MARY SUSAN DARNELL SMITH                     NUMBER:  ___________________

THROUGH HER AGENT

SUZANNE SMITH UPCHURCH

 

VERSUS                                                                    FIRST JUDICIAL DISTRICT COURT

 

MCGUIRE FUNERAL HOME, INC.,

WILLIAM J. (JIMMY) MCGUIRE,

CITIZENS BANK & TRUST COMPANY

OF VIVIAN, LOUISIANA, INC.,

REGIONS BANK, CAPITAL ONE,

NATIONAL ASSOCIATION, FIRST

GUARANTY BANK, and AMERICAN

BANK & TRUST COMPANY                               CADDO PARISH, LOUISIANA

 

 

CLASS ACTION COMPLAINT

FOR MONEY DAMAGES AND INJUNCTIVE RELIEF

 

NOW INTO COURT, through undersigned counsel, comes MARY SUSAN DARNELL SMITH THROUGH HER AGENT SUZANNE SMITH UPCHURCH, appearing individually and on behalf of all others similarly situated, herein referred to as the Representative Claimant, who with respect represents:

                                                                             1.    

The Representative Claimant is MARY SUSAN DARNELL SMITH, a resident of Shreveport, Caddo Parish, Louisiana, through her duly authorized agent, SUZANNE SMITH UPCHURCH.  

                                                                             2.    

Made Defendants herein are:

(A)       MCGUIRE FUNERAL HOME, INC., a  a licensed funeral home operating in Vivian, Louisiana, which may be served through its agent for service of process, W. J. McGuire, at 16060 Old Atlanta Road, Vivian, Louisiana 71082 or at 705 South Spruce Street, Vivian, Louisiana 71082 (hereinafter referred to as “McGuire Funeral Home”);

 

(B)       WILLIAM J. (JIMMY) MCGUIRE, president and manager of McGuire Funeral Home, Inc., who is a resident and domiciliary of Caddo Parish, Louisiana (hereinafter referred to as “William McGuire”);

 

(C)       CITIZENS BANK & TRUST COMPANY OF VIVIAN, LOUISIANA, INC., a Louisiana bank with its principal office in Vivian, Louisiana, which may be served through its agent for service of process, Daniel M. Caldwell, 120 W. Arkansas Avenue, Vivian, Louisiana 71082 (hereinafter referred to as “Citizens Bank”);

 


(D)       REGIONS BANK, a foreign corporation, authorized to do and doing business in the State of Louisiana, which may be served through its agent for service of process, Corporation Service Company, 320 Somerulos Street, Baton Rouge, Louisiana 70802-6129;

 

(E)       CAPITAL ONE, NATIONAL ASSOCIATION, a foreign banking corporation, not authorized to do but doing business in the State of Louisiana, which may be served via the Long Arm Statute at its headquarters located at 1680 Capital One Drive, Mclean, Virginia 22102;

 

(F)       FIRST GUARANTY BANK, a Louisiana bank, which may be served through its agent for service of process, Michael R. Sharp, 400 East Thomas Street, Hammond, Louisiana 70401; and

 

(G)       AMERICAN BANK & TRUST COMPANY, a Louisiana bank, which may be served through its agent for service of process, Stanley M. Dameron, 1819 North Columbia Street, Covington, Louisiana 70433. 

 

                                                                             3.

At all times pertinent hereto, McGuire Funeral Home sold pre-paid funerals under the provisions of La. R.S. 37:861. 

                                                                             4.

In October of 2004, your Petitioner, Mary Susan Darnell Smith, purchased a pre-paid funeral from McGuire Funeral Home by paying $9,110.00 by check.

                                                                             5.

As is required by La. R.S. 37:861, McGuire Funeral Home deposited your Petitioner’s cash into Citizens Bank, which bank issued Certificate of Deposit No. 4836847 in the name of McGuire Funeral Home, Inc. POD of M. Susan Smith.  (POD is an abbreviation of “payable on death”.)  A copy of the aforesaid Certificate of Deposit is annexed hereto as Petitioner’s Exhibit “A”. 

                                                                             6.

Under the provisions of La. R.S. 37:861, the seller of the pre-paid funeral, the defendant, McGuire Funeral Home, was authorized to “withdraw the funds only at the death of the purchaser by presentation of a death certificate copy and a certified funeral statement for the amount to be withdrawn. . . .” 

                                                                             7.

On information and belief, McGuire Funeral Home and in particular the defendant, William McGuire, withdrew Petitioner’s funds in violation of law and the contract (Exhibit “A”) and placed those funds with Regions Bank. 


                                                                             8.

Defendant, Citizens Bank, violated the law and in particular La. R.S. 37:861 and breached its contract (Exhibit “A”) when it allowed McGuire Funeral Home and William McGuire to withdraw Petitioner’s funds prior to her death. 

