Ohle v. Uhalt

• Docket Number: 2022-CA-0818
• Decision Date: 06 July 2023
• Parties: JOHN BREWSTER OHLE, III v. HUGH A. UHALT, INDIVIDUALLY, AND ECETRA N. AMES, THROUGH HER DULY APPOINTED LEGAL GUARDIAN, HUGH A. UHALT
• Court: Court of Appeal of Louisiana — District of US

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JOHN BREWSTER OHLE, III v. HUGH A. UHALT, INDIVIDUALLY, AND ECETRA N. AMES, THROUGH HER DULY APPOINTED LEGAL GUARDIAN, HUGH A. UHALT

No. 2022-CA-0818

Court of Appeals of Louisiana, Fourth Circuit

July 6, 2023

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-06481 DIVISION "N-8" Honorable Ethel Simms Julien, Judge

Corey E. Dunbar PIVACH, PIVACH, HUFFT &THRIFFILEY & DUNBAR L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT

Stephen H. Kupperman Janelle Sharer BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC COUNSEL FOR DEFENDANT/APPELLEE

Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet Judge Sandra Cabrina Jenkins

SANDRA CABRINA JENKINS, JUDGE

This appeal arises from the trial court's August 18, 2022 judgment, granting appellee's declinatory exception of lack of personal jurisdiction and dismissing appellant's claims against Mr. Uhalt, individually, without prejudice. For the reasons that follow, we affirm the trial court's judgment.

PROCEDURAL HISTORY

On July 30, 2021, John Brewster Ohle, III filed a petition for damages, naming as defendants Hugh A Uhalt and his mother Ecetra N. Ames. Mr. Ohle alleged malicious prosecution and unjust enrichment. Mr. Ohle asserted the following:

1. In December 1999, Ms. Ames executed an instrument establishing the Anthony M. and Ecetra N. Ames Charitable Remainder Unitrust ("Ames Trust"), which designated Mr. Ohle as trustee.

2. On October 14, 2003, he and Ms. Ames executed a settlement agreement and mutual release, settling all of Ms. Ames' claims against him and providing confidentiality provisions.

3. On January 12, 2004, as trustee, Mr. Ohle filed a petition to approve accounting, and the trial court approved the accounting of the Ames Trust.

4. On October 28, 2009, Ms. Ames filed a petition against Mr. Ohle in the United States District Court, Eastern District of Louisiana, which was dismissed without prejudice on December 9, 2010.

5. False allegations of Ms. Ames's petition led to Mr. Ohle indictment in the United States District Court for the Southern District of New York.

6. Mr. Uhalt falsely testified in the criminal trial that: a) Mr. Ohle held power of attorney allowing him access to all of Ms. Ames's financial information during the period of the Ames Trust accounting, b) Mr. Ohle defrauded Ms. Ames and the trust.

7. Mr. Uhalt's perjured testimony led to Mr. Ohle's conviction and the order against him to pay $2.9 million in forfeiture and $5.5 million in restitution

8. On January 14, 2011, Ms. Ames filed a second suit against Mr. Ohle in Orleans Parish Civil District Court.

9. On December 2, 2015, Mr. Uhalt filed an ex parte motion to substitute plaintiff, indicating that Ms. Ames was incapacitated and he was the duly appointed legal guardian of Ms. Ames.

10.On March 23, 2016, Ms. Ames's second suit was dismissed with prejudice on an exception of res judicata.

11. Ms. Ames's second suit was in violation of October 14, 2003 settlement agreement and was malicious.

12. Ms. Ames and Mr. Uhalt were unjustly enriched by the restitution order issued by the United States District Court, Southern District of New York, and subsequent fraudulent removal of assets from the Ames Trust.

13. The instant suit is a re-filing of claims presented in another petition that was dismissed without prejudice on an exception of insufficient service of process.

On August 21, 2021, Mr. Ohle filed a "Petition for Letter Rogatory to Issue Subpoena Duces Tecum/Records Deposition to Foreign Court." On October 14, 2021, Mr. Ohle filed an ex parte motion to appoint curator ad hoc. Stephen Kupperman was appointed as curator ad hoc to represent Mr. Uhalt, individually, and Ms. Ames, through her duly appointed legal guardian, Mr. Uhalt. Thereafter, on November 1, 2021, Mr. Kupperman filed a motion to strike Mr. Ohle's petition for letter rogatory; and the trial court granted the motion to strike on January 18, 2022.

On February 2, 2022, Mr. Kupperman filed declinatory exceptions of insufficient service of process and lack of personal jurisdiction. The trial court held a hearing on the exceptions on June 24, 2022, in which it orally denied the exception of insufficiency of service of process and took the exception of lack of personal jurisdiction under advisement. Thereafter, on August 18, 2022, the trial court issued a written judgment with reasons granting the exception of lack of personal jurisdiction.

On August 25, 2022, Mr. Ohle filed a motion for new trial, which was denied on August 29, 2022. On October 20, 2022, Mr. Ohle filed a motion for devolutive appeal. This appeal follows.

