Gaudin & Gaudin, a Professional Law Corporation Versus Iberiabank Corporation

GAUDIN & GAUDIN, A PROFESSIONAL NO. 19-CA-459
LAW CORPORATION
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
IBERIABANK CORPORATION
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 762-910, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

March 17, 2020

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and John J. Molaison, Jr.

AFFIRMED.
SMC
JGG
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
GAUDIN & GAUDIN, A PROFESSIONAL LAW CORPORATION
James E. Shields, Sr.

COUNSEL FOR DEFENDANT/APPELLEE,
IBERIABANK CORPORATION
Pauline F. Hardin
Graham H. Ryan

CHEHARDY, C.J.

Plaintiff, Gaudin & Gaudin, A Professional Law Corporation (“Gaudin”),

filed suit against defendant, IBERIABANK Corporation (“IberiaBank”), seeking to

recover amounts on forged and stolen third-party checks presented to the bank for

payment by a Gaudin employee not authorized to receive the funds. The bank

cashed the forged checks and the employee retained the money. In addition to

claims asserted against IberiaBank under the Louisiana Uniform Commercial Code

(“LUCC”), Gaudin alleged, inter alia, causes of action for fraud, fraudulent

concealment, and fraudulent conversion. Gaudin appeals the trial court’s March

14, 2019 judgment granting IberiaBank’s motion for summary judgment

dismissing all of Gaudin’s claims, with prejudice, on the basis that Gaudin’s claims

are prescribed. For the following reasons, we affirm the trial court’s judgment.

Factual Background and Procedural History

Gaudin is a law corporation located in Gretna, Louisiana. Gaudin began

banking at IberiaBank in 2011 at its 4th Street branch, situated directly across the

street from Gaudin’s law office. As required under Louisiana law, Gaudin opened

a new IOLTA checking account at IberiaBank for each calendar year.1

Specifically, Gaudin opened a 2014 IOLTA checking account, a 2015 IOLTA

checking account, and a 2016 IOLTA checking account (the “Gaudin Accounts”),

by executing account agreements with IberiaBank. All three account agreements

were executed by Pierre Gaudin, Sr., Pierre Gaudin, Jr., and Hillary Gaudin, each

of whom were authorized signers on the Gaudin Accounts. Pursuant to the

respective account agreements, only one signature of an “authorized signer” or a

stamped signature was required to make a withdraw from the Gaudin Accounts.

1
An IOLTA (Interest on Lawyers Trust Account) “is a pooled, interest-bearing client trust account
for funds of clients or third parties which are nominal in amount or to be held for such a short period of
time that the funds would not be expected to earn income for the client or third person in excess of the
costs incurred to secure such income.” See Rules of Professional Conduct, Rule 1.15(g).

19-CA-459 1

By executing the account agreements, Gaudin thereby agreed to the terms

and conditions of the “Deposit Account Agreement,” which imposed a duty to

review its monthly statements and to report any unauthorized transaction within

thirty days from the date the statement first became available. It is undisputed that

Gaudin received copies of the Deposit Account Agreement. Gaudin also

acknowledged that it received all of the monthly statements of account sent by

IberiaBank showing payment of items on the Gaudin Accounts at issue. The

account statements included the item number, amount, and date of payment

sufficient to identify each of the items paid in a particular month.

Third party defendant, Lainie Collins, was employed by Gaudin as a

bookkeeper from 2009 until her termination in 2016. As Gaudin’s bookkeeper,

Ms. Collins was responsible for Gaudin’s banking activity and was entrusted with

control over Gaudin’s checkbook. She was authorized to receive and open

Gaudin’s monthly statements for the Gaudin Accounts and was responsible for

notifying her superiors at Gaudin of any irregularities detected. It is undisputed

that Ms. Collins’ receipt and review of Gaudin’s account statements were not

supervised. The account agreements authorized the use of a “facsimile” stamp of

Pierre Gaudin, Sr.’s signature, which was kept in his office desk. Ms. Collins had

regular access to Mr. Gaudin’s office and desk.

In March 2016, Gaudin received a notice from IberiaBank that its 2016

IOLTA account was overdrawn, which prompted Gaudin to investigate the

overdraft. According to Pierre Gaudin, Sr., “there were duplicate checks, which

had been evidently made to the client twice, what [the client] was supposed to

[receive] from the settlement, and then a duplicate check was produced and forged

with [Pierre Gaudin, Sr.’s] name and the client’s name and taken to the bank and

cashed.” Video surveillance from IberiaBank revealed that Gaudin’s employee,

Lainie Collins, was the person presenting the stolen checks to IberiaBank and

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receiving the money once cashed. IberiaBank contends, and Gaudin does not

dispute, that Ms. Collins stole, embezzled, or converted checks from Gaudin

Accounts, made them payable to firm clients after case settlements, forged the

payee’s endorsements on the back of the checks, presented the “double forged

checks” at IberiaBank and other banks for payment, and then retained the cash paid

on the forged checks drawn on Gaudin Accounts. Ms. Collins’ employment with

Gaudin was ultimately terminated in 2016 because “she was stealing money” from

the firm.2

In late April 2016, Gaudin notified IberiaBank that it had discovered

numerous allegedly unauthorized transactions relating specifically to the 2016

IOLTA account. IberiaBank’s first notice of any specific unauthorized

transactions involving Gaudin’s 2014 and 2015 IOLTA accounts occurred on

October 31, 2017, when IberiaBank received and reviewed Gaudin’s responses to

discovery.

On July 15, 2016, Gaudin filed a petition for damages alleging, inter alia,

that IberiaBank was responsible for negligently cashing several fraudulent third

party checks written on the Gaudin Accounts between January 1, 2014 and April

2016.3 According to Gaudin, the stolen checks bore the forged signatures of the

authorized signers and were presented to the bank for payment by Gaudin

employees not authorized to receive the funds. Gaudin averred that IberiaBank

made no effort to authenticate the validity of the checks or to verify the identity of

the payees on the checks. Gaudin amended its petition for damages to add

2
To date, Gaudin has not filed suit against Ms. Collins nor has Gaudin notified authorities of her
conduct. According to Gaudin, once it notified IberiaBank of the theft and illegal transactions, the duty
and obligation to report the matter to the proper authorities fell to IberiaBank.
3
Gaudin contends that IberiaBank is liable for 153 checks written on the Gaudin Accounts
between 2014 and 2016.

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additional defendants—the “unknown employees of IberiaBank” and IberiaBank’s

insurer—and additional causes of action, including breach of contract and fraud.

