Joyce Marie Perry v. Capital One, N.A.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT’

08-0700

JOYCE MARIE PERRY

VERSUS

CAPITAL ONE, N. A., ET AL.

************

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 226,595
HONORABLE GEORGE METOYER, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Jimmie C. Peters, Marc T. Amy, and James T. Genovese, John D.
Saunders, and Michael G. Sullivan, Judges.

Genovese, J., dissents and assigns reasons.
Saunders, J., dissents for the reasons assigned by Genovese, J.

REVERSED AND RENDERED.

Charles L. Kincade
Attorney at Law
One Wood Street
Monroe, LA 71201
(318) 388-4205
COUNSEL FOR PLAINTIFF/APPELLEE:
Joyce Marie Perry

Ronald J. Fiorenza
Andrew E. Schaffer
Provosty, Sadler, deLaunay, Firoenza & Sobel A.C.
934 Third Street, Suite 800
Post Office Drawer 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR DEFENDANT/APPELLANT:
Capital One, N. A., et al.

PETERS, J.

The defendant, Capital One, N. A. (Capital One), as successor in interest to

Hibernia National Bank (Hibernia), appeals a trial court judgment awarding the

plaintiff, Joyce Marie Perry, $30,000.00 in damages she sustained as a result of her

arrest after she attempted to cash a closed account check at one of Hibernia’s branch

banks in Alexandria, Louisiana. For the following reasons, we reverse the trial court

judgment and render judgment in favor of Capital One, dismissing all of Ms. Perry’s

claims against that defendant.

DISCUSSION OF THE RECORD

There is little dispute concerning the facts giving rise to this litigation. On

December 30, 2005, Ms. Perry, who makes her living as a hair stylist, received a

$30.00 check for services rendered from one of her customers, Katherine Clemons.

The check was drawn on a Hibernia account in Ms. Clemons’ name, but which had

been closed since April 26, 2004.

When Ms. Perry attempted to cash the check at the drive-thru window of

Hibernia’s Masonic Drive branch, the teller at the window immediately recognized

that the account was closed. The teller then compared the signature on the check to

the signature card on Ms. Clemons’ active account and concluded that the signatures

did not match. As Ms. Perry waited at the drive-thru window, Deana Huff, the branch

manager, attempted unsuccessfully to contact Ms. Clemons by telephone and inquire

as to the validity of the check. She then contacted Bobbie Evans Abshire, the bank’s

operations manager who instructed her to telephone the police, which she did. The

police officer who responded to the telephone call arrested Ms. Perry at the scene and

transported her to the Rapides Parish Sheriff’s Office. Within a short time after her

arrival at the Sheriff’s Office, she was released without being booked. Ms. Perry was

never formally charged with any offense.

The day after the incident, Ms. Clemons appeared at the Masonic Drive branch

and informed Ms. Huff that she had given the check at issue to Ms. Perry as payment

for her services, but that the check had been signed by her daughter, not herself. Ms.

Huff then instructed Ms. Clemons to contact the law enforcement authorities and let

them know the circumstances around which the check was negotiated. When

questioned concerning why the check on the closed account had been given to Ms.

Perry, Ms. Clemons responded that she was not aware that she still had checks from

the old account and had mistakenly used one of them.

Ms. Perry filed suit against Capital One, the arresting officer, and the City of

Alexandria.1 The basis of her claim against Capital One was the failure of its

employees to “adequately investigate the matter prior to contacting the police.

Specifically [it] failed to ask plaintiff any questions regarding the check prior to

calling the police.” In its answer to Ms. Perry’s petition, Capital One denied liability

and affirmatively alleged that Mrs. Clemons was at fault for writing a check drawn

on a closed account, in allowing an unauthorized person to sign the check, and in

failing to update her contact information.

