Marino v. Gulf Coast Bank & Trust Co.

• Decision Date: 23 December 2015
• Docket Number: No. 15–CA–307.,15–CA–307.
• Court: Court of Appeal of Louisiana — District of US
• Parties: Julia MARINO, Wife of/and Martin Marino v. GULF COAST BANK AND TRUST COMPANY and John Doe.

184 So.3d 153

Julia MARINO, Wife of/and Martin Marino
v.
GULF COAST BANK AND TRUST COMPANY and John Doe.

No. 15–CA–307.

Court of Appeal of Louisiana, Fifth Circuit.

Dec. 23, 2015.

184 So.3d 154

Jack E. Truitt, Pamela S. Chehardy, Ryan D. Kelley, Alexandra Schultz, Attorneys at Law, Covington, LA, James A. Williams, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.

Michael S. Ricci, Jonathan L. Schultis, Mervatt F. Eljouhari, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY and STEPHEN J. WINDHORST.

STEPHEN J. WINDHORST, Judge.

Appellants, Julia and Martin Marino, seek review of the trial court's judgment granting appellees', Gulf Coast Bank and Trust Company and John Doe (collectively "Gulf Coast Bank"), motion for summary judgment. For the reasons that follow, we affirm.

FACTS

The following facts are undisputed for the purpose of appellees' motion for summary judgment.¹ The Jefferson Parish Sheriff's Office ("JPSO") arrested Salvadore Marino, the adult son of appellants, for drug-related crimes and failure to pay taxes. JPSO executed a search warrant on Toker's, a business owned and operated by Salvadore Marino. On the same day, JPSO contacted Gulf Coast Bank to confirm that checks which had been recovered belonged to an account at Gulf Coast Bank in the name of Toker's, that the account number on the checks was correct, and that the account was still active. John Doe, an employee of Gulf Coast Bank,

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initiated a second telephone conversation with JPSO wherein he allegedly misinformed Agent Stacy Taranto that safe deposit box * * * * *, located at Gulf Coast Bank, was also in the name of Toker's, and that it had recently been accessed by appellant, Martin Marino. JPSO obtained a search warrant for the safe deposit box based on this incorrect information and seized $127,730.00 in currency from the safe deposit box. In fact, the safe deposit box was in the name of appellants and their adult son, Salvadore Marino, not in the name of Toker's.

Appellants filed this petition for damages contending appellees were liable for the disclosure of appellants' financial information in bad faith under state and federal law and for negligent misrepresentation. Appellees subsequently filed this motion for summary judgment arguing that they are immune from liability for communications or disclosures made to any law enforcement agency under the facts as alleged, pursuant to the Right to Financial Privacy Act ("RFPA") and the Annunzio–Wylie Anti–Money Laundering Act ("the Act"). On February 12, 2015, the trial court granted appellees' motion for summary judgment. This appeal followed.

LAW AND ANALYSIS

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06–363 (La.11/29/06), 950 So.2d 544, 547 ; Ghergich v. Toye, 14–300 (La.App. 5 Cir. 10/29/14), 164 So.3d 238, 240. A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966B(2). If the moving party shows there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966C(2). If the non-moving party fails to satisfy his burden, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967 ; Parish of Jefferson v. Davie Shoring, Inc., 14–701 (La.App. 5 Cir. 02/11/15), 167 So.3d 925, 929.

When summary judgment is granted in the context of statutory interpretation, there are no material issues of fact in dispute and the sole issue before the reviewing court is a question of law as to the correct interpretation of the statute at issue. State v. La. Land & Exploration Co., 12–0884 (La.01/30/13), 110 So.3d 1038, 1044. Legislation is the solemn expression of the will of the legislature. La. C.C. art. 2 ; Milbert v. Answering Bureau, Inc., 13–0022 (La.06/28/13), 120 So.3d 678, 684. The determination of the legislature's will must start with the language of the statute itself. La. Land & Exploration Co., 110 So.3d at 1044 (citing McGlothlin v. Christus St. Patrick Hosp., 10–2775 (La.07/01/11), 65 So.3d 1218, 1227 ). The words must be interpreted as they are generally understood. La. C.C. art. 11. When the words of a statute are clear and unambiguous, and the application of the law does not lead to absurd consequences, the statute should be applied as written and no further efforts should be made to determine the legislature's intent. La. C.C. art. 9 ; La. R.S. 1:4 ; In re Clegg, 10–0323 (La.07/06/10), 41 So.3d 1141, 1154 ; Ghergich, 164 So.3d at 242. When the

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language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10 ; Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Econ. Dev., 10–193 (La.01/19/11), 56 So.3d 181, 188.

In their sole assignment of error, appellants contend that the trial court erred in granting appellees' motion "by finding that 31 U.S.C. § 5318 grants total blanket immunity to financial institutions for any and all disclosures made, even those not made in good faith."

Appellants contend that they have suffered damages due to appellees' violation of state and federal laws on disclosure and negligent misrepresentation. Appellants, citing Lopez v. First Union Nat'l Bank, 129 F.3d 1186, 1192 (11th Cir.1997), contend that "The Annunzio–Wylie Act does not provide a financial institution blanket immunity for any disclosure of an individual's financial records." Appellants argue that in order for the safe harbor provision of the Act to apply, "there must be some good faith basis for believing there is a nexus between the suspicion of illegal activity and the account or accounts from which information is disclosed." Lopez, 129 F.3d at 1195. Appellants contend that JPSO seized $127,730.00 in currency from safe deposit box * * * * * at Gulf Coast Bank, which was in the name of appellants and their son, Salvadore Marino, not Toker's, as John Doe reported. Therefore, appellants contend that the Act does not provide immunity for false information provided by an employee. Appellants further contend that at a minimum, whether Gulf Coast Bank was in good faith is a genuine issue of material fact that would preclude summary judgment.

Appellees contend that under federal law, a financial institution cannot be forced to provide information concerning its disclosures to law enforcement. Specifically, appellees contend that financial institutions are prohibited from disclosures of or that could lead to (1) the existence or non-existence of a suspicious activity report ("SAR"); (2) existence or contents of a SAR; (3) communication pertaining to the filing of a SAR or its contents; (4) communications with government authorities that led to the filing of a SAR or preparation for the filing of a SAR; (5) communications that follow the filing of a SAR intending to explain or clarify a SAR; and (6) the existence or content of oral communications to authorities regarding suspected or possible violations of laws or regulations that did or did not lead to the filing of a SAR.² Appellees also contend that there is no limitation on the immunity provided under the Act because a plain reading of the safe harbor provision of 31 U.S.C. § 5318(g)(3)(A) does not impose a good faith requirement on disclosures. Appellees argue that immunity under the Act is supported by the unqualified immunity granted under the RFPA. Thus, appellees argue they are immune under the Act and the RFPA for any alleged disclosures of any possible violation of law to JPSO during a drug investigation and the subsequent arrest of Salvadore Marino, an individual who was part owner of the safe deposit box that was seized by JPSO and is the subject of appellants' petition for damages.

The Right to Financial Privacy Act protects a customer's financial records in financial institutions by limiting both federal law enforcements ability to obtain or access the information and limiting the financial institutions freedom to give information out. 12 U.S.C. § 3401 –3422 ; Puerta

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