In response to Gaudin’s original and first amended petitions, IberiaBank

filed peremptory exceptions of prescription and no cause of action, and

alternatively, a dilatory exception of vagueness and ambiguity.4 IberiaBank argued

that Gaudin had no cause of action apart from the LUCC and that, pursuant to La.

R.S. 10:3–420, all claims asserted by Gaudin arising from actions that occurred

prior to July 15, 2015, had prescribed as a matter of law. IberiaBank further

argued that it was relieved of all liability to Gaudin pursuant to La. R.S. 10:4–406

and under the terms of the Deposit Account Agreements, which mandated

dismissal of all claims due to Gaudin’s failure to timely review its account

statements and to report the alleged unauthorized transactions. Following a

hearing on February 9, 2017, the trial court granted IberiaBank’s dilatory exception

and ordered Gaudin to amend its petition within thirty days; IberiaBank’s

exception of prescription was continued. Additionally, the trial court stayed all

discovery in the matter until after Gaudin amended its petition.

Gaudin filed a second amended petition for damages on March 9, 2017,

adding three IberiaBank employees as defendants and adding causes of action for

fraudulent concealment and spoliation of evidence. In response, IberiaBank filed

peremptory and dilatory exceptions reasserting its prior arguments. Gaudin filed

an opposition to IberiaBank’s exceptions, as well as a motion to lift the stay of

discovery.

IberiaBank’s exceptions and Gaudin’s motion to lift the stay came for

hearing on August 9, 2017. That day, the trial judge entered judgment granting

IberiaBank’s peremptory exception of no cause of action, in part, and dismissing

4
The record shows that after being granted an extension of time to file an answer, on December
21, 2016, IberiaBank filed exceptions, affirmative defenses, an answer and a request for notice.

19-CA-459 4

all of Gaudin’s non-LUCC claims, with prejudice. Additionally, the judgment

overruled IberiaBank’s dilatory exceptions of prematurity as to spoliation and

nonconformance with La. C.C.P. art. 891. Gaudin’s motion to lift the stay of

discovery was also granted. By agreement of the parties, the trial court continued

IberiaBank’s exception of prescription until after completion of discovery.

Following the hearing, a status conference was held, wherein the trial court

imposed a discovery deadline of February 28, 2018, and scheduled the matter for

trial on August 8, 2018.

On Gaudin’s motion, and upon finding “no just reason to delay,” on October

11, 2017, the trial court ordered that the August 9, 2017 judgment dismissing all of

Gaudin’s non-LUCC claims be made final and immediately appealable. Gaudin

timely appealed and the matter was docketed accordingly.5 On January 19, 2018,

however, Gaudin filed a motion to withdraw the appeal “without prejudice due to

prematurity,” which motion this Court granted that same day. No further action

regarding the August 9, 2017 judgment was taken by Gaudin. Consequently, the

dismissal of all Gaudin’s non-LUCC claims against IberiaBank became a final,

binding judgment; only Gaudin’s claims under the LUCC remained.

Three weeks prior to the February 28, 2018 discovery cut-off date, Gaudin

filed an unopposed motion to extend the discovery deadline by 90 days, or until

May 29, 2018, which the trial court granted. On February 26, 2018, the parties

consented to a continuance of the trial and requested that a status conference with

the court be held on April 25, 2018, for purposes of scheduling a new trial date and

establishing pre-trial deadlines.

On April 6, 2018, IberiaBank filed a motion to compel against Gaudin for its

failure to timely produce the documents Gaudin was relying upon to support its

claims and calculate its damages. Following a hearing on April 24, 2018, the trial

5
The appeal was docketed as No. 17-CA-698.

19-CA-459 5

court granted IberiaBank’s motion and ordered Gaudin to produce the requested

documents within 90 days, or by July 23, 2018.

Another status conference was held on July 9, 2018, and a new scheduling

order was entered. An October 9, 2018 discovery deadline was imposed and a new

trial date was set for April 29, 2019.

After July 23, 2018 passed and Gaudin had yet to comply with the trial

court’s April 24, 2018 discovery order, IberiaBank filed a motion for sanctions,

which was scheduled for hearing on October 3, 2018. Pursuant to a motion to

continue the hearing filed by Gaudin on October 2, 2018, the trial court granted

Gaudin an additional two weeks to comply with the discovery order and reset the

hearing on IberiaBank’s motion for sanctions to October 17, 2018. At that hearing,

the trial court deferred its ruling and ordered Gaudin to produce all of the requested

documents by noon the following day. When Gaudin once again failed to comply

with the court’s order, IberiaBank filed a supplemental memorandum requesting

that its motion for sanctions be reset for hearing.

On October 10, 2018, Gaudin filed a motion to extend the already expired

October 9 discovery deadline arguing that several more depositions needed to be

taken requiring additional time. Gaudin’s motion was scheduled for hearing on

November 15, 2018, along with IberiaBank’s motion for sanctions. A week prior

to the scheduled hearing, Gaudin filed a motion for leave to file a third amended

petition (seeking to add additional allegations of fraud and IberiaBank’s failure to

comply with federal banking laws), which was also set for hearing on November

15, 2018.

Following the November 15, 2018 hearing, the trial court rendered judgment

granting IberiaBank’s motion for sanctions, in part, and awarding attorney’s fees.

The trial court denied Gaudin’s motion for leave to file a third amended petition,

but granted Gaudin until December 31, 2018 to complete all fact discovery relative

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to the remaining issues, i.e., Gaudin’s claims against IberiaBank under the LUCC.6

The trial court issued written reasons for judgment on December 6, 2018 and

December 14, 2018, respectively.7

Thereafter, Gaudin deposed nine IberiaBank employees “pursuant to the

[j]udgment” extending the deadline for fact discovery to December 31, 2018.

According to Gaudin, the testimony elicited in these depositions revealed that nine

employees “aided and abetted the perpetrator(s) in cashing 153 forged third party

checks … .” Gaudin submitted the deposition testimony of the nine employees,

with corresponding exhibits, to its expert in fraud calculations, Eva Jo Sparks.

Relying on the information provided to her, Ms. Sparks issued an expert report

concluding that IberiaBank intentionally violated state and federal banking laws by

allowing 153 “forged and fraudulent third (3rd) party checks,” 129 of which were in

excess of $3,000.00, to be cashed without requiring proper forms of identification

(such as, social security numbers, driver’s license numbers, payor’s addresses,

phone numbers or dates of birth), and without the endorsement of authorized

signers. Ms. Sparks further concluded that because IberiaBank refused to produce

certain discovery, “there is prima facie evidence that there remains a presumption

of fraud, regarding [IberiaBank].” Ms. Sparks’ opined that this fraud “could not

have occurred without the aiding and abetting of an inside [IberiaBank]

employee.”

