle and Mrs. Ames.

Lastly, as the district court noted, Mrs. Ames was unable to be deposed due to her interdiction; thus, there is no testimony as to what her relationship with Bank One was, nor what representations or omissions were made to her by Bank One and/or its employees upon which she relied. Finding no evidence of a fiduciary relationship, or an intent to defraud, we conclude that there is no genuine issue of material fact as to whether Bank One fraudulently concealed Ohle's actions from Mrs. Ames. This assignment of error is without merit.

Answer to the Appeal

Bank One avers that its answer to the appeal was filed out of an abundance of caution, although it "does not seek modification, revision, or reversal" of the judgment below, and raises arguments that are all "supported by the record." La. Code Civ. Proc. art. 2133(B); e.g. Slaughter v. La. State Employees' Ret. Sys., 15-324 (La. 10/14/15), 180 So.3d 279, 281-82; Johno v. Doe, 15-737 (La. App. 4 Cir. 3/9/16), 187 So.3d 581, 584. It avers that in addition to the district court's Reasons for Judgment, the district court's February 4, 2016 judgment should be affirmed for additional reasons. However, having affirmed the judgments of the district court, the Answer to Appeal is moot as it seeks no further relief.

DECREE

For the foregoing reasons, the district court judgments of January 26, 2016, February 4, 2016, and March 23, 2016, in favor of J.P. Morgan Chase & Co. f/k/a Bank One Corporation, and John B. Ohle, III, respectively, are affirmed. The Answer to Appeal is denied as moot.

AFFIRMED; ANSWER TO APPEAL DENIED AS MOOT.

LOVE, J., CONCURS IN PART AND DISSENTS IN PART.

LEDET, J., DISSENTING IN PART WITH REASONS.

LOVE, J., CONCURS IN PART AND DISSENTS IN PART.

I concur with the majority's finding that the trial court did not err by granting Mr. Ohle's exception of res judicata. However, I respectfully dissent for the reasons assigned by Judge Ledet.

LEDET, J., DISSENTING IN PART WITH REASONS.

Although I agree with the majority that the trial court did not err in granting Mr. Ohle's exception of res judicata, I disagree with the majority's findings on the other two issues — respondeat superior and fraud.

RESPONDEAT SUPERIOR

The trial court's ruling on the respondeat superior issue has three parts: (i) whether Bank One was Mr. Ohle's employer; (ii) whether Bank One and Banc One Investment Advisors Corporation ("BOIA") were a "single business enterprise;" and (iii) whether, for purposes of imposing vicarious liability for the intentional torts at issue of fraud and conspiracy to defraud, Mr. Ohle's acts benefited Bank One and thus were within the scope of his employment. As explained below, I would find the trial court erred in granting summary judgment on any of these three issues.

Bank One's employer status

The majority characterizes the evidence supporting a finding that Mr. Ohle was not Bank One's employee as "substantial." Nonetheless, as Mr. Uhalt points out, "the record also contains ample evidence showing the opposite, that Bank One was the entity that hired Ohle, the entity that issued Employee Requisition forms for Ohle's position, the entity that investigated Ohle and contemporaneously laid explicit claim to his allegiance as an employee, and the entity that ultimately settled employment disputes with and terminated Ohle."

Weighing factual evidence is inappropriate on summary judgment.1 The question of employment status is a factual one.2 Given the evidence presented, I would find there are material factual issues whether Bank One was Mr. Ohle's employer. Regardless, Mr. Ohle could have had dual employment.3

Single business enterprise issue

Even assuming, arguendo, that BOIA — not Bank One — was Mr. Ohle's employer, it must be determined whether, as Mr. Uhalt contends, Bank One and BOIA are a single business enterprise and thus both subject to liability. Mr. Uhalt contends that the record is replete "with documents and testimony showing a potential alter ego relationship between Bank One and BOIA that would render any distinction between the two meaningless." Rejecting his contention, the majority states that "[w]e find no evidence in the record ... of the two entities acting as a single business enterprise." I disagree. The question of whether two or more entities constitute a single business enterprise generally is a factual one for the trier of fact to resolve.4

In this case, the record contains sufficient evidence on this issue to present a genuine issue of material fact, precluding summary judgment.

Benefit to Bank One from Mr. Ohle's Misconduct

Before rendering a final judgment dismissing Bank One, the trial court granted a partial summary judgment in Bank One's favor on Mr. Uhalt's respondeat superior claim. The trial court's reason for doing so was that Bank One did not benefit from Mr. Ohle's misconduct and thus could not be liable for his intentional torts. Whether Bank One benefitted from Mr. Ohle's misconduct is a factual issue. As majority acknowledges, Bank One had a trust department. Was not Bank One motivated to hire Ohle because he was trustee of the Ames' Trust? I would find there is a genuine issue of material fact on this issue of whether Bank One benefitted from Mr. Ohle's misconduct, precluding summary judgment.

FRAUD

In addressing this issue, the majority concludes that "there is no genuine issue of material fact as to whether Bank One fraudulently concealed Ohle's actions from Mrs. Ames." Both the majority and the trial court cite the absence of testimony from Mrs. Ames as a basis for finding that summary judgment on the fraud issue was appropriate. The trial court, in its reasons for judgment, noted that "[t]he original plaintiff, Mrs. Ames has been interdicted and has never been deposed. She is the only person who would have been able to testify as to what she was told and what she relied upon in making financial decisions." The lack of direct evidence of fraud, however, is not dispositive. Fraud may be proven through circumstantial evidence. Lomont v. Bennett, 14-2483, p. 12 (La. 6/30/15), 172 So.3d 620, 629. "Circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed." Id.

The trial court further reasoned that it could not find that Bank One had "a duty to notify an investor such as Mrs. Ames of potential problems with investment vehicles that did not come through the bank." As this reasoning implies, the trial court's finding on the fraud issue was intertwined with its finding that Bank One had no respondeat superior liability for Mr. Ohle's actions. Because I would find summary judgment inappropriate on the respondeat superior liability issue, I likewise would find it inappropriate on the fraud issue.

In its answer to the appeal, Bank One argues that Mr. Uhalt's claims are prescribed. In our earlier opinion in this case, we rejected, on rehearing, Bank One's argument that allowing Ms. Ames' fraud claims to go forward would circumvent La. R.S. 6:1124, which provides a one-year prescriptive period for a bank's breach of fiduciary duties. Ames v. Ohle, 11-1540, p. 18 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 397. In so doing, we reasoned as follows:

Id. Thus, we have already determined that Mrs. Ames' (now Mr. Uhalt's) claims for fraud and conspiracy to commit fraud are personal claims subject to a ten-year prescriptive period.

For the above reasons, I dissent in part.