Estate of Kirsh v. Blanchard

Full title: ESTATE OF AGNES KIRSH v. JEFFERY A. BLANCHARD, ET AL.

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Aug 9, 2012

NUMBER 2011 CA 1835 (La. Ct. App. Aug. 9, 2012)

Opinion

NUMBER 2011 CA 1835

08-09-2012

ESTATE OF AGNES KIRSH v. JEFFERY A. BLANCHARD, ET AL.

Jerri G. Smitko Catherine R. Gauthier Houma, LA Attorneys for Plaintiff - Appellant Estate of Agnes Kirsh Michael J. Scurto Houma, LA and Robert B. Butler, III Baton Rouge, LA Attorneys for Defendant - Appellee Mary Cox Blanchard, Provisional Administratrix of the Succession of Jeffrey A. Blanchard Sidney C. Sundbery Houma, LA Attorney for Defendant - Appellee Bank One, N.A. Margaret F. Swetman George D. Fagan New Orleans, LA Attorneys for Defendant - Appellee Nationwide Life & Annuity Insurance Company

WELCH

NOT DESIGNATED FOR PUBLICATION

Appealed from the

32nd Judicial District Court

In and for the Parish of Terrebonne, Louisiana

Trial Court Number 133,115

Honorable David W. Arceneaux, Judge

Jerri G. Smitko

Catherine R. Gauthier

Houma, LA

Attorneys for

Plaintiff - Appellant

Estate of Agnes Kirsh

Michael J. Scurto

Houma, LA

and

Robert B. Butler, III

Baton Rouge, LA

Attorneys for

Defendant - Appellee

Mary Cox Blanchard,

Provisional Administratrix of

the Succession of Jeffrey A.

Blanchard

Sidney C. Sundbery

Houma, LA

Attorney for

Defendant - Appellee

Bank One, N.A.

Margaret F. Swetman

George D. Fagan

New Orleans, LA

Attorneys for

Defendant - Appellee

Nationwide Life & Annuity

Insurance Company

BEFORE: PETTIGREW, McCLENDON, AND WELCH, JJ.

WELCH , J.

Plaintiff, Thomas K. Bourg, in his capacity as the executor of the estate of Agnes Kirsh, appeals three summary judgments rendered in favor of defendants, Nationwide Life & Annuity Insurance Agency (Nationwide), Jeffrey Blanchard, and Bank One, N.A. We dismiss the appeals of the summary judgments rendered in favor of Nationwide and Mr. Blanchard and affirm the summary judgment rendered in favor of Bank One.

BACKGROUND

On January 1, 2000, Agnes Kirsh died, and her succession was opened. On August 31, 2010, Mr. Bourg, in his capacity as the executor of Mrs. Kirsh's estate, filed this lawsuit seeking to recover funds owned by Mrs. Kirsh that were used to purchase two annuity contracts and for damages. Named as defendants were Mr. Blanchard, to whom the proceeds of the annuity contracts were issued following Mrs. Kirsh's death, Bank One, the institution where the annuity contracts were purchased, and Nationwide, which sold and issued the two single premium deferred annuity policies to Mrs. Kirsh. In the petition, Mr. Bourg alleged that Mrs. Kirsh's funds were used to purchase two $100,000.00 annuity contracts from Nationwide and that following her death, Mr. Blanchard fraudulently and without proper authority converted the two annuity contracts into a single contract having a value of approximately $197,058.91. The petition alleged that the transfer was facilitated and carried out by Mona Rogers, an agent and employee of Bank One. Mr. Bourg claimed that Mrs. Kirsh's estate (hereafter "the Estate") had been damaged by the negligent, intentional, and fraudulent acts of Mr. Blanchard, including but not limited to: (1) exceeding the scope of his mandate; (2) conversion; (3) misappropriation; (4) theft; (5) fraudulent misrepresentation; and (6) undue influence. The petition further alleged that the Estate had been damaged by the negligent acts and omissions of Bank One and Nationwide in a number of respects, including allowing Mr. Blanchard to transfer Mrs. Kirsh's funds in violation of their own policies, in negligently allowing the conversion of the Estate's funds, and in distributing the funds to Mr. Blanchard in violation of Louisiana law and the rights of the Estate. The Estate alleged it suffered damages in the amount of the corpus of the two annuity accounts totaling approximately $200,000.00 and the loss of interest or dividends on those funds. The Estate sought to recover all damages, attorney's fees, and costs.