On February 8, 2019, the deadline for filing dispositive motions, IberiaBank

filed a peremptory exception of prescription and motion for summary judgment, as

well as a motion to set attorney’s fees and costs, which were all set for hearing on

6
A new scheduling order was entered, which provided that, in addition to the December 31, 2018
deadline for fact discovery, Gaudin’s expert report was due by January 31, 2019, and IberiaBank’s expert
report was due by February 29, 2019. A February 8, 2019 deadline was imposed for filing dispositive
motions, and March 1, 2019, was set as the deadline for filing motions in limine.
7
According to our review of the appellate record, Gaudin did not seek review of the November 15,
2018 ruling.

19-CA-459 7

March 14, 2019. At 11:00 p.m. on February 26, 2019—the day prior to Gaudin’s

deadline for filing an opposition to IberiaBank’s motion for summary judgment—

Gaudin filed several motions, including a motion for leave to file a fourth amended

petition, a motion to continue and to extend the time to respond to IberiaBank’s

motion to set attorney’s fees and costs, and a motion to continue and to extend the

time within which to respond to IberiaBank’s peremptory exception of prescription

and motion for summary judgment. Pursuant to a telephone conference held on

March 11, 2019, the trial court set Gaudin’s motions for hearing on March 14,

2019, the same day IberiaBank’s motions and exception were set to be heard.

Approximately thirty-six hours prior to the scheduled hearing, Gaudin filed a

motion for leave to file an out-of-time opposition to IberiaBank’s peremptory

exception and motion for summary judgment, which included its expert’s report

and corresponding exhibits. Gaudin also filed an opposition to IberiaBank’s

statement of facts and a separate “statement of undisputed material facts.”8 In

response, IberiaBank opposed Gaudin’s untimely filings and filed a supplemental

reply objecting to Gaudin’s untimely opposition.

On March 14, 2019, following a hearing on the pending motions, the trial

court denied Gaudin’s motion for leave to file a fourth amended petition and its

other motions to continue. The trial court granted IberiaBank’s motion to strike

Gaudin’s late-filed opposition, thereby excluding all of Gaudin’s summary

judgment evidence. Finding that no genuine issue of material fact existed, the trial

court granted IberiaBank’s peremptory exception of prescription and motion for

summary judgment dismissing Gaudin’s remaining LUCC claims against

IberiaBank, with prejudice, based on Gaudin’s failure to timely review its account

statements and to report the alleged unauthorized transactions. The trial court also

8
The record contains no opposition to IberiaBank’s motion to set attorney’s fees and costs filed by
Gaudin.

19-CA-459 8

granted, in part, IberiaBank’s motion to set attorney’s fees and costs. Written

reasons for judgment were issued by the trial court on April 25, 2019. The instant

appeal ensued.

ISSUES PRESENTED FOR REVIEW

Gaudin presents seven issues on appeal for this Court’s review: (1) whether

the trial court erred in denying Gaudin’s motion for leave to file a fourth amended

petition; (2) whether the trial court erred in denying Gaudin’s motion to continue

and extend the time to respond to IberiaBank’s motion to set attorney’s fees and

costs; (3) whether the trial court erred in granting IberiaBank’s attorney fees and

costs; (4) whether the trial court erred in denying Gaudin’s motion to continue and

extend the time to respond to IberiaBank’s peremptory exception of prescription

and motion for summary judgment; (5) whether the trial court erred in denying

Gaudin’s motion for leave to file an out-of-time memorandum in opposition to

IberiaBank’s peremptory exception of prescription and motion for summary

judgment; (6) whether the trial court erred in granting IberiaBank’s peremptory

exception of prescription and motion for summary judgment; and, (7) whether the

trial court erred in granting Gaudin’s motion in limine to exclude expert testimony

and other evidence.

LAW AND DISCUSSION

I. Gaudin’s Motion for Leave to File a Fourth Amended Petition

Louisiana Code of Civil Procedure article 1151 provides that after an answer

has been filed, the petition and answer may be amended only by leave of court or

by written consent of the adverse party. Banks v. Parish of Jefferson, 12-215 (La.

App. 5 Cir. 1/30/13), 108 So.3d 1208, 1216. The decision to disallow an

amendment to a petition after the answer is filed is within the trial court’s sound

discretion, and that decision will not be disturbed absent an abuse thereof. Id.

19-CA-459 9

Gaudin avers that in the November 15, 2018 judgment, the trial court

extended the deadline for fact discovery to December 31, 2018 so that Gaudin

could “do what it needed to get done.” Gaudin contends the trial court was, in

essence, authorizing Gaudin to conduct additional discovery to obtain the factual

support Gaudin needed to prove its claims against IberiaBank for fraudulent

concealment and fraudulent conversion. With that understanding, Gaudin contends

that it took the depositions of nine IberiaBank employees and provided their

testimony to an expert, who then prepared a report opining that because “153

checks could not have been cashed without aiding and abetting of these crimes by

employees of the [bank],” there was fraudulent concealment and fraud on the part

of IberiaBank. Based upon the purported “newly discovered evidence” obtained

from the depositions and conclusions in its expert’s report, Gaudin contends that it

was “entitled” to file a fourth amended petition in order to add the nine IberiaBank

employees as defendants, to reassert its claims for fraudulent concealment and

fraudulent conversion that had previously been dismissed, and to add an additional

cause of action for breach of applicable banking regulations of which it was not

previously aware. According to Gaudin, it was error for the trial court to deny the

motion for leave to file the fourth amended petition. We disagree.

The record reflects that Gaudin previously filed two amended petitions.9

Our review of the claims that Gaudin seeks to add in its fourth amended petition

reveals that they are the same claims Gaudin asserted in its second amended

petition that the trial court dismissed, with prejudice, in its August 9, 2017

judgment, which judgment became binding upon Gaudin once Gaudin dismissed

its appeal. Specifically, the trial court dismissed all of Gaudin’s non-LUCC

claims, including claims for fraudulent concealment and fraudulent conversion,

9
Though Gaudin filed a motion to file a third amended petition, this motion was denied and the
third amended petition was rejected.

19-CA-459 10

and only allowed Gaudin to proceed against IberiaBank with its LUCC claims.

Additionally, in its fourth amended petition, Gaudin asserts a cause of action for

“negligent breach of state and federal national banking regulations,” which Gaudin

previously asserted in its third amended petition that was rejected by the trial court

when it denied Gaudin’s motion for leave to file.

