898 F.2d 996 (5th Cir. 1990), 89-3011, McLemore v. Landry

Docket Nº:89-3011.
Citation:898 F.2d 996
Party Name:Dr. Henry McLEMORE II, et al., Plaintiffs, v. Paul J. LANDRY, et al., Defendants. SUN BELT FEDERAL BANK, Plaintiffs-Appellees, v. RIVER VILLA PARTNERSHIP, et al., Defendants-Appellants.
Case Date:April 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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898 F.2d 996 (5th Cir. 1990)

Dr. Henry McLEMORE II, et al., Plaintiffs,


Paul J. LANDRY, et al., Defendants.

SUN BELT FEDERAL BANK, Plaintiffs-Appellees,


RIVER VILLA PARTNERSHIP, et al., Defendants-Appellants.

No. 89-3011.

United States Court of Appeals, Fifth Circuit

April 6, 1990

Page 997

[Copyrighted Material Omitted]

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Thomas H. Benton, and Richmond C. Odom, Baton Rouge, La., for defendants-appellants.

James D. McMichael, Marie Breaux Stroud, Liskow & Lewis, New Orleans, La., for plaintiffs-appellees.

Shelby McKenzie, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for FSC Securities Corp. Richard A. Curry, Shannan S. Rieger, Rubin, Curry, Colvin & Joseph, Baton Rouge, La., for plaintiffs-appellees.

Richard A. Curry, Shannan S. Rieger, Rubin, Curry, Colvin & Joseph, Baton Rouge, La., for plaintiffs-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before CLARK, Chief Judge, and POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

River Villa Partnership appeals an adverse summary judgment recognizing the rights of the Federal Savings and Loan Insurance Corporation (FSLIC) under promissory notes and a collateral mortgage executed by Paul J. Landry as attorney-in-fact for the partnership. We affirm.


This appeal arises out of an action originally filed by Sun Belt Federal Bank, F.S.B. (Sun Belt) against River Villa and its several partners, jointly and solidarily, to recover on a $1,585,000 promissory note and collateral mortgage executed by Landry. River Villa has 15 partners: Interplan Development, Inc., a Louisiana corporation of which Landry is president, and Drs. Henry McLemore, Thomas Jenkins, Leon Lastrapes III, Gerald Murdock, Francis Elias, Robert Lyons, Charles Smith, Lawrence Tujague, William O'Neill, David Wallin, Patrick Breaux, William Harkrider, Lawrence Broussard, and Gerald Schiff.

The dispositive facts are relatively uncontroverted, although their legal effect is sharply disputed. Landry secured powers of attorney from all but three of River Villa's partners. 1 The powers authorized Landry to exchange properties owned by River Villa on the False River, near Baton Rouge, for properties owned by third persons in Gonzales, Louisiana. In connection with the exchange the powers authorized Landry to borrow $1,550,000 from Sun Belt "at such rates of interest and on such terms and conditions as he deems fit and proper in his sole discretion" and to secure the loan with a mortgage on the Gonzales properties. 2

On December 10, 1984, acting as agent and attorney-in-fact for River Villa and its partners, Landry executed instruments effecting the property exchange and a loan of $1,585,000 from Sun Belt to River Villa. The Sun Belt loan was secured by: (1) a demand collateral mortgage note for $1,900,000; (2) a collateral mortgage on the Gonzales properties; (3) a pledge agreement delivering to Sun Belt the collateral mortgage note as security for all of its loans to River Villa; and (4) an assignment to Sun Belt of the rentals from tenants of the Gonzales properties.

River Villa defaulted on the loan payments due May 1, 1985 and thereafter. Sun Belt accelerated the due date of the

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loan balance and filed suit against River Villa and its partners on the promissory note and collateral mortgage.

After an amended complaint and two third-party complaints not relevant to this appeal were filed, 3 Sun Belt was placed in receivership and FSLIC removed the case to federal court. Cross-motions for summary judgment were filed. The district court granted summary judgment for FSLIC, holding River Villa and its individual partners liable, in solido, on the promissory note and recognizing the collateral mortgage. 4 McLemore v. Landry, 687 F.Supp. 1038 (M.D.La.1988). 5 While post-judgment motions from both River Villa and the FSLIC were pending River Villa moved to file a compulsory counterclaim which the district court denied as untimely. Following the trial court's denial of both River Villa and FSLIC's motions to amend the judgment, and River Villa's motion for a stay of execution, River Villa and the "respective individual partners therein," moved the district court to "enter an order of appeal."