The Estate filed motions for summary judgment against Bank One and Nationwide. Nationwide, Mr. Blanchard, and Bank One filed motions for summary judgment against the Estate. The annuity contracts, affidavits, and deposition testimony was offered by all parties in support of and in opposition to the motions for summary judgment. Mr. Blanchard filed a reconventional demand against the Estate, seeking attorney's fees and expenses incurred while acting as a mandatary for Mrs. Kirsh in the amount of $82,044.74. Mr. Blanchard also filed a third party demand against Bank One and Nationwide, asserting that if the court found the annuity contracts were invalid, he is entitled to damages, reimbursement for any fees and costs he incurred in connection with the lawsuit, and to indemnity for any amount he may have to pay on the Estate's main demand. Nationwide filed a cross claim against Mr. Blanchard seeking to recover all amounts it may be liable to pay to the Estate if the court determined that the annuities were not properly issued or that Mr. Blanchard was not the proper payee. Nationwide further claimed that if the annuities were deemed void or invalid for any reason, it was entitled to rescind the contracts and recover all payments made to Mr. Blanchard pursuant to the contracts. Additionally, Nationwide also filed a motion for summary judgment seeking to dismiss the third party demands filed against it by Mr. Blanchard.

On June 14, 2004, the trial court rendered judgment denying the Estate's motion for summary judgment against Bank One. On August 25, 2010, the trial court signed a judgment denying the Estate's cross motion for summary judgment against Nationwide and granting Nationwide's motion for summary judgment, dismissing all claims of the Estate against Nationwide with prejudice. In the judgment, the trial court declared that the judgment is not a final judgment pursuant to La. C.C.P. art. 1915. Thereafter, on September 7, 2010, the trial court signed a judgment granting Mr. Blanchard's motion for summary judgment and dismissing all of the Estate's claims against Mr. Blanchard with prejudice. Again, the trial court declared in the judgment that the judgment is not a final judgment pursuant to Article 1915.

On December 6, 2010, following a hearing on Bank One's motion for summary judgment, the trial court signed a judgment granting Bank One's motion for summary judgment and dismissing all claims of the Estate against it. The court also granted Nationwide's motion for summary judgment against Mr. Blanchard, dismissing all of Mr. Blanchard's claims against Nationwide with prejudice. Additionally, the judgment reserved Mr. Blanchard's reconventional demand against the Estate and dismissed with prejudice any claims by any party against any other party. The trial court designated this judgment and the judgments the court signed on August 25, 2010, and September 7, 2010, as final judgments pursuant to La. C.C.P. art. 1915B, finding no just reason for further delaying the entry of final judgments on all other principal and incidental claims and disputes between the parties.

On December 28, 2010, the Estate filed a motion and order for a devolutive appeal of the judgment signed on December 6, 2010. Thereafter, Nationwide, JP Morgan Chase Bank, N.A., successor by merger to Bank One, and Mr. Blanchard filed motions to dismiss the appeal, asserting that the costs were not timely paid and the Estate's attempt to designate the record on appeal was not filed within the time delays permitted by law. On May 5, 2011, the trial court signed a judgment denying the motions to dismiss the appeal and decreeing that the attempted designation of the record was invalid. On June 3, 2011, following Mr. Blanchard's death, the trial court signed a judgment substituting Mary Cox Blanchard, the provisional administratrix of Mr. Blanchard's succession, for Mr. Blanchard in all capacities in which he was formerly a party.

In this appeal, the Estate challenges the granting of the summary judgments in favor of Nationwide, Mr. Blanchard, and Bank One.

APPELLATE JURISDICTION

After oral arguments were conducted in this case, Nationwide filed a motion to dismiss the appeals against it and Mr. Blanchard, urging that this court lacks appellate jurisdiction to review those appeals. We agree.