In its reasons for judgment, the trial court explained that it granted Gaudin’s

motion to extend the discovery deadline, not so that Gaudin could create new

causes of action or breathe life into claims previously dismissed with prejudice, but

solely to allow Gaudin to complete discovery regarding the causes of actions that

remained against IberiaBank, i.e., the LUCC claims. Additionally, the trial court

rejected Gaudin’s contention that the information used to support its fourth

amended petition was newly discovered. According to the trial court, Gaudin had

been given ample opportunity to conduct discovery prior to the expiration of the

discovery deadline, which would have led to the allegations pled in the fourth

amended petition. According to the trial court, to allow Gaudin to continue filing

amended petitions “was unfair and prejudicial” to IberiaBank, especially in light of

a pending trial date only six weeks away. Based upon our review of the record, we

cannot say the trial court abused its discretion by denying Gaudin’s request to file a

fourth amended petition. See Banks, 108 So.3d at 1217-18. Accordingly, this

assignment is without merit.

II. Attorney’s Fees and Costs

By its second and third issues presented for review, Gaudin questions

whether the trial court erred in denying Gaudin’s motion to continue and extend

the time to respond to IberiaBank’s motion to set attorney’s fees and costs, and

whether the trial court erred in granting IberiaBank attorney’s fees and costs.

19-CA-459 11

A. Gaudin’s Motion to Continue Hearing and Extend the Time to
Respond

Gaudin contends that IberiaBank’s motion seeking attorney’s fees and costs

“was absurd” and that IberiaBank “prepared a fraudulent bill in an attempt to get

[Gaudin] to dismiss its claims plead … .” According to Gaudin, the trial court

erred in denying its motion to “continue and/or extend” the hearing on

IberiaBank’s motion for attorney’s fees and costs because Gaudin was entitled to

depose the affiant who attested to IberiaBank’s fraudulent bill.

Louisiana Code of Civil Procedure article 1601 provides for discretionary

grounds for granting a continuance “if there is good ground therefor.” The trial

court must consider the particular facts of a case when deciding whether to grant or

deny a continuance, including the diligence and good faith of the party seeking the

continuance and other reasonable grounds. McCoy v. Manor, 18-1228 (La. App. 1

Cir. 5/9/19), 277 So.3d 344, 347. The decision to grant or deny a continuance

under La. C.C.P. art. 1601 is within the sound discretion of the trial judge whose

ruling will not be disturbed on appeal absent a clear showing of abuse of that

discretion. Williams v. A Day to Remember Invitations, L.L.C., 06-757 (La. App. 5

Cir. 3/13/07), 956 So.2d 30, 33.

Louisiana District Court Rule 9.9(c) sets forth the time periods within which

a party is required to file memoranda opposing motions. Rule 9.9(c) states, in

pertinent part:

A party opposing [a] … motion shall concurrently
furnish the trial court and serve on all other parties an
opposition memorandum so it is received at least eight
calendar days before the scheduled hearing … .

Pursuant to Rule 9.9(e), a party that fails to comply with Rule 9.9(c) may

forfeit the privilege of oral argument. If a party fails to timely serve an opposition

memorandum, the court may allow a continuance.

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In the instant matter, IberiaBank filed a motion for attorney’s fees and costs

on February 7, 2019, and the motion was served on Gaudin one week later. The

trial court set the motion for hearing on March 14, 2019. Though the record

indicates that at 11:01 p.m. on February 26, 2019, Gaudin filed a motion to

continue the hearing, which was well within the required eight days pursuant to

Rule 9.9(c), due to the Mardi Gras holidays, the trial court did not receive Gaudin’s

motion to continue until after the deadline date for filing an opposition had passed.

Notwithstanding, the trial court set Gaudin’s motion to continue for contradictory

hearing to determine whether Gaudin had “good ground[s]” for requesting a

continuance.

At the scheduled hearing, the only “ground” Gaudin stated for its request

was so that it could conduct discovery as to the amount of attorney’s fees

IberiaBank was claiming, which Gaudin contended “reeks of fraud and possible

extortion.” Having provided no evidence to support its contention, the trial court

denied Gaudin’s request on the basis that “[m]ere speculation is not enough to

show good cause for a continuance.” We find no abuse of the trial court’s

discretion in denying Gaudin’s motion for continuance.

B. Award of Attorney’s Fees and Costs

Gaudin did not file an opposition to IberiaBank’s motion seeking attorney’s

fees and costs claiming it needed the deposition of IberiaBank’s affiant in order to

respond to the purportedly false and fraudulent affidavit IberiaBank submitted.

Gaudin contends the trial court erred in awarding attorney’s fees and costs without

first allowing Gaudin to conduct discovery in order to determine the veracity and

accuracy of the affidavit and in order to properly defend against IberiaBank’s

claim.

Louisiana Code of Civil Procedure article 1471(c) mandates the imposition

of attorney fees and reasonable expenses when a party fails to obey a court order,

19-CA-459 13

unless the court determines that the failure to obey was substantially justified or the

imposition of an expense award is otherwise deemed unjust. It is well established

that a trial court has much discretion in imposing sanctions for failure to comply

with a discovery order, as well as its choice of sanctions, including the imposition

of attorney fees and costs, and its ruling will not be reversed absent a clear

showing of abuse of discretion. Dufour v. Dow Chemical Co., 12-912 (La. App. 5

Cir. 5/23/13), 119 So.3d 630, 633.

In the case sub judice, the trial court imposed sanctions upon Gaudin, by

awarding attorney’s fees and court costs to IberiaBank, for Gaudin’s failure to

comply with the court’s order compelling discovery. Prior to calculating the

amount due, the trial court required IberiaBank to “provide documentation to show

the amount of attorney fees incurred in filing these motions.” Thereafter,

IberiaBank submitted an affidavit of its attorney, Graham Ryan, and invoices to the

court to substantiate the fees and costs it incurred. After reviewing IberiaBank’s

documentation, and finding that some of the items set forth in the invoices were

related to the actual hearing on IberiaBank’s motion for sanctions and that some of

the discovery IberiaBank conducted pertained to the entirety of the case, the trial

court reduced the amount of attorney’s fees IberiaBank requested by half and

awarded to it $27,027.00. The trial court also awarded $1,252.47 to IberiaBank for

the full amount of the court costs incurred.