  1. Jurisdiction

    As a threshold consideration we must determine whether we have jurisdiction of this appeal and, if we do, over which parties. Although an administrative panel of this court previously denied a motion by FSLIC to dismiss this appeal for lack of jurisdiction, we are compelled to revisit the issue, E.E.O.C. v. Neches Butane Products Co., 704 F.2d 144 (5th Cir.1983), for ours is a court of limited jurisdiction. Thompson v. Betts, 754 F.2d 1243 (5th Cir.1985).

    The "notice of appeal" before us reads in its entirety:

    NOW INTO COURT, comes River Villa, A Partnership, and the respective individual partners therein, defendants in the above-captioned action entitled Sun Belt Federal Bank, F.S.B. v. River Villa Partnership, et al., and moves this Court to allow an appeal and enter an order of appeal in the said action.

    Thus drafted, this fails to comply with the requirements of Rule 3(c) of the Federal Rules of Appellate Procedure, which mandates that a notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken."

    As to the latter two requirements of Rule 3(c), we deem the instant notice of appeal sufficient, although inartfully drawn. River Villa's intent to appeal the underlying summary judgment and denial of its motion to file a compulsory counterclaim may be gleaned from its "timing" and the status of the case when the "notice" was filed, as subsequently buttressed by the statement of issues and briefs. See F.T.C. v. Hughes, 891 F.2d 589, 590 n. 1 (5th Cir.1990); Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). Further, River Villa's intent to appeal to this court is made manifest by the fact that this is the only court to which an appeal may be had.

    Despite reaffirming the rubric that courts of appeal should liberally construe Rule 3(c) in favor of appeals, the Supreme Court recently underscored the necessity of an unqualified designation of the party or parties taking the appeal. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the

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    Court held that the failure to name a party in a notice of appeal was not a mere technical variance but, rather, constituted a jurisdictional defect. The Court held that the designation "et al." did not suffice to satisfy this requirement. Applying this principle to the instant case we must conclude that the notice of appeal by "River Villa, A Partnership, and the respective individual partners therein," confers jurisdiction solely over the appeal of the partnership, the only named appellant, and leaves this court without jurisdiction as to the appeal of the several partners. 6

  2. River Villa's Defenses to Enforcement of the Note

    River Villa raises two defenses to FSLIC's efforts to enforce the $1,585,000 promissory note that Landry executed for the partnership. We consider each in light of the holding of the Supreme Court in D'Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). In D'Oench, the Supreme Court held that oral side agreements cannot defeat recovery by the Federal Deposit Insurance Corporation. Adopted to protect the FDIC "against misrepresentation as to the securities or other assets in the portfolios of the banks which [it] insures or to which it makes loans," 315 U.S. at 457, 62 S.Ct. at 679, the D'Oench doctrine has since been codified:

    No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.

    12 U.S.C. Sec. 1823(e). As a common law doctrine D'Oench has been extended to protect FSLIC as well as the FDIC. See Fed. Sav. & Loan Ins. Corp. v. Lafayette Invest. Properties, Inc., 855 F.2d 196 (5th Cir.1988); Fed. Sav. & Loan Ins. Corp. v. Murray, 853 F.2d 1251 (5th Cir.1988).

    1. Validity of the powers of attorney.

    We must first determine whether the statute and the D'Oench doctrine bar our consideration of the mandates. 7 We conclude that they pass muster for they specifically are referred to in the collateral mortgage, and Landry signed both notes in his representative capacity, thus satisfying D'Oench concerns. See Templin v. Weisgram, 867 F.2d 240 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 63, 107 L.Ed.2d 31 (1989). Accordingly, we address the merits of River Villa's challenge to the validity of the powers of attorney.

    River Villa vigorously asserts that it incurred no obligation to Sun Belt on the $1,585,000 promissory note, and its accompanying collateral...

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