This court has a duty to examine subject matter jurisdiction on its own motion. City of Baton Rouge v. Turner, 2010-1192 (La. App. 1st Cir. 5/6/11), 64 So.3d 424, 425. It is well settled that appellate courts do not acquire jurisdiction of appeals unless they are timely perfected. Johnson v. Odom, 470 So.2d 988, 993 (La. App. 1st Cir.), writ denied, 476 So.2d 355 (La. 1985).

Louisiana Code of Civil Procedure article 2083 provides that a final judgment is appealable in all causes in which appeals are given by law. Louisiana Code of Civil Procedure article 1915 authorizes a trial court to render a partial final judgment even though the judgment does not grant the successful parties all of the relief prayed for or does not adjudicate all of the issues in the case. In Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So.2d 64, 66, the Louisiana Supreme Court explained "final judgments" and "partial final judgments" and their effect on the appellate process as follows:

A judgment is a determination of the rights of the parties which may grant any relief to which the parties are entitled. La. Code Civ. Proc. Art. 1841. A final judgment is one that determines the merits of the case in whole or part. Id. A court has the universal power to render a final judgment that decides the entirety of the merits of the case. However, La. Code Civ.Proc. art. 1915 provides an exclusive list of the partial final judgments by which a court may grant relief to the parties. Thus, a judgment that determines the entirety of the merits of an action is appealable under La. Code Civ. Proc. Art. 2083, but a judgment that only partially determines the merits of the action is a valid partial final judgment (and therefore appealable) only if authorized by Article 1915.

Paragraph A of Article 1915 sets forth six circumstances under which a trial court may render a partial final judgment. Specifically, Article 1915A(3) provides that a final judgment may be rendered and signed by the court when the court grants a motion for summary judgment as provided by Articles 966 through 969 of the Code of Civil Procedure, but not including a summary judgment granted pursuant to article 966E. Louisiana Code of Civil Procedure article 966E states in part that a "summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case...." The summary judgments rendered in this case were not partial summary judgments under Article 966E as the judgments dismissed with prejudice all of the Estate's claims against Nationwide and Mr. Blanchard in the principal demand. Moreover, because the summary judgments disposed entirely of the Estate's claims against Nationwide and Mr. Blanchard, they were not partial summary judgments under Article 1915B(1), which requires certification of partial summary judgments rendered as to less than all of the claims, demands, issues, or theories, whether in the original demand, reconventional demand, cross-claim, third party claim, or intervention. The comments to Article 1915 make it clear that a partial summary judgment under Article 966E is covered under Article 1915B.

The summary judgments rendered in favor of Nationwide and Mr. Blanchard are final judgments under Article 1915A(3). Louisiana Code of Civil Procedure article 968 declares that summary judgments are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been conducted. The judgments were immediately appealable pursuant to La. C.C.P. art. 1911, which provides that an appeal may be taken from a final judgment under Article 1915 A without the judgment being so designated. The trial court's signing of the final summary judgments on August 25, 2010, and September 7, 2010, triggered the running of the appeal delays provided for in La. C.C.P. articles 2087 and 2123.

If no application for a new trial or judgment notwithstanding the verdict has been filed, a devolutive appeal of a final judgment must be taken within 60 days of the expiration of the delay for applying for a new trial or judgment notwithstanding the verdict as set forth in La. C.C.P. articles 1974 and 1811, if no application has been filed timely. La, C.C.P. art. 2087. Under Articles 1974 and 1811, the delay for applying for a new trial or a judgment notwithstanding the verdict is seven days, exclusive of legal holidays, and commences to run on the day after the clerk has mailed, or the sheriff has served, notice of judgment as required by article 1913. Notice of the signing of a final judgment, including a partial judgment under Article 1915, is required in all contested cases, and must be mailed by the clerk of court to counsel of record for each party. La. C.C.P. art. 1913.

