Monday, March 10, 2014

The Checking Account, the "Telephone Transfer" and Wrongful Conversion

This post examines a recent opinion from the Louisiana Court of Appeals in which it addressed a man’s “claim of wrongful conversion against his former live-in girlfriend.”  Carter v. Briggs, 2014 WL 738067 (2014).  The claim went to trial, and the trial judge found for the defendant – Briggs.  Carter v. Briggs, supra.  Briggs then appealed.

The Court of Appeals begins its analysis of the case by outlining the relevant facts:

The parties agree that in January 2010, [Donwick] Carter moved in with Ms. [Bonnie F.] Briggs, her daughter and granddaughter in her apartment in the Town & Country area of north Monroe. They also agree that Carter promised to pay the family's grocery bills and one-half the rent. Carter testified that during this time, he was receiving food stamps, drawing worker's comp benefits and working part-time at Pine Valley cookie dough company in West Monroe, taking home about $950 a month total.

Ms. Briggs, however, testified that he was unemployed the whole time, just sitting around the house, and after she lost her job at Synergy, she started borrowing from relatives to make ends meet. There was much testimony . . . about the $800 Ms. Briggs had to borrow to attend a cousin's funeral in Houston, Texas, in late August 2011.

Also in August 2011, Carter received a lump-sum worker's comp settlement of $33,000. After spending some of the money, he went to Chase Bank on August 23 and opened a checking account, depositing $21,713. He testified that he never gave Ms. Briggs, or anyone else, authorization to access this account.

Carter v. Briggs, supra (emphasis in the original).

The court goes on to explain that by

this time, Ms. Briggs felt Carter should go back to work. Searching online, she found and helped him fill out an application for a job as a truck driver with Central Refrigerated Service. The training . . . was in Salt Lake City, Utah. Carter testified that the following Friday (this would have been August 26, 2011), he boarded a Greyhound Bus to make the two-day trip to Utah.

A few days later, he went to a branch of Chase Bank to withdraw $200 in spending money. He testified that he discovered $7,600 missing from his account; he `exploded’ and told bank personnel he had `been robbed.’ According to Carter, someone at the bank told him that a `telephone transfer’ had removed the funds from his account and placed them in Ms. Briggs's.

Carter immediately phoned Ms. Briggs; he testified she left him a voicemail admitting she took the $7,600, and he later played this to Monroe Police. Ms. Briggs, however, denied admitting anything, and argued the police could not have known whose voice was on the VMS. According to Ms. Briggs, Carter told her he had placed the money in her account so she could pay off their loans. He also told her not to worry about it, as the folks at Chase Bank assured him that if it was a fraudulent transfer, the bank would `recredit’ his account.

Carter v. Briggs, supra (emphasis in the original).

The opinion says Carter

promptly took a return bus to Monroe; on September 4, he reported the theft to Monroe Police, playing the VMS to Sgt. Staten. Sgt. Staten testified he was `not 100% sure’ it was Ms. Briggs's voice. He also testified that Carter told him he had left Ms. Briggs some four months earlier, even though he still had clothes and a computer at the apartment.

(Carter later admitted `fudging’ in the police report, but said it was the only way to get police assistance to enter the apartment and retrieve his belongings.)

Sgt. Staten wrote up an arrest warrant which was not executed until `several months later.’

Carter v. Briggs, supra.

The Court of Appeals also notes that after Carter

accused Ms. Briggs of theft, recriminations followed. On September 7, 2011, Ms. Briggs called the Ouachita Parish Sheriff's Office to report that Carter had stolen a pallet jack and several buckets of cookie dough from his former employer, Pine Valley, and faked the knee injury for which he drew weekly comp benefits and, later, the lump sum settlement; he bragged that he could `get away with this’ (scamming Chase Bank) the same way he `got away with Pine Valley.’

Carter denied everything, and testified that as a result of Ms. Briggs's false report, he was arrested, locked up for 20 days in Salt Lake City, and has spent $2,000 in attorney fees defending the charges.

Carter v. Briggs, supra.

In August of 2012, Carter filed this lawsuit “in Monroe City Court”.  Carter v. Briggs, supra.  In his suit, Carter demanded

restitution of his $7,600 and general damages for wrongful conversion. Ms. Briggs, appearing pro se throughout, answered that Carter transferred the money to her account `to pay the people that he had borrow [sic] from over the course of several months[.]’ In response to discovery, Ms. Briggs listed five family members to whom she had paid a total of $4,833 for loans, and `Repro [sic] car’ of $2,500, to get her car out of repossession.