On June 1, 2023, this Court issued an order for the trial court to sign a judgment containing proper decretal language. On June 2, 2023, the trial court supplemented the record with its amended judgment.

DISCUSSION

Mr Ohle argues that the trial court erred in failing to conduct a proper personal jurisdiction analysis in the matter and in not addressing the denial of the exception of insufficiency of service of process in the August 18, 2022 judgment.^[1]

Exception of insufficiency of service of process Mr. Ohle argues that the exception of insufficiency of service of process was orally denied and that the trial court erred in not addressing the exception of insufficiency of service of process in the August 18, 2022 judgment.

The trial court's oral ruling at the June 24, 2022 hearing denied the defendants' exception of insufficiency of service of process. The ruling was interlocutory, as it did not determine the merits, in whole or in part. See Elysian, Inc. v. Neal Auction Company, 2020-0674, 2020-0675, p. 7 (La.App. 4 Cir. 7/21/21), 325 So.3d 1075, 1082 (citing La. C.C.P. art. 1841). "Interlocutory rulings generally are not required to be reduced to writing." CamSoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 2015-0881, p. 4 (La.App. 1 Cir. 7/14/15), 180 So.3d 382, 384. La. C.C.P. art. 1914(A) provides that "the rendition of an interlocutory judgment in open court constitutes notice to all parties." Rather, under La. C.C.P. art. 1914(B), "[t]he interlocutory judgment shall be reduced to writing if the court so orders, if a party requests within ten days of rendition in open court that it be reduced to writing, or if the court takes the interlocutory matter under advisement."

Here, the record is devoid of any evidence of the trial court ordering or any party requesting that the trial court's oral denial of the exception of insufficiency of service of process to be reduced to writing. Further, the only matter the trial court took under advisement was the exception of no personal jurisdiction. Thus, we find no error in the trial court's failing to include the denial of the exception of insufficiency of service of process in its August 18, 2022 judgment. This assignment of error is without merit.

Exception of lack of personal jurisdiction

Next, Mr. Ohle argues that the trial court erred in failing to conduct the proper personal jurisdiction analysis. Mr. Ohle further argues that the issue before the trial court was whether or not the trial court had personal jurisdiction over Mr. Uhalt based upon his minimum contacts.

Appellate courts conduct a de novo standard of review of a trial court's finding of personal jurisdiction. Loeb v. Vergara, 2020-0261, p. 78 (La.App. 4 Cir. 1/27/21), 313 So.3d 346, 392 (citing Graham v. Crawford, 2015-1034, p. 9 (La.App. 4 Cir. 9/29/15), 176 So.3d 1148, 1154). As such, this Court must determine whether Louisiana has personal jurisdiction over Mr. Uhalt without deference to the trial court's findings. "[T]he Louisiana Supreme Court subdivided the method of proving an exception of lack of personal jurisdiction into two categories-with a contradictory hearing and without such a hearing." Ohle v. Uhalt, 2016-0569, p. 4 (La.App. 4 Cir. 2/1/17), 213 So.3d 1, 5. This Court in Ohle cited the Supreme Court's explanation as follows:

If there had been a contradictory evidentiary hearing, plaintiff would have had to prove facts in support of her showing that jurisdiction was proper by a preponderance of the evidence. However, under constitutional and codal principles, when the trial court decides the jurisdictional issue without a contradictory evidentiary hearing, as it has done in the present case, the burden of the non-moving party is relatively slight and allegations of the complaint and all reasonable inferences from the record are to be drawn in favor of the non-moving party.

Ohle, 2016-0569, p. 4, 213 So.3d at 5 (quoting de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 109 (La. 1991)). A contradictory hearing on an exception of lack of personal jurisdiction is not considered to have taken place unless live testimony is taken. Id. at p. 4, 213 So.3d at 5 (citing Jacobsen v. Asbestos Corp. Ltd., 2012-655, pp. 6-7 (La.App. 5 Cir. 5/30/13), 119 So.3d 770, 775-76). Particularly, "a contradictory hearing requires more than simply oral argument on the exception of lack of personal jurisdiction." Id. at p. 4, 213 So.3d at 5. Thus, in the absence of a hearing on the merits, plaintiff only needs to make a prima facie showing that the court has jurisdiction under a Louisiana's long-arm statute. Id. at p. 4, n. 4, 213 So.3d at 5.

However, Louisiana courts have routinely ruled on exceptions of lack of personal jurisdiction without a contradictory hearing based solely on written documentation, including the petition and affidavits. Id. at p. 5, 213 So.3d at 5. As such, "Louisiana courts have accepted the allegations in the petition as true 'except as controverted by the defendant's affidavit.'" Id. at p. 5, 213 So.3d at 5 (quoting Lifecare Hospitals, Inc. v. B &W Quality Growers, Inc., 39,065, p. 8 (La.App. 2 Cir. 10/27/04), 887 So.2d 624, 630).

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