Carter v. BRMAP

Decision Date22 November 1991
Docket NumberNo. 90,90
Citation591 So.2d 1184
PartiesCharles Robert CARTER v. BRMAP, et al. CA 1153. 591 So.2d 1184
CourtCourt of Appeal of Louisiana — District of US

Roy Maughan, Jr., Baton Rouge, for plaintiff-appellant Charles Robert Carter.

Robert Leake, in pro. per.

Lawrence Anderson, Baton Rouge, for Winston and Patricia Riddick.

Michael Patterson, Baton Rouge, for defendant-appellee Janis Long, As administratrix of Succession of Gillis Long.

Ralph Brewer, Baton Rouge, for defendant-appellee Abram P. Miller, Paul L. Miller, Marilyn Erwin and Thomas Morgan, III.

Before COVINGTON, C.J., and SHORTESS, LANIER, CRAIN and LeBLANC, JJ.

LANIER, Judge.

This action is a suit in contract on a promissory note secured by a mortgage on property owned by BRMAP, a partnership in commendam. Charles Robert Carter (plaintiff) is the holder of the note and brought suit against BRMAP and various individuals alleged to be BRMAP's general partners (defendants). 1 Robert Leake, Janis Catherine Long as Administrator of the Estate of Gillis Long, Abram P. Miller, Paul L. Miller, Marilyn H. Erwin, and Thomas O. Morgan, III (the limited partners) filed a motion for summary judgment asserting they were limited partners (and not general partners) and they should be dismissed from the suit. The trial court granted the summary judgment. Plaintiff took this devolutive appeal.

GENERAL FACTS

On December 30, 1983, BRMAP was formed. Originally, Gerald and Ruth Weaver (Weavers), Riddick Investments, LTD., Winston Riddick, and Patricia Riddick served as its general partners. Marilyn H. Erwin, Robert S. Leake, Abram P. Miller, Paul Miller, Thomas O. Morgan, III and Gillis W. Long, along with others not relevant to this case, chose to invest in BRMAP as limited partners. On March 1, 1984, the partnership acquired the property that forms the basis of this suit in a "Sale With Assumption of Mortgage" and agreed to pay the balance due on a certain promissory note executed by the seller of the property in favor of plaintiff. On October 1, 1984, the Weavers transferred and conveyed all of their partnership interest to Erwin, Leake, A. Miller, P. Miller, Morgan, Long, W. Riddick and Riddick Investments, Ltd. The October 1, 1984 sale of partnership interest provided the sale was "subject to the liabilities of said partnership, which liabilities the same transferee assume, and insofar as the Seller is concerned, the Transferees are hereby bound and obligated to hold Seller harmless against any of said liabilities." Subsequently, BRMAP defaulted on the note and plaintiff filed this suit.

PROPRIETY OF SUMMARY JUDGMENT

Plaintiff asserts four assignments of error. First, the trial court erred in not finding the purchasers of the general partners' partnership interest assumed the status of a general partner. Second, the trial court erred in dismissing the purchasers of a general partners' interest when the purchasers assumed the general partners' existing indebtedness, which remains unpaid. Third, the trial court erred in not finding the language of the assumption agreement between the defendants/appellees and the Weavers a "stipulation pour autrui" in favor of appellant. Finally, the court erred by dismissing the defendants/appellees when they contracted to hold the Weavers harmless from the payment of partnership debts. The plaintiff does not assign as error that there are disputed issues of material fact which preclude the granting of a summary judgment.

Defendants contend the trial court correctly granted the motion for summary judgment. First, defendants assert there is no such thing as a discrete general partnership interest of which ownership carries liability to third persons without additional acts, such as active management of the partnership; liability is based on the role the partner plays in the partnership and not the interest he has acquired. Second, defendants claim the uncontroverted evidence proves the partners intended only to assume the outstanding credit portion of the Weavers' contribution to the partnership and the limited partners did not intend to assume all of the Weavers' liabilities. Third, defendants contend the evidence submitted by them proves that the agreement is not a stipulation pour autrui because the parties did not intend to grant an advantage to a third person. The limited partners only intended to assume the unpaid credit portion of the Weavers' contribution to the partnership. Finally, the defendants suggest they intended to hold the Weavers harmless for only the unpaid credit portion of their partnership contribution and not for any other potential liability.

General Law Applicable to Motions for Summary Judgment

The law on summary judgments applicable to this case is stated in Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381, 383-385 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991) as follows:

LSA-C.C.P. art. 966 provides, in pertinent part:

A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed....

B. ... The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.

LSA-C.C.P. art. 967 provides, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein....

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

. . . . .

It is well settled that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.... The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted.... Under LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials in his pleadings when a motion for summary judgment is made and supported by affidavits....

On motion for summary judgment, it must first be determined that the supporting documents presented by the moving party are sufficient to resolve all material issues of fact; if they are not sufficient, summary judgment should be denied. It is only if they are sufficient that the burden shifts to the opposing party to present evidence that a material fact is still at issue; only at this point may the adverse party no longer rest on the allegations contained in his or her pleadings....

In certain instances, the failure of an adverse party to file counter-affidavits does not automatically entitle the moving party to summary judgment.... However, if the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, it is incumbent upon the adverse party to set forth specific facts showing that there is a genuine issue for trial....

Summary judgments are not favored, and any reasonable doubt should be resolved against the mover.... In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. (Citations omitted; emphasis added)

Law Controlling the Interpretation of Contracts

This case involves the proper interpretation of various contracts. Contracts have the effect of law on the parties thereto and must be performed in good faith. La.C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. La.C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the intent of the parties. La.C.C. art. 2046. Conversely, when the terms of a contract are susceptible to more than one interpretation, it is ambiguous and parol evidence may be used to show the true intent of the parties and various rules of interpretation become applicable. La.C.C. arts. 2045 et seq.; Dixie Campers, Inc. v. Vesely Company 398 So.2d 1087 (La.1981). Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La.C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders its effective and not with one that renders it ineffective. La.C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La.C.C. art. 2050. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La.C.C. art. 2053. In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular...

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