                                                                             9.

On information and belief, Petitioner’s funds were placed into an account at Regions Bank, also in Petitioner’s name, which account on information and belief was account number 0036939218 and which account bore the name McGuire Funeral Home POD M. Susan Smith. 

                                                                            10.

Within the last thirty (30) days, Petitioner has been informed and alleges on information and belief that her funds were removed by William McGuire from her account at Regions Bank on September 20, 2006, in violation of law and the Regions Bank contract. 

                                                                            11.

On information and belief, Petitioner alleges that William McGuire having removed Petitioner’s funds from Citizens Bank and Regions Bank then converted and appropriated the funds to his own use. 

                                                                            12.

On information and belief, money belonging to putative class members was also deposited into accounts with defendants, Capital One, National Association, First Guaranty Bank, and American Bank & Trust Company, and later removed by William McGuire in violation of the law and the contracts of those banks, and then appropriated and converted to the use of William McGuire.

                                                                            13.

By accepting the deposited funds, each of the above banks became obligated and solidarily liable to the putative class members under Louisiana law and in particular La. Civ. Code art. 1821.


                                                                            14.

Petitioner further alleges on information and belief that William McGuire appropriated and converted in a similar manner the funds of many other persons who had purchased pre-paid funerals from McGuire Funeral Home. 

                                                 CLASS ACTION ALLEGATIONS

                                                                            15.

Petitioner brings this action under Code of Civil Procedure Rule 591, et seq., on behalf of a class consisting of Petitioner and all other individuals from whom William McGuire appropriated and converted funds collected by him for pre-payment of Funeral expenses.

                                                                            16.

On information and belief, it may be necessary to provide for subclasses of such individuals consisting of:

(A)       Persons for whom accounts were opened at Citizens Bank and whose funds were removed in violation of the law and the contract at Citizens Bank;

 

(B)       Persons whose funds were deposited at Regions Bank and were removed in violation of law and the contract with Regions Bank;

 

(C)       Persons whose funds were deposited at Capital One, National Association and were removed in violation of law and the contract with Capital One, National Association;

 

(D)       Persons whose funds were deposited at First Guaranty Bank and were removed in violation of law and the contract with First Guaranty Bank;

 

(E)       Persons whose funds were deposited at American Bank & Trust Company and were removed in violation of law and the contract with American Bank & Trust Company;

 

(F)       Persons whose funds were deposited at one of the above banks, then moved to another of the above banks, and then later converted and appropriated to the use of William McGuire;

 

(G)       Persons who deposited money with William McGuire for pre-paid funerals but whose money was never deposited into any bank account at all, but was instead appropriated and converted by William McGuire to his own use. 

                                                                            17.


Certification of a class is appropriate in that the defendants have acted uniformly with respect to the class, and appropriate relief includes a judgment against each defendant ordering each defendant to return those funds improperly and illegally released and improperly and illegally appropriated and converted.

                                                                            18.

Certification of a class is also appropriate, in that:

(a)        Common questions predominate over any individual questions;

 

(b)        A class action is superior for the fair and efficient adjudication of this controversy;

 

(c)        Many of the individual class members are elderly and infirm and are likely unaware of the fact that their pre-paid burial funds have been improperly released, appropriated, and converted, and those persons who are aware are likely not in a position to commence individual litigation against the defendants; 

 

(d)       In fact, the relatively small amount which was converted from each person renders each claim individually a “negative value” case which cannot, for economic reasons, be individually pursued. 

 

                                                                            19.

The class is so numerous that joinder of all members is impracticable.  Petitioner has been told that there are at least eighty (80) putative class members who are victims, but the exact number of class members is unknown to Petitioner at this time.  The number and identity of those persons is likely discoverable from the records of the defendants, the records of the Louisiana State Board of Embalmers and Funeral Directors, or the Caddo Parish District Attorney’s Office.

                                                                            20.

Petitioner’s claim is typical of the claims of the other members of the class, as Petitioner and all other members of the class were injured in the same way by the violations of Louisiana law and contracts and by the appropriation and conversion of the funds deposited with McGuire Funeral Home for pre-paid funeral services.  The liability of the defendant banks can be determined through reference to Louisiana law and the records of those banks with no need for live testimony on the issues.  (If the banks released funds without proper documentation including death certificates, they have violated Louisiana law and their contracts.)  Petitioner will fairly and adequately protect the interests of the members of the class and has retained competent counsel experienced in class action litigation. 


                                                                            21.

Petitioner has no interests that are contrary to or in conflict with those of the class.

                                                                            22.