The record reflects that the trial court signed the judgment granting summary judgment in favor of Nationwide and dismissing all of the Estate's claims against Nationwide with prejudice on August 25, 2010. The record contains a certification by the clerk that a copy of the notice of the August 25, 2010 judgment was served on counsel for all parties by mail on August 27, 2010. On September 7, 2010, the trial court signed the judgment granting summary judgment in favor of Mr. Blanchard, dismissing all of the Estate's claims against Mr. Blanchard with prejudice. The record contains a certification that notice of the September 7, 2010 judgment was mailed to all parties on September 14, 2010, No motion for a new trial or judgment notwithstanding the verdict was filed within the seven day delay provided for in La. C.C.P. articles 1974 or 1811. Therefore, the 60-day delay for filing a devolutive appeal of the summary judgment rendered in favor of Nationwide began to run on September 9, 2010, while the appeal delay for filing an appeal of the summary judgment rendered in favor of Mr. Blanchard began to run on September 23, 2010. The Estate did not file a motion for an appeal of the judgments until December 28, 2010, outside the 60-day limitation for appealing either judgment.

In this case, the trial court purported to transform the final summary judgments rendered in favor of Nationwide and Mr. Blanchard into non-final partial summary judgments by decreeing in the judgments that they were not final judgments. However, just as a trial court cannot transform a judgment for which an appeal is not authorized at law into a final appealable judgment, a trial court cannot transform a final appealable judgment into an interlocutory ruling to prevent the appeal delays from running. The trial court's designation of the judgments as non-final judgments could not suspend the delays for appealing the summary judgments because the appeal delay found in Article 2087 is not a prescriptive period subject to interruption. Instead, this time limit is jurisdictional. Because the timeliness of an appeal is a jurisdictional matter, neither a trial court nor an appellate court has authority to extend the delays for seeking an appeal. Seaman v. Seaman, 2010-1295 (La. App. 3rd Cir. 12/15/10), 54 So.3d 756, 760.

A court lacks the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing an appeal has elapsed. Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La. App. 1st Cir. 5/6/11), 64 So.3d 883, 886, writ denied, 2011-1169 (La. 9/16/11), 69 So.3d 1149. Accordingly, when an appellant fails to appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged. Held v. Aubert, 2002-1486 (La. App. 1st Cir. 5/9/03), 845 So.2d 625, 636.¹ Because the Estate did not appeal the summary judgments rendered in favor of Nationwide and Mr. Blanchard within the delays permitted by law, this court has no jurisdiction over the appeal of those summary judgments. Therefore, we are constrained by law to dismiss the appeals of the summary judgments rendered in favor of Nationwide and Mr. Blanchard.

1 Louisiana Code of Civil Procedure article 2161 provides that an appeal should not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant. This provision does not include the failure to bring the appeal within the requisite period. Martin v. Freiberger, 2002-188 (La. App. 5th Cir. 6/26/02), 822 So.2d 810, 811.

SUMMARY JUDGMENT

We shall now review the propriety of the granting of the motion for summary judgment in favor of Bank One. This court reviews summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Bickham v. Louisiana Emergency Medical Consultants, Inc., 2010-0535 (La. App. 1st Cir. 11/1/10), 52 So.3d 162, 164. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. 966B.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. If the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966C(2). Any doubt as to a dispute regarding a material issue of fact must be resolved against the motion and in favor of a trial on the merits. Lewis v. Four Corners Volunteer Fire Department, 2008-0354 (La. App. 1st Cir. 9/26/08), 994 So.2d 696, 698.

In its motion for summary judgment, Bank One urged that it could not be held liable for breach of contract because it was not a party to the annuity contracts entered into between Mrs. Kirsh and Bank One. Bank One pointed out that the annuity contracts were drafted by Nationwide and provided by Nationwide to Banc One Insurance Agency and that the annuity policies were sold by Banc One Insurance Agency as Nationwide products. Furthermore, Bank One argued, there is no basis upon which to find it liable with respect to the distribution of the annuities to Mr. Blanchard because the annuity funds were properly paid to Mr. Blanchard according to the terms of the annuity contracts, there is no evidence of negligent acts or omissions by Bank One in connection with the issuance of the annuities in question, and there is no evidence that the bank did anything improper, illegal, or unethical. Bank One also stressed that the court had previously held, in granting the earlier motions for summary judgment, that there was no wrongdoing on the part of Nationwide or Mr. Blanchard and that Mr. Blanchard was entitled to the annuity proceeds.