The record shows that the trial court awarded sanctions, in part, to

IberiaBank on November 15, 2018. Thereafter, Gaudin was served with

IberiaBank’s motion to set attorney’s fees and costs on February 15, 2019, and the

hearing on the motion was scheduled for March 14, 2019. Despite having four

months from the date sanctions were first imposed—and one month from the date

it received IberiaBank’s affidavit documenting the attorney’s fees and costs it

requested—to conduct the discovery Gaudin argues it needed to oppose

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IberiaBank’s motion, the record is devoid of any indication that Gaudin sought

such discovery. Clearly, Gaudin had ample opportunity to oppose IberiaBank’s

motion to set attorney’s fees and costs, but did not. Finding no abuse of the trial

court’s discretion, we affirm its award of attorney’s fees and court costs assessed

against Gaudin.

III. Peremptory Exception of Prescription and Motion for Summary
Judgment

A. Gaudin’s Motion to Continue Hearing and Extend the Time to
Respond

On appeal, Gaudin questions whether the trial court erred in denying its

motion to continue the hearing on IberiaBank’s peremptory exception and motion

for summary judgment and to extend the time for Gaudin to respond. As

previously stated, La. C.C.P. art. 1601 provides that a trial court may grant a

motion to continue “if there is good ground therefor.” Moreover, “the decision to

grant or deny a continuance is within the sound discretion of the trial judge whose

ruling will not be disturbed on appeal absent a clear showing of abuse of that

discretion.” Williams, 956 So.2d at 33.

The record shows that the deadlines for discovery and filing dispositive

motions were extended numerous times throughout this litigation. The original

deadline for filing dispositive motions was set for March 30, 2018, but was

extended by seven months to November 5, 2018, in order to accommodate

Gaudin’s expressed need to take additional depositions of IberiaBank’s current and

former employees. On November 15, 2018, the trial court again extended the

deadline for filing dispositive motions to February 8, 2019, in order to

accommodate Gaudin’s claim that it needed additional time to complete fact

discovery, and so that any dispositive motion filed could be opposed and heard

within the mandatory time period prior to the pending trial date of April 29, 2019.

19-CA-459 15

IberiaBank filed its peremptory exception of prescription and motion for

summary judgment on the February 8, 2019 deadline, and the matter was

scheduled for hearing three weeks later on March 14, 2019. Service of the

exception and motion was made upon Gaudin on February 14, 2019. Pursuant to

La. C.C.P. art. 966(B)(2) and La. Dist. Ct. R. 9.9(c), the deadline for Gaudin to file

its opposition to IberiaBank’s motion, and all documents in support of the

opposition, was February 27, 2019. Instead of filing an opposition, however, at

10:59 p.m. on the evening prior to the deadline, Gaudin filed a motion to continue

the hearing and to extend the time for it to respond to IberiaBank’s motion. The

trial court set Gaudin’s motion to continue for a contradictory hearing on March

14, 2019, to determine whether “good ground” existed to grant Gaudin’s request.

At the hearing, the only reason stated by Gaudin to support its need for a

continuance or additional time to oppose IberiaBank’s peremptory exception and

motion for summary judgment was that Gaudin had not yet obtained IberiaBank’s

expert report. In response, IberiaBank argued that it did not rely upon an expert

report to support either its peremptory exception or its motion for summary

judgment and, thus, there was no “good ground” to support Gaudin’s request for a

continuance. The trial court agreed and, accordingly, denied Gaudin’s request.

Upon review, we likewise conclude that Gaudin failed to articulate any

“good ground” to support its request for a continuance or extension to file an

opposition. Consequently, we find no abuse of the trial court’s discretion in

denying Gaudin’s motion.

B. Gaudin’s Motion for Leave to File an Opposition Memorandum Out-
of-Time

Gaudin contends the trial court erred in denying its motion to file an

opposition memorandum to IberiaBank’s peremptory exception of prescription and

19-CA-459 16

motion for summary judgment out-of-time, and excluding its summary judgment

evidence in support of its late-filed opposition. We disagree.

As stated above, pursuant to La. C.C.P. art. 966(B)(2) and La. Dist. Ct. R.

9.9(c), the deadline for Gaudin to file its opposition to IberiaBank’s motion for

summary judgment was February 27, 2019, fifteen days prior to the March 14,

2019 hearing. Instead, Gaudin waited to file its opposition and supporting

documentation until March 12, 2019 at 9:00 p.m. IberiaBank opposed Gaudin’s

late-filed opposition arguing that the fifteen-day opposition deadline “is

mandatory” and that Louisiana law precludes consideration of the late-filed

opposition or opposing documents “because it lacks good cause.” Specifically,

Gaudin’s stated reason for failing to timely file an opposition was its desire to

obtain IberiaBank’s expert report, upon which IberiaBank did not rely to support

its motion for summary judgment as its motion was based solely on a legal issue

under the LUCC, unaffected by expert testimony. Additionally, IberiaBank did

file an expert report on February 28, 2019, the deadline for filing, yet the record

shows that Gaudin waited another twelve days—only thirty-six hours prior to the

hearing—to file its untimely opposition. Finding no good cause existed to allow

Gaudin’s opposition memorandum or opposing documents into the record, the trial

court denied Gaudin’s motion to file its opposition out-of-time and ruled that by

failing to comply with the deadlines, Gaudin forfeited its right to present oral

argument.

After a thorough review of the record, and the applicable codal articles,

district court rules, and jurisprudence, we find the trial court did not abuse its

discretion in excluding Gaudin’s untimely filed opposition and supporting

documentation. La. C.C.P. art. 966(B)(2); La. Dist. Ct. R. 9.9(c); Guillory v.

Chapman, 10-1370 (La. 9/24/10), 44 So.3d 272 (per curium); Buggage v. Volks

19-CA-459 17

Constructors, 06-175 (La. 5/5/06), 928 So.2d 536 (per curiam); Gisclair v.

Bonneval, 04-2474 (La. App. 1 Cir. 12/22/05), 928 So.2d 39, 42.

C. IberiaBank’s Peremptory Exception of Prescription and Motion for
Summary Judgment

Liberative prescription is a mode of barring actions as a result of inaction for

a period of time. La. C.C. art. 3447. There is no prescription other than that

established by legislation. La. C.C. art. 3457. Although the party pleading

prescription ordinarily has the burden of proving it, when the face of the petition

shows that the action has prescribed, the burden shifts to the plaintiff to show why

the claim has not prescribed. Hogg v. Chevron USA, 09-2632 (La. 7/6/10), 45

So.3d 991, 998.