Following a hearing on the merits, the trial court rendered written reasons for

judgment finding Capital One liable to Ms. Perry for failing to adequately investigate

the matter prior to notifying the police. It awarded her $30,000.00 in damages based

on the embarrassment, humiliation, and emotional distress she suffered as a result of

this incident. Capital One perfected this appeal, asserting three assignments of error:

1
The arresting officer and the City of Alexandria were released from the litigation by
summary judgment.

2

1) The trial court erred because it came to an improper legal determination
that Capital One was at fault.

2) The trial court erred in failing to find that Katherine Clemons was at
fault.

3) The trial court awarded excessive damages to Joyce Marie Perry.

OPINION

In its first assignment of error, Capital One argues that the trial court

committed an error of law in finding that it owed a duty to Ms. Perry to question her

about the check prior to calling the police. We agree, and, in so finding, we need not

address either of the remaining assignments of error.

In Louisiana, the determination of liability in negligence actions is decided

through a duty/risk analysis. This involves a five-prong determination: (1) whether

the defendant owed a duty of care to the plaintiff; (2) whether there was a breach of

that duty by the defendant; (3) whether the breach of that duty was a cause-in-fact of

the plaintiff’s injuries; (4) whether the breach was the legal cause of the harm

suffered; and (5) whether the plaintiff suffered damages. Hanks v. Entergy Corp., 06-

477(La. 12/18/06), 944 So.2d 564.

In Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La. 3/10/06), 923

So.2d 627, 633, the supreme court discussed the duty element:

A threshold issue in any negligence action is whether the
defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6
(La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question
of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p.
7 (La.5/18/99), 733 So.2d 1198, 1204; Mundy v. Department of Health
and Human Resources, 620 So.2d 811, 813 (La.1993); Faucheaux v.
Terrebonne Consolidated Government, 615 So.2d 289, 292 (La.1993).
In deciding whether to impose a duty in a particular case, the court must
make a policy decision in light of the unique facts and circumstances
presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938
(La.1991). The inquiry is whether the plaintiff has any law (statutory,
jurisprudential, or arising from general principles of fault) to support the

3

claim that the defendant owed him a duty. Faucheaux, 615 So.2d at
292; Perkins, 98-2081 at 22, 756 So.2d at 404.

A more in depth analysis of the duty element was performed by the second circuit in

Travelers Property Casualty Co. of America v. Pratt, 41,387 (La.App. 2 Cir.

9/27/06), 940 So.2d 704. There, the court stated:

The legal inquiry involves a determination of whether the duty of the
particular defendant that has allegedly been breached extends to protect
against the risk of the harm suffered by the plaintiff, and whether there
are legal or policy reasons which may excuse the defendant from the
consequences of his negligence. Peacock’s Inc. v. Shreveport Alarm
Co., 510 So.2d 387 (La.App. 2d Cir.1987), writs denied, 513 So.2d 826,
513 So.2d 827, and 513 So.2d 828 (La.1987). A risk may not be within
the scope of a duty where the circumstances of the particular injury to
the plaintiff could not be reasonably foreseen or anticipated, because
there was no ease of association between that risk and the legal duty.
Todd v. State Through Social Services, 96-3090 (La.9/9/97), 699 So.2d
35, reh. denied, 96-3090 (La.10/31/97), 701 So.2d 958; Hill v. Lundin
& Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). The extent of
protection owed by a defendant to a plaintiff is made on a case-by-case
basis to avoid making a defendant an insurer of all persons against all
harms. Todd, supra.

Id. at 707-08.

In its written reasons for judgment,2 the trial court found as fact that the bank

employees “firmly believed, after comparing the signature on the check to the

signature card on file for the account, that the signature on the check had been

forged.” On the one hand, the trial court concluded that “the bank’s employees

perform[ed] inadequate investigation,” and on the other, suggested that “the

transaction between the bank and [Ms. Perry] should have been terminated the

moment that the bank employee realized that the plaintiff was presenting a check for

2
Although the trial court captioned the document filed in the record as WRITTEN REASON
FOR JUDGMENT, the document also serves as the final judgment in that it contains both the trial
court’s reasons for rendering judgment in favor of Ms. Perry, as well as language rendering a final
judgment corresponding to the findings of the written reasons.