In support of the motion, Bank One submitted the annuity contracts, the affidavits of Mr. Blanchard, its employee, Ms. Rogers, and Jeffrey Worf, along with Nationwide's deposition and the depositions of Mr. Bourg, Mr. Blanchard, and Ms. Rogers. Additional documents attached to Ms. Rogers' affidavit included an April 4, 2000 letter from Ms. Rogers on Bank One letterhead addressed to Nationwide requesting that both policies be cancelled due to Mrs. Kirsh's death and requesting that the checks be mailed to Mr. Blanchard, along with copies of the checks issued by Nationwide to Mr. Blanchard. Documents attached to Mr. Bourg's deposition included the petition to execute Mrs. Kirsh's will, a copy of the will, and a power of attorney granted by Mrs. Kirsh to Mr. Bourg on March 17, 1999.

The first annuity contract entered into between Nationwide and Mrs. Kirsh contains an application page that lists Mrs. Kirsh as the owner and the beneficiary and Mr. Blanchard as the annuitant. On the application, there is a blank for the joint owner's name; the term "joint" is scratched out and replaced with "contingent," and Mr. Blanchard is listed as the contingent owner. The data page of the contract lists Mrs. Kirsh as the owner, Mr. Blanchard as the annuitant and states that the beneficiary is listed on the application unless changed. The contract provides that if the owner dies, a distribution will be made in accordance with the "Death of the Contract Owner" provision of the contract. That provision states that if the owner dies before the annuitization date, if the owner and the annuitant are not the same person, the joint owner, if any, becomes the contract owner, and if no joint owner is named, the contingent owner becomes the contract owner. However, if there is no contingent owner, the contract owner's estate becomes the contract owner. Unless the new contract owner is the former owner's spouse, the entire interest in the contract must be distributed to the new contract owner within five years of the prior owner's death. The data page of the annuity contract sets forth an annuitization date of February 1, 2021.

On October 20, 1999, Mrs. Kirsh executed a power of attorney appointing Mr. Blanchard as her agent and attorney-in-fact, giving him full power and authority to act for and in her name, including the authority to conduct, manage, and transact her personal financial matters of every nature and kind without any exception whatsoever. The power of attorney also authorized Mr. Blanchard to draw money out of any bank in which funds may be on deposit in Mrs. Kirsh's name or for her account.

On November 19, 1999, Mr. Blanchard went to Bank One with the power of attorney and purchased the second annuity on behalf of Mrs. Kirsh, signing her name thereto as owner of the contract pursuant to the power of attorney. The second annuity purchase was handled by Ms. Rogers. The application for the second annuity lists Mrs. Kirsh as the primary owner and Mr. Blanchard as the primary beneficiary. On one version of the application for the second annuity appearing in the record, the blank for annuitant is left blank, while on another, the words "same as owner" are written in the blank. However, the data page of the contract lists Mrs. Kirsh as the owner and the annuitant and refers to the application for the beneficiary. The second annuity contract provides that if the contract owner and the annuitant are the same person, and such person dies prior to the annuitization date, the death benefit shall be payable to the beneficiary. On that same date, Mr. Blanchard executed a beneficiary form for the first annuity, listing himself as the primary beneficiary, signing Mrs. Kirsh's name thereto pursuant to the power of attorney.

Throughout this litigation, Nationwide has maintained that it properly paid Mr. Blanchard the proceeds of both annuities pursuant to the language of the annuity policies. Nationwide's consultant manager, Michael Morrone, testified regarding the annuity contracts in question, Nationwide's customary practices in handling annuity contracts, and Nationwide's relationship with Bank One. He stated that upon receipt of the payment request from Mr. Blanchard, Nationwide's annuity analyst would have reviewed the entire file, and based on the contract language, would make a determination as to who is the rightful owner. Documentation in Nationwide's records indicated that Nationwide's compliance officer approved of Mr. Blanchard's power of attorney. Mr. Morrone explained that Nationwide provides the annuity products and Banc One Insurance Company sold the products.