Carter v. Briggs, supra.

The case went to trial in January of 2013.  Carter v. Briggs, supra.  At the trial,

Carter and Sgt. Staten testified as outlined above. Carter also called Felicia Moore, a teller at Chase Bank in Monroe. Ms. Moore confirmed that Carter had opened the account on August 23, 2011, the `telephone transfer’ occurred on August 29, and Carter thought Ms. Briggs did it. She admitted . . . that Chase's records did not show who actually made the transfer, and that only the account holder could change the settings, not by iPhone but by computer.

She theorized that Ms. Briggs, having access to Carter's home PC and personal information, could have changed Carter's account settings and then moved the money out of his account. Ms. Moore confirmed that after receiving a police report of fraud, Chase would normally transfer the money back to the customer's account, but this did not happen here because the bank suspected Carter might have authorized Ms. Briggs to do what she did (also, Ms. Briggs had closed her account by then).

In addition to her own testimony, Ms. Briggs called her sisters, Sarah Thomas and L.D. Briggs, and her son, Kelly Briggs. They corroborated that they had loaned the couple various amounts of money over the months and, in late August 2011, Ms. Briggs repaid them the amounts stated in the discovery response. They admitted that all loans were in cash and without any documentation.

Carter v. Briggs, supra.

After all the witnesses had testified and all the other evidence had been admitted, the judge, “[r]uling from the bench,” told Carter,

`Not one centillion [sic] of any piece of testimony that you have given has been credible to the court.’ Instead, the court branded him `the author of what you thought was an elaborate scheme * * * to accuse the defendant of taking the money without your knowledge or without your authorization and reporting it to the bank or pretending to be surprised and bamboozled’ by the fact the money was gone.

The goal was to pay his debts but `also to have the financial institution to reimburse you, so to speak, or to place the money back in your account.’

By contrast, the court found Ms. Briggs credible and accordingly dismissed Carter's claim.

Carter v. Briggs, supra.

On appeal, Carter made two arguments, one of which involved an issue he did not raise at trial.  As the Court of Appeals noted, “appellate courts do not consider issues that were not raised in the pleadings, were not addressed at trial, or are raised for the first time on appeal.”  Carter v. Briggs, supra.

The other issue, the one Carter did raise at trial, was that the trial judge

erred in crediting Ms. Briggs rather than himself. He argues Ms. Briggs is `demonstrably a person of poor character,’ while there is `no evidence’ he is such, and no rational fact finder could accept certain of her claims (such as that she acted on Carter's instructions, or that she actually paid her family members the money). He also argues the judgment impermissibly shifted the burden of proof by making him disprove the claim of oral authorization to take money from his account.

Carter v. Briggs, supra (emphasis in the original).

The Court of Appeals began its analysis of Briggs’ arguments by noting that the

reviewing court gives much discretion to the trial court's findings of fact. Guillory v. Lee, 16 So.3d 1104 (Supreme Court of Louisiana 2009). . . . When there is conflict in the testimony, the trial court's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable. Guillory v. Lee, supra.  

In short, the appellate court will not reverse unless it finds no reasonable factual basis for the trial court's finding and that the finding is clearly wrong. Kaiser v. Hardin, 2006–2092 (Louisiana Supreme Court 2007). . . . The issue is not whether the trial court was right or wrong, but whether its finding was reasonable. Rosell v. ESCO, 549 So.2d 840 (Louisiana Supreme Court 1989).

Carter v. Briggs, supra.

The court then addressed Carter’s appeal, and explained that

[o]n close review we detect no abuse of discretion. The trial court's findings depended almost entirely on conflicting testimony of the he said, she said variety. True, the court could have rejected Ms. Briggs's account, for the reasons advanced by Carter in brief; however, the court could also reject Carter's account, in light of his admittedly `fudged’ crime report to Sgt. Staten, his history of drawing worker's comp while working for Pine Valley, and his alleged theft of equipment and cookie dough from Pine Valley.

We also note the bank teller's testimony that Chase Bank denied the normal reimbursement because it suspected Carter himself authorized the transfer. This record supports the court's rational finding that Carter transferred, or authorized the transfer of, $7,600 to Ms. Briggs's account and fabricated the theft in a futile effort to make the bank pay him back. We perceive no manifest error.

Carter v. Briggs, supra.

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