Although the defense of prescription is typically asserted by peremptory

exception, it may also be raised by motion for summary judgment. Hogg, 45 So.3d

at 997. When prescription is raised by motion for summary judgment, review is de

novo, using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Id. The summary judgment procedure is

favored and shall be construed to secure the just, speedy, and inexpensive

determination of actions. La. C.C.P. art. 966(A)(2); Trench v. Winn-Dixie

Montgomery LLC, 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 475. A court

must grant a motion for summary judgment “[i]f the motion, memorandum, and

supporting documents show that there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.

966(A)(3). If the mover will not bear the burden of proof at trial, his burden on the

motion requires him not to negate all essential elements of the plaintiff’s claim, but

rather to point out that there is an absence of factual support for one or more

elements essential to the claim. La. C.C.P. art. 966(D)(1); BFH v. First National

Bank USA, 15-120 (La. App. 5 Cir. 11/19/15), 181 So.3d 204, 209. The burden is

19-CA-459 18

on 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. C.C.P. art. 966(D)(1). In this situation, the plaintiff may not

rest on the mere allegations or denials of his pleadings, but his response, by

affidavits or otherwise, but must set forth specific facts showing that there is a

genuine issue for trial. La. C.C.P. art. 967(B). Only evidence properly admitted

for purposes of the motion for summary judgment shall be considered by the court

in its ruling on the motion. La. C.C.P. art. 966(D)(2); BFH, 181 So.3d at 209.

1. La. R.S. 10:4–406

The general rule is that when a bank pays on a forged check, it is liable for

the amount of the check, plus legal interest from the date of judicial demand. See

Marx v. Whitney Nat’l Bank, 97-3213 (La. 7/8/98), 713 So.2d 1142, 1145.

Notwithstanding this general rule requiring the bank to bear the risk of loss for a

forged instrument, Louisiana law provides that in certain circumstances, a

customer may be precluded from asserting a claim against a bank that has paid on a

forged instrument. Id. Specifically, pursuant to La. R.S. 10:4–406, “a customer is

precluded from having funds paid out on a forged instrument restored to his

account if his failure to exercise reasonable care in handling the account, either

before or after the forgery, substantially contributed to the loss.” Marx, 713 So.2d

at 1145.

In the case sub judice, the basis for the trial court’s grant of summary

judgment in favor of IberiaBank dismissing the remainder of Gaudin’s claims

against it, with prejudice, was that Gaudin’s “[L]UCC claims [were] prescribed

under Louisiana Revised Statute § 10:4–406(c)” because Gaudin failed to timely

examine its account statements and report the alleged unauthorized transactions.

Pursuant to La. R.S. 10:4–406(a), “[a] bank that sends or makes available to a

customer a statement of account showing payment of items for the account shall

19-CA-459 19

either return or make available to the customer the items paid or provide

information in the statement of account sufficient to allow the customer reasonably

to identify the items paid. The statement of account provides sufficient

information if the item is described by item number, amount, and date of

payment.” La. R.S. 10:4–406(c), which imposes a duty on bank customers to

examine their statements and to promptly notify the bank of any unauthorized

transactions, states:

If a bank sends or makes available a statement of account
or items pursuant to Subsection (a), the customer must
exercise reasonable promptness in examining the
statement or the items to determine whether any payment
was not authorized because of an alteration of an item or
because a purported signature by or on behalf of the
customer was not authorized. If, based on the statement
or items provided, the customer should reasonably have
discovered the unauthorized payment, the customer must
promptly notify the bank of the relevant facts.

The LUCC further provides that, if a customer fails to comply with those

duties to “exercise reasonable promptness” in reviewing its statements and to

promptly notify the bank, the customer may be precluded from asserting against

the bank the unauthorized transactions. La. R.S. 10:4–406(d)(2). Specifically, La.

R.S. 10:4–406(d)(2), otherwise known as the “same wrongdoer” rule, states:

If the bank proves that the customer failed, with respect
to an item, to comply with the duties imposed on the
customer by Subsection (c), the customer is precluded
from asserting against the bank:

***

(2) the customer’s unauthorized signature or alteration by
the same wrongdoer on any item paid in good faith by the
bank if the payment was made before the bank received
notice from the customer of the unauthorized signature or
alteration and after the customer had been afforded a
reasonable period of time, not exceeding thirty days, in
which to examine the item or statement of account and
notify the bank. [Emphasis supplied.]

19-CA-459 20

The rule stated in Subsection (d)(2) “imposes on the customer the risk of

loss on all subsequent forgeries by the same wrongdoer after the customer had a

reasonable time to detect an initial forgery if the bank has honored subsequent

forgeries prior to notice.” Marx, 713 So.2d at 1146. [Emphasis in original.] In

Marx, the Supreme Court found that because the plaintiff failed to review and

notify the defendant bank of the initial forgeries appearing in a bank statement

within thirty days of receipt of that statement, he was “precluded” from asserting

causes of action against the bank for all subsequent forgeries by the same

unauthorized person. Id. at 1147.

Additionally, La. R.S. 10:4–406(f) imposes an absolute bar to any claim by a

bank customer based upon an unauthorized transfer not reported within one year

after the bank statement has been made available. Ducote v. Whitney Nat. Bank,

16-574 (La. App. 5 Cir. 2/22/17), 212 So.3d 729, 734, writ denied, 17-522 (La.

5/26/17), 221 So.3d 860. This period may be shortened by the bank account

agreement—which, in this case, the deposit account agreement between

IberiaBank and Gaudin shortened the one-year period to thirty days. Id. Section

10:4–406(f) applies “without regard to care or lack of care of either the customer

or the bank.” Id.

In the instant case, it is undisputed that IberiaBank sent and made available

to Gaudin monthly statements for the Gaudin Accounts that detailed all of the

alleged unauthorized transactions sufficient for Gaudin to be able to identify the

checks. Each check transaction was reflected on the account statement sent to

Gaudin at the end of the month in which the check transaction occurred. Gaudin

concedes that it received all of the account statements at issue in this case. It is

also undisputed that Gaudin agreed to IberiaBank’s deposit account agreement,

which required Gaudin to review and timely report any unauthorized transactions

19-CA-459 21

appearing on these account statements within a time “not to exceed a total of thirty

days from when the statement was first sent or made available.”

Here, the earliest alleged unauthorized transaction identified in the record is

dated May 8, 2014. Gaudin does not dispute that it received the May 2014 account

statement, which would have reflected the May 8 check transaction by Ms. Collins.

