184 So. 3d 274
La. Ct. App.2016Background
- Whitney Bank (successor to Hancock Bank) filed executory process (Feb 8, 2011) against borrower 3429 H, LLC on a defaulted promissory note; Schmidt executed a commercial guaranty.
- Sheriff seized and sold the mortgaged property at public auction (Jan 23, 2013); two pre-sale appraisals valued the property significantly above the sale price.
- Whitney sought a deficiency judgment after sale; Schmidt answered, raised defenses, and filed a reconventional demand alleging an oral forbearance agreement with bank officer Ted Pender and misconduct by Whitney’s lawyer Clay LeGros.
- Whitney, Pender, and LeGros filed exceptions of no cause of action (and Pender an exception of insufficiency of service); the trial court granted the exceptions on Sept. 8, 2014, dismissing Schmidt’s reconventional claims against all three.
- Whitney separately moved for summary judgment on the deficiency claim; the trial court granted summary judgment on Oct. 21, 2014. Schmidt’s appeals were filed but portions were untimely; appellate court finds it lacks jurisdiction over Schmidt’s appeal from the summary judgment and Whitney-related dismissal but affirms dismissal as to Pender and LeGros.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schmidt’s reconventional claims based on an oral forbearance/credit agreement are actionable | Schmidt: oral agreement with Pender prevented foreclosure if interest paid; alleged $56,000 in interest payments | Whitney/Pender/LeGros: Louisiana Credit Agreement Statute requires written credit agreements; oral agreement unenforceable | Dismissed: oral credit/forbearance agreement barred by La. R.S. 6:1122; no cause of action |
| Whether Schmidt stated a fiduciary-duty claim against bank officer or bank attorney | Schmidt: Pender/LeGros owed fiduciary duties and breached them | Defendants: fiduciary duties require a written agency/trust agreement under La. R.S. 6:1124 | Dismissed: no written agency/trust agreement alleged, so no fiduciary-duty claim |
| Whether trial court erred in not allowing amendment to cure defects in reconventional demand | Schmidt: should have been permitted to amend under La. C.C.P. art. 934 | Defendants: grounds cannot be cured by amendment (statutory bar) | Affirmed: amendment would be futile; trial court did not abuse discretion |
| Whether appellate court has jurisdiction to review summary judgment and Whitney dismissal | Schmidt: appealed both rulings | Whitney: appeals untimely or interlocutory; procedural rules govern timeliness | Dismissed in part: appeal from summary judgment untimely; Whitney-related interlocutory ruling should have been pursued by supervisory writ and is not reviewable here; dismissal as to Pender and LeGros is appealable and affirmed |
Key Cases Cited
- Martin v. Freiberger, 822 So.2d 810 (La. App. 5 Cir.) (timeliness of appeal is jurisdictional)
- Show-Me Const., LLC v. Wellington Specialty Ins. Co., 83 So.3d 1156 (La. App. 5 Cir.) (function of exception of no cause of action)
- Hall v. Zen-Noh Grain Corp., 787 So.2d 280 (La.) (pleading standards for exceptions of no cause of action)
- City of New Orleans v. Board of Commissioners of the Orleans Levee Dist., 640 So.2d 237 (La.) (de novo review for legal issues)
- Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.) (interpretation of petitions in exception practice)
- Brown v. Loraso, 77 So.3d 455 (La. App. 5 Cir.) (interlocutory ruling not final)
- Lalla v. Calamar, N.V., 5 So.3d 927 (La. App. 4 Cir.) (supervisory writ as remedy for interlocutory rulings)
- Madere v. St. John the Baptist Parish, 900 So.2d 73 (La. App. 5 Cir.) (untimely appeal dismissal)
- Falkins v. Jefferson Parish Sch. Bd., 695 So.2d 1005 (La. App. 5 Cir.) (untimely new-trial motion does not interrupt appeal delays)
- Kent v. Epherson, 864 So.2d 708 (La. App. 5 Cir.) (discretion on allowing amendment after exception)
- Sporl v. Sporl, 788 So.2d 682 (La. App. 5 Cir.) (scope of review on unrestricted appeal)
- Jesco Constr. Corp. v. Nations-Bank Corp., 830 So.2d 989 (La.) (Louisiana Credit Agreement Statute precludes actions on oral credit agreements)
- Knight v. Magee, 835 So.2d 636 (La. App. 1 Cir.) (forbearance is a "credit agreement" under statute)