4

payment which was written on a closed account,” an action which would have

precluded any investigation at all.

Ms. Perry argues on appeal as well that Hibernia failed to adequately

investigate the matter by not questioning her about the check before informing the

police. We find no authority for holding that a bank owes a duty to a holder of a

check which bears a forged signature and which is drawn on a closed account to

question the holder as to how he or she acquired the check. Faced with such a

situation, the bank employees acted responsibly in contacting law enforcement

authorities, and the investigation of the potential crime is their duty, not the bank’s.

In fact, if any duty was owed, we find that it was owed to Capital One’s customer,

Ms. Clemons, not to pay on a check containing a presumably forged signature.

Prestridge v. Bank of Jena, 05-545 (La.App. 3 Cir. 3/8/06), 924 So.2d 1279, writ

denied, 06-836 (La. 6/2/06), 929 So.2d 1261.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court and render

judgment in favor of Capital One, N. A., dismissing the claims of Joyce Marie Perry

against the defendant. We assess all costs of these proceedings to Joyce Marie Perry.

REVERSED AND RENDERED.

5

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-700

JOYCE MARIE PERRY

VERSUS

CAPITAL ONE, N.A., ET AL.

GENOVESE, J., dissents and assigns the following reasons.

In this case, an innocent fifty-year-old lady was arrested, handcuffed, and

dragged down to the police station for attempting to cash (at defendant’s bank) a

$30.00 check given to her for services she rendered in her hair salon. This is

appalling.

Under La.Civ. Code art. 2315, the foundation for our tort system, one has a

duty to act reasonably to avoid harm to others. The majority finds that the bank owed

no duty to the plaintiff. However, I find that there was both negligence (a breach of

duty) and the intentional tort of false imprisonment in this case. The plaintiff did

nothing wrong. The bank, on the other hand, breached its duty to the plaintiff, a

legitimate bank customer engaged in a routine banking transaction (cashing a check),

by lying to the plaintiff, stalling, and unlawfully detaining her in the “drive-thru” for

some thirty minutes until the police came and carted her off in public. All of this over

a $30.00 check with a signature that did not match the bank’s records.

There were several key facts that were not mentioned in the majority opinion.

The plaintiff was stalled and detained in the “drive-thru” for some thirty minutes.

The plaintiff had cashed checks at this bank on several prior occasions. The plaintiff

gave the bank her driver’s license, which the bank kept and would not return to her

during the incident. The bank lied to the plaintiff telling her that “the computers were

down.” During the thirty-minute wait, the plaintiff offered to leave and come back,

but the bank told her that she could not leave. All the bank had or needed to do was

simply record the information on the check and driver’s license and dishonor the

check. If the ($30.00) transaction proved to be fraudulent, then the bank could have

easily turned it over to the authorities to apprehend the plaintiff, a local hair stylist.

We’re not dealing with Bonnie and Clyde here.

The bank certainly breached its duty to act reasonably to avoid harm to the

plaintiff. The bank would not give the plaintiff her driver’s license and would not let

her leave the “drive-thru” for some thirty minutes. This constitutes the tort of false

imprisonment which is the unlawful detention of a person without authority. The

bank had no legal or other authority to lie to the plaintiff, to mislead the plaintiff, to

detain or stall the plaintiff, or to refuse to return her driver’s license. This is not a

shoplifting case where merchants are legally permitted to detain a suspected

shoplifter for sixty minutes until the police arrive as per La.Code Crim.P. art. 215.

In my view, the bank did owe a duty to the plaintiff, and it breached that duty

and falsely imprisoned her. Though I find the damage award to the plaintiff to be on

the high side, I do not find that the trial court abused its discretion in that regard. I

would affirm the trial court judgment in all respects.