It is uncontested that Gaudin did not notify IberiaBank of any specific

unauthorized check transaction until on or after April 29, 2016, and that this

notification was solely in regards to certain check transactions involving the 2016

IOLTA account.10 As to Gaudin’s 2014 and 2015 IOLTA accounts, it is unrefuted

that IberiaBank was not notified of any specific unauthorized transactions

involving these accounts until October 31, 2017, when IberiaBank received

Gaudin’s responses to discovery. Moreover, it is undisputed that all of the alleged

unauthorized checks at issue were paid before Gaudin first notified IberiaBank on

April 29, 2016.

The summary judgment evidence presented by IberiaBank indicates that

Gaudin did not notify IberiaBank within thirty days of the first unauthorized check

transaction appearing on its May 30, 2014 account statement. Nor did Gaudin

notify IberiaBank of any unauthorized check transactions appearing on any of the

subsequent account statements made available to Gaudin in 2014, 2015, and in

January, February, or March 2016. We also find no competent evidence in the

record to refute that all the unauthorized check transactions were made by the same

wrongdoer, Lainie Collins. Accordingly, we find no error in the trial court’s

finding that Gaudin’s LUCC claims against IberiaBank were prescribed or

otherwise barred by the applicable provisions of La. R.S. 10:4–406 outlined above.

10
According to the record, the most recent alleged unauthorized transaction involved a check dated
April 16, 2016, which had already been paid when Gaudin first notified IberiaBank on or after April 29,
2016. “General notice to the bank that a theft or forgery has, or might have, occurred is not sufficient
notice for purposes of La. R.S. 10:4–406(f). Rather, specific notice of the particular items at issue is
required.” ASP Enterprises, 22 So.3d at 979-80.

19-CA-459 22

2. La. R.S. 10:3–420

Gaudin’s LUCC claims against IberiaBank for conversion are also time-

barred pursuant to La. R.S. 10:3–420. A cause of action for the conversion of a

negotiable instrument under the LUCC is subject to a separate one-year

prescriptive period under La. R.S. 10:3–420, which provides, in pertinent part:

(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.
…

(f) Any action for conversion … prescribes in one year.

As previously established, IberiaBank made payment with respect to

numerous instruments (checks) for a person (Lainie Collins) not entitled to enforce

the instrument or receive payment (the payee was always someone other than

Lainie Collins).11 We find that La. R.S. 10:3–420 governs Gaudin’s claim for

conversion of instruments and that the one-year prescriptive period applies to all

instruments allegedly converted prior to July 15, 2015, more than one year prior to

Gaudin’s filing suit on July 15, 2016. See BFH, 181 So.3d at 208; ASP

Enterprises, 22 So.3d at 972; Peak Performance Physical Therapy & Fitness, LLC

v. Hibernia Corporation, 07-2206 (La. App. 1 Cir. 6/6/08), 992 So.2d 527, 531,

writ denied, 08-1478 (La. 10/3/08), 992 So.2d 1018.

3. The Deposit Account Agreements

As previously observed, pursuant to the respective Deposit Account

Agreements existing between Gaudin and IberiaBank relative to the Gaudin

Accounts, Gaudin had a separate duty to promptly examine its account statements

11
While Gaudin suggests that Ms. Collins was aided and abetted in this check-cashing scheme,
there is no competent evidence in the record to refute that anyone other than Ms. Collins was responsible
for the unauthorized check transactions at issue in this case.

19-CA-459 23

and to notify the bank of any unauthorized transaction discovered, or that should

have been discovered, within thirty days from when the statement was first sent or

made available to it. Gaudin does not dispute that it received statements for its

2014 and 2015 IOLTA accounts and did not notify the bank of any unauthorized

transactions appearing therein until October 2017 in its responses to discovery.

Regarding the 2016 IOLTA account, the record shows that account statements

were sent to Gaudin on January 29, 2016 and February 29, 2016, and that thirty

days after the statements had been made available elapsed without notification to

IberiaBank of any unauthorized transaction discovered on those statements. Thus,

Gaudin’s claims against IberiaBank on unauthorized check transactions that

occurred prior to March 2016 are also precluded by the express terms of the

Deposit Account Agreements. See Ducote, 212 So.3d at 729.

4. Fraudulent Concealment and Contra Non Valentum

Once IberiaBank established the foregoing facts, it was incumbent upon

Gaudin to come forward with competent evidence that its claims were not

prescribed or otherwise barred by La. R.S. 10:4–406, La. R.S. 10:3–420, or under

the express terms of the 2014, 2015 and 2016 Account Deposit Agreements to

which it had agreed. In this regard, while Gaudin does not contest receipt of the

monthly account statements or the timeline of events, it urges that the narrow

exception of contra non valentum, based on a fraudulent concealment theory,

applies to suspend prescription of its claims against IberiaBank.12 Put simply,

12
Contra non valentum, which means that prescription does not run against a person who could not
bring his suit, is a jurisprudential doctrine under which prescription may be suspended. Carter v.
Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1268. The doctrine of contra non valentum, an
exception to the statutory prescriptive period, only applies in “exceptional circumstances,” where in fact
and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Specialized Loan
Servicing, LLC v. January, 12-1225 (La. 6/28/13), 229 So.3d 582, 585. The Louisiana Supreme Court
has recognized four instances where contra non valentum can apply: (1) where there was some legal
cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s
actions; (2) where there was some condition coupled with a contract or connected with the proceedings
which prevented the creditor from suing or acting; (3) where the debtor himself has done some act
effectively to prevent the creditor from availing himself of his cause of action; or (4) where some cause of
action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by

19-CA-459 24

Gaudin contends that IberiaBank fraudulently concealed Ms. Collins’

embezzlement. In support, Gaudin relies on the report of its expert fraud

examiner, Eva Sparks, “which clearly shows fraudulent concealment [by

IberiaBank], spoliage of evidence, and confessions of violations of National

banking laws and statutes, through the testimony and exhibits of the nine

depositions of [IberiaBank’s] employees.” In further support, Gaudin contends

that IberiaBank destroyed or failed to preserve video evidence (i.e., alleged

spoliation of evidence) that would have substantiated its claim that IberiaBank’s

employees fraudulently concealed or aided and abetted in Ms. Collins’ check-

cashing scheme. Thus, at the very least, Gaudin argues that there remains a

genuine issue of material fact as to whether IberiaBank fraudulently concealed the

forged checks entitling Gaudin to invoke the contra non valentum exception to

defeat IberiaBank’s motion for summary judgment. We disagree.

The trial court specifically rejected Gaudin’s fraudulent concealment theory

explaining in its reasons for judgment that it “had provided [Gaudin] ample

opportunity for discovery regarding the alleged fraud claims … [but] [Gaudin]

failed to show evidence of any fraud claims.” We, likewise, reject Gaudin’s

argument. On de novo review, we find that Gaudin has failed to offer any

competent summary judgment evidence that would defeat IberiaBank’s motion.