In his affidavit, Mr. Blanchard made the following attestations: Mr. Blanchard knew Mrs. Kirsh since 1957, one year prior to his marriage to Mrs. Kirsh's niece. He began working for the Kirshes in 1959 and lived on the same street as Mrs. Kirsh since the 1960s. On January 30, 1998, at Mrs. Kirsh's request, Mr. Blanchard went to the main banking office of Banc One in Houma with Mrs. Kirsh. After a thorough discussion with Robin Naquin and Mona Rogers of Bank One, Mrs. Kirsh decided to invest a mature Certificate of Deposit (CD) into a $100,000.00 annuity. It was Mrs. Kirsh's stated wishes that upon her death, she wanted Mr. Blanchard to have the proceeds. Also on that day, Mrs. Kirsh expressed her desire to cash in a second CD to acquire another CD and put the proceeds in Mr. Blanchard's name. However, Bank One representatives talked her out of that because the second CD had not yet matured. Mrs. Kirsh stated that when the second CD finally matured, she wanted to be notified by Bank One and she would acquire the second annuity at that time and name Mr. Blanchard as the beneficiary.

On October 20, 1999, Mrs. Kirsh granted Mr. Blanchard a power of attorney to handle her affairs. On November 6, 1999, Mrs. Kirsh broke her hip. Ms. Rogers informed Mrs. Kirsh that the second CD had matured, and Mrs. Kirsh instructed Mr. Blanchard to go to Bank One and meet with Ms. Rogers, which Mr. Blanchard did on November 19, 1999. Mr. Blanchard presented Ms. Rogers with the Power of Attorney and Ms. Rogers prepared documents which Mr. Blanchard signed on behalf of Mrs. Kirsh, as per Ms. Roger's instructions. Ms. Rogers gave Mr. Blanchard a copy of the application and annuity contract, which Mr. Blanchard brought back to Mrs. Kirsh. Following Mrs. Kirsh's death, Mr. Blanchard went to Bank One on April 4, 2000, and met with Ms. Rogers, who prepared a letter for him to sign. The record reflects that on April 4, 2000, a letter was written to Nationwide on Bank One letterhead asking that both policies be cancelled due to Mrs. Kirsh's death and requesting that the checks be mailed to Mr. Blanchard at Bank One's address, directed to the attention of Ms. Rogers. Nationwide's two checks were issued payable to Mr. Blanchard in the amount of $101,009.28 for the first annuity and $95,483.62 for the second annuity. Mr. Blanchard received the checks and used them to purchase his own annuity.

In his deposition, Mr. Blanchard added that with respect to the second annuity, Mrs. Kirsh told him she wanted it set up just like the first annuity. He stated that Mrs. Kirsh approved of the annuity contract but declined to sign it because of her arthritis and that Mrs. Kirsh told him to sign the document.

In her affidavit, Ms. Rogers attested to the following: On November 19, 1999, while acting as a licensed agent for Banc One Insurance Services Corporation, Ms. Rogers met with Mr. Blanchard. Mr. Blanchard came to Ms. Rogers as the agent for Mrs. Kirsh acting under a Power of Attorney. Mrs. Kirsh had a $100,000.00 CD that matured, and Mr. Blanchard explained that it was Mrs. Kirsh's desire to invest that $100,000.00 in an annuity, with the annuity to be in Mrs. Kirsh's name as owner, and set up in such a way that Mr. Blanchard would receive the annuity proceeds upon Mrs. Kirsh's death. Ms. Rogers had an earlier telephone conversation with Mrs. Kirsh in which Mrs. Kirsh told her that upon maturity of the CD, she wanted to purchase an annuity and set it up so that Mr. Blanchard would receive the proceeds upon her death. Ms. Rogers was aware that Mrs. Kirsh had purchased a $100,000.00 annuity in 1998. Ms. Rogers discussed the matter fully with Mr. Blanchard and prepared an application for an annuity, which was obtained from Nationwide. Ms. Rogers gave a copy of the application and the policy to Mr. Blanchard and forwarded the application to Bank One Insurance Corporation. In April 2000, following Mrs. Kirsh's death, Mr. Blanchard presented Ms. Rogers with the death certificate and told her that he wanted to receive the proceeds of the two annuity policies that had been purchased by Mrs. Kirsh from Nationwide. Ms. Rogers prepared for Mr. Blanchard's signature a written request to Nationwide to receive the policy proceeds. Mr. Blanchard signed the request, and a copy of the request and the death certificate were sent to Nationwide, which issued the two checks payable to Mr. Blanchard.