A class action is superior to other available methods for the fair and efficient adjudication of this controversy.  Since the damages suffered by individual class members will be relatively small, the expense and burden of individual litigation make it virtually impossible for the class members to individually to seek redress for the wrongful conduct alleged.

                                                                            23.

Petitioner knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a class action.

                                                                            24.

Common questions of law and fact exist as to all members of the class and predominate over any questions affecting solely individual members of the class.  Among the questions of law and fact common to the class are:

(a)        Did William McGuire appropriate and convert funds of class members in violation of La. R.S. 37:861;

 

(b)        Did Citizens Bank, Regions Bank, Capital One, National Association, First Guaranty Bank, and American Bank & Trust Company release the class members’ funds to William McGuire in violation of La. R.S. 37:861 and the banks’ contracts;

 

(c)        Did Citizens Bank, Regions Bank, Capital One, National Association, First Guaranty Bank, and American Bank & Trust Company release funds belonging to the class members without obtaining death certificates.

 

                                                                            25.

Petitioner requests that all defendants maintain and preserve all records of any dealings between or among the defendants with regard to prepaid funerals and all punitive class members.

WHEREFORE, PETITIONER, MARY SUSAN DARNELL SMITH THROUGH HER AGENT, SUZANNE SMITH UPCHURCH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PRAYS for judgment as follows:


I.          Declaring this action to be a proper class action and certifying Petitioner, MARY SUSAN DARNELL SMITH THROUGH HER AGENT, SUZANNE SMITH UPCHURCH, as the proper representative of the Class;

 

II.        Certifying such subclasses as the evidence may reveal are necessary;

 

III.       Awarding damages in favor of Petitioner, MARY SUSAN DARNELL SMITH, and the other members of the Class against Defendants, MCGUIRE FUNERAL HOME, INC., WILLIAM J. (JIMMY) MCGUIRE, CITIZENS BANK & TRUST COMPANY OF VIVIAN, LOUISIANA, INC.,  REGIONS BANK, CAPITAL ONE, NATIONAL ASSOCIATION, FIRST GUARANTY BANK, and AMERICAN BANK & TRUST COMPANY, for the damages sustained as a result of the wrongdoing of Defendants, together with pre-judgment and post-judgment interest thereon;

 

IV.       Awarding Petitioner, MARY SUSAN DARNELL SMITH, and the other members of the Class their costs and expenses incurred in this action, including reasonable allowance of fees for Petitioner’s attorneys and experts, and reimbursement of Petitioner’s expenses;

 

V.        Ordering all defendants to maintain and preserve all records of any dealings between or among the defendants with regard to prepaid funerals and all punitive class members. and

 

VI.       Granting such other and further relief as the Court may deem just and proper.

 

Respectfully submitted,

 

LAW OFFICE OF J. PATRICK HENNESSY

401 Edwards Street, Suite 1310

Post Office Box 91

Shreveport, Louisiana 71161‑0091

(318) 221-8000 Telephone

(318) 221-4300 Facsimile

 

 

 

BY:____________________________________

J. PATRICK HENNESSY (#6791)

 

 

LAW OFFICES OF ROUNTREE & GUIN

400 Travis Street, Suite 1200

Shreveport, Louisiana 71101

(318) 226-0993 Telephone

(318) 226-9200 Facsimile

 

 

 

BY:____________________________________

BILLY J. GUIN, JR. (#06587)

 

ATTORNEYS FOR PETITIONER

 

                                                   (service information on next page)


PLEASE SERVE:

 

MCGUIRE FUNERAL HOME, INC.,

through its agent for service of process,

W. J. McGuire

16060 Old Atlanta Road

Vivian, Louisiana 71082

or

705 South Spruce Street

Vivian, Louisiana 71082

 

WILLIAM J. (JIMMY) MCGUIRE

16060 Old Atlanta Road

Vivian, Louisiana 71082

or

705 South Spruce Street

Vivian, Louisiana 71082

 

CITIZENS BANK & TRUST COMPANY

OF VIVIAN, LOUISIANA, INC.,

through its agent for service of process,

Daniel M. Caldwell

120 W. Arkansas Avenue

Vivian, Louisiana 71082

 

REGIONS BANK,

through its agent for service of process,

Corporation Service Company

320 Somerulos Street

Baton Rouge, Louisiana 70802-6129

 

CAPITAL ONE, NATIONAL ASSOCIATION,

which may be served via the Long Arm Statute at

1680 Capital One Drive

Mclean, Virginia 22102

 

FIRST GUARANTY BANK,

through its agent for service of process,

Michael R. Sharp

400 East Thomas Street

Hammond, Louisiana 70401

 

AMERICAN BANK & TRUST COMPANY,

through its agent for service of process,

Stanley M. Dameron

1819 North Columbia Street

Covington, Louisiana 70433

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