Having found no abuse of the trial court’s discretion in striking Gaudin’s late-filed

opposition and attached exhibits, including the expert report and deposition

testimony of the IberiaBank employees upon which Gaudin relies to support is

fraudulent concealment theory, we do not consider them now. Absent these

exhibits, there is not a scintilla of evidence to support Gaudin’s allegations of

fraudulent concealment that would toll the running of prescription or defeat the bar

the defendant. Id. Gaudin contends that the third category of the doctrine applies to suspend prescription
of its claims against IberiaBank in this case.

19-CA-459 25

of its claims under either La. R.S. 10:4–406, La. R.S. 10:3–420 or the Account

Deposit Agreements.

Specifically, Gaudin submitted no admissible evidence to factually refute

that Lainie Collins—to whom Gaudin authorized and placed sole responsibility to

receive and reconcile its account statements—was the sole perpetrator who

embezzled from Gaudin via the checks. Gaudin has adduced no competent

evidence to suggest that IberiaBank employees aided or abetted Ms. Collins, or

that anyone from IberiaBank even knew about the embezzlement prior to April

2016 when Gaudin first notified the bank of its discovery of an unauthorized check

transaction.

After thoroughly reviewing the record, we also find no support for Gaudin’s

spoliation-of-evidence claim. The theory of “spoliation of evidence” refers to an

intentional destruction of evidence for purposes of depriving opposing parties of its

use. Pham v. Continco Intern., Inc., 99-945 (La. App. 5 Cir. 3/22/00), 759 So.2d

880, 882. The record is devoid of any admissible evidence that IberiaBank

intentionally destroyed evidence to cover up or fraudulently conceal its alleged role

in negligently cashing the stolen checks forged by Ms. Collins. To the contrary,

IberiaBank submitted evidence establishing that its general practice is to retain

approximately ninety days of video surveillance, at which point the hard drive is

written over. In response to discovery, IberiaBank produced to Gaudin the video

clips it had in its possession spanning from February 22, 2016 to April 19, 2016,

and claimed that by May 2016, it had no further videos to produce. In Louisiana,

the Supreme Court has held that “public policy in our state precludes the existence

of a duty to preserve evidence.” Reynolds v. Bordelon, 14-2362 (La. 6/30/15), 172

So.3d 589, 592.

Gaudin’s conclusory allegations of IberiaBank’s “fraudulent concealment,”

no matter how oft repeated, without any competent supporting testimony or

19-CA-459 26

documentary evidence, are insufficient to create a genuine issue of material fact as

to whether IberiaBank “fraudently concealed” Ms. Collins’ embezzlement, or to

establish that any bank employee knew of the embezzlement before Gaudin

notified the bank. See ASP Enterprises, 22 So.3d at 974-975 (conclusory

statements are insufficient to give rise to any inference of fraud or fraudulent

concealment); Hardin, 125 So.3d at 500 (bank customer’s affidavit voicing

speculation that person who cashed altered checks from customer’s account had a

confederate in the bank did not create a genuine issue of material fact in action

against the bank on issue of fraudulent concealment). When a motion for summary

judgment is made and supported as provided by law, the adverse party “may not

rest on the mere allegations or denials of his pleading,” but must “set forth specific

facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B). The

instant showing by Gaudin, “based purely on allegation, denial and sharp

hypothesis,” does not create a genuine issue for trial. Hardin Compounding

Pharmacy, LLC v. Progressive Bank, 48,397 (La. App. 2 Cir. 9/25/13), 125 So.3d

493, 500.

The record shows that Gaudin was afforded great latitude to conduct

discovery in order to uncover at least a scintilla of evidence of fraudulent

concealment admissible under La. C.C.P. art. 967, yet failed to timely do so. The

trial court did not err in rejecting Gaudin’s “fraudulent concealment” theory to

defeat IberiaBank’s motion for summary judgment. Consequently, with no

evidence to support a suspension of prescription, we find the trial court properly

granted summary judgment in favor of IberiaBank dismissing the remainder of

Gaudin’s LUCC claims, with prejudice, as those claims are prescribed.

19-CA-459 27

5. Violation of Federal Banking Laws and Internal Banking Practices
and Procedures

To the extent Gaudin contends that genuine issues of material fact remain

regarding whether IberiaBank violated various state and federal banking laws, in

addition to its own internal banking practices and procedures, when it negligently

cashed the stolen checks forged by Ms. Collins, our de novo review of the record

reveals that this claim also lacks merit. In support its contention, Gaudin again

relies solely on its expert’s report and the deposition testimony of IberiaBank’s

employees, all of which were stricken from the record and cannot be considered

here. Moreover, Gaudin has submitted no competent evidence to establish which

federal and state banking laws IberiaBank purportedly violated, or the internal

banking practices and procedures IberiaBank failed to follow. Gaudin also

presented no evidence showing that any such failure on the part of IberiaBank

“substantially contributed to [the] loss” Gaudin sustained. See La. R.S. 10:4–

406(e). This claim is without merit.

D. IberiaBank’s Motion in Limine to Exclude Expert Testimony and
Other Evidence

In its last issue presented for review, Gaudin questions whether the trial

court erred in granting IberiaBank’s motion in limine to exclude the expert report

of Gaudin’s fraud examiner and other exhibits she relied upon to prepare her

report. A review of the trial court’s judgment, however, indicates that the trial

court determined that IberiaBank’s motion in limine was “moot.” In its written

reasons for judgment, the trial court stated that it “found that this matter was Moot,

since [Gaudin’s] case against Defendant IberiaBank has been dismissed with

prejudice.” Finding no error in the trial court’s judgment granting summary

judgment in favor of IberiaBank, dismissing all of Gaudin’s claims against it, with

19-CA-459 28

prejudice, we likewise find no error in the trial court’s determination that

IberiaBank’s motion in limine was moot.

CONCLUSION

After a thorough de novo review of the record, for the reasons assigned, we

affirm the trial court’s March 14, 2019 judgment in its entirety.

AFFIRMED.

19-CA-459 29

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 17, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-459
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
JAMES E. SHIELDS, SR. (APPELLANT) GRAHAM H. RYAN (APPELLEE) PAULINE F. HARDIN (APPELLEE)

MAILED
LAINIE COLLINS (APPELLEE)
IN PROPER PERSON
2624 CASCADE DRIVE
MARRERO, LA 70072