In her deposition, Ms. Rogers added that Mrs. Kirsh had been a customer of the bank since March 1987. She testified that she called Mrs. Kirsh to tell her that the second CD had matured and that Mrs. Kirsh told her that she wanted to do the same thing she had done with the other CD—to establish an annuity with Mr. Blanchard as the beneficiary. She also testified that Mrs. Kirsh wanted to cash in both of her CDs when she first came into the bank with Mr. Blanchard and convert them to annuities, but Mrs. Kirsh would have had a penalty on the second CD as it had not yet matured. Ms. Rogers also testified that another bank employee, Robin Naquin, wrote the first annuity contract and that she did not assist in that transaction, but that she was with an employee in training so that she was able to hear their conversation.

In his deposition, Mr. Bourg acknowledged the close relationship Mr. Blanchard had with the Kirshes, having worked for the Kirshes in their body shop since 1959. He admitted that Mr. Blanchard assisted Mrs. Kirsh on a daily basis after her husband, Albert, passed away, providing her with meals and help around the house. Even before Mr. Kirsh passed away, Mr. Blanchard assisted the Kirshes because Mr. Kirsh had been involved in an accident, and Mr. Blanchard provided for their daily needs, including cooking and purchasing groceries. Mr. Bourg stated that it was his belief that Mr. Blanchard influenced his aunt's decision to sign the first annuity. He also stated that he became suspicious of Mr. Blanchard when Mrs. Kirsh was hospitalized and Mr. Blanchard's wife would not let any family members have personal time with Mrs. Kirsh. He felt that Mr. Blanchard misrepresented the fact that Mrs. Kirsh's funds had been used to purchase the second annuity. He testified that when he was attempting to reconstruct Mrs. Kirsh's financial situation following her death, Mr. Blanchard was uncooperative, and when he confronted Mr. Blanchard about the missing $100,000.00, Mr. Blanchard failed to mention the conversion of the funds into the second annuity.

In his affidavit, Mr. Worf, secretary of Banc One Insurance Agency, attested that he was familiar with the relationship between Banc One and Nationwide and that Banc One, acting through licensed insurance agents, sells and markets Nationwide's products using Nationwide's application forms and policy forms. He stated that the insurance and annuity policies are sold by Banc One as Nationwide products and that Nationwide reviews all documents and makes the decision whether or not to accept the applicant as a Nationwide policyholder. Mr. Worf attested that neither of the annuity contracts were issued in connection with a qualified plan. He further attested that upon Mrs. Kirsh's death, it was Nationwide's decision to pay Mr. Blanchard the proceeds of the annuities and Banc One played no part and had no say in those decisions or actions.

In opposition to the motion for summary judgment, the Estate argued that there was a contractual relationship in effect between Bank One and Mrs. Kirsh with respect to both annuities, and that Bank One breached its contract with Mrs. Kirsh when its agents improperly authorized payment of the funds of the annuities to Mr. Blanchard following Mrs. Kirsh's death. Secondly, the Estate urged, Bank One was negligent in allowing the funds to be paid to Mr. Blanchard.

At the hearing on Bank One's motion for summary judgment, the Estate offered into evidence everything it had previously offered into evidence in connection with the previous motions for summary judgment. The record reflects that early on in the litigation, the Estate filed a motion for summary judgment against Bank One, urging it was entitled, as a matter of law, to recover the funds disbursed by Nationwide to Mr. Blanchard because Bank One breached the annuity contract and acted negligently in releasing the funds to Mr. Blanchard. In support of the motion, at a hearing held thereon, the Estate offered into evidence copies of the Nationwide annuity contracts, Bank One's responses to request for admissions, Nationwide's responses to requests for production of documents, and Ms. Rogers' deposition, taken on September 24, 2002, along with the exhibits attached to that deposition. Attached to the deposition of Ms. Rogers were the following documents: an annuity packet, explaining the benefits of a fixed annuity, the power of attorney granted to Mr. Blanchard by Mrs. Kirsh, the bank's policies and procedures with respect to power of attorney documents, an annuity summary sheet, the bank's customer information sheet on Mrs. Kirsh, both annuity applications, and a January 28, 1998 letter in which the bank informed Mrs. Kirsh that Mr. Bourg could not be taken off of her CD without his signature. The record further shows that in connection with the other motions for summary judgment, the Estate offered the depositions of Nationwide and Mr. Bourg.

Following a hearing, the trial court found that there was no genuine issue of material fact for trial, finding that Bank One did what it had been asked to do and that it followed the instructions of Mrs. Kirsh on the first annuity and followed the instructions of Mrs. Kirsh and Mr. Blanchard on the second annuity. The court concluded that there was no evidence that the ultimate result in this case—the receipt of the funds by Mr. Blanchard—was contrary to Mrs. Kirsh's intentions. In short, the court found that based on the evidence on the motion, Mrs. Kirsh intended the money to go to Mr. Blanchard, this is precisely what happened, and therefore, there was no issue of material fact as to Bank One's liability to the Estate.

In this appeal, the Estate argues that Bank One had a contractual relationship with Mrs. Kirsh and that Bank One breached its contracts with her when its agents improperly authorized payment of the funds of the annuities to Mr. Blanchard following Mrs. Kirsh's death. However, the evidence on the motion for summary judgment demonstrates that the Estate cannot succeed on a breach of contract theory at trial as Bank One was not a party to the annuity contracts and did not make the determination that Mr. Blanchard was entitled to the proceeds of the annuity contracts. The undisputed evidence on the motion for summary judgment established that a contractual relationship existed between Mrs. Kirsh, the owner of the policies, and Nationwide, the company that issued the policies. Banc One Insurance Agency, acting through licensed insurance agents, including Bank One's employees, sold and marketed Nationwide's products. Nationwide reviews all of the documentation and makes the determination whether to accept an applicant for one of its policies. Nationwide determines, pursuant to the terms of the contracts, who is entitled to collect the proceeds of the annuity in the event the contract owner dies prior to the annutization date. In this case, Nationwide determined that Mr. Blanchard was entitled to payment of the annuities upon Mrs. Kirsh's death pursuant to the language of the contracts. The uncontradicted evidence established that Bank One had no say in determining how the proceeds of the annuity contracts would be distributed upon Mrs. Kirsh's death.

We agree with the trial court that the evidence on the motion for summary judgment fails to demonstrate any wrongdoing on the part of Bank One for which Bank One could be held liable to the Estate for damages. The Estate did not demonstrate that Bank One acted contrary to Mrs. Kirsh's wishes or breached any fiduciary duty it may have owed to its long-time customer, Mrs. Kirsh. Under these circumstances, we must conclude that the trial court acted properly in granting the motion for summary judgment in favor of Bank One and in dismissing all of the Estate's claims against Bank One.

CONCLUSION

For the foregoing reasons, the summary judgment rendered in favor of Bank One, N.A. is hereby affirmed. The appeals of the summary judgments rendered in favor of Nationwide Life & Annuity Insurance Agency and Jeffrey Blanchard are hereby dismissed. All costs of this appeal are assessed to appellant, the Estate of Agnes Kirsh.

APPEAL DISMISSED IN PART; AFFIRMED AND REMANDED.

2011 CA 1835

ESTATE OF AGNES KIRSH

VERSUS

JEFFERY A. BLANCHARD, ET AL.

McCLENDON, J., agrees in part and dissents in part.

While I agree with the opinion of the majority affirming the summary judgment rendered in favor of Bank One, I must respectfully disagree with the majority with regard to the dismissal of the appeal as to Nationwide and Mr. Blanchard. I do not think that the litigants should be penalized for relying on the erroneous order of the trial court regarding the finality of the judgment. Generally, appeals are favored, and I find the factual situation before us analogous to the line of jurisprudence allowing parties to proceed on a writ application even where the trial court has set a deadline outside that provided by the Code of Civil Procedure. See Rainey v. Entergy Gulf States, Inc., 00-2329 (La. 8/4/00), 766 So.2d 1264. Moreover, LSA-C.C.P. art. 2164 provides that the appellate court shall render a judgment that is just, legal, and proper upon the record on appeal. Accordingly, I respectfully dissent.