First Am. Bank & Trust v. Geaux Dev. Grp., LLC
| Decision Date | 07 January 2015 |
| Docket Number | NUMBER 2014 CA 0565 |
| Parties | FIRST AMERICAN BANK AND TRUST v. GEAUX DEVELOPMENT GROUP, LLC; GEORGE BONFANTI; BEN R. MILLER, JR.; MICHAEL A. GRACE, JR.; WALTER L. COMEAUX; AND KATHERINE K. FACKRELL |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
The Honorable Ralph Tureau, Judge Presiding
Alvin A. LeBlanc, Jr.
Mandeville, LA
Counsel for Plaintiff/Appellee,
First American Bank and Trust
Mark C. Landry
Metairie, LA
Barbara L. Irwin
Timothy E. Pujol
Matthew W. Pryor
Gonzales, LA
Counsel for Defendants/Appellants,
Geaux Development Group, LLC;
George Bonfanti; Ben R. Miller, Jr.;
Michael A. Grace, Jr.; Walter L.
Comeaux; and Katherine K. Fackrell
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
This matter is before us on appeal by defendants, George Bonfanti, Katherine K. Fackrell, and Geaux Development Group, LLC, from a judgment of the trial court in favor of plaintiff, First American Bank and Trust. For the reasons that follow, we affirm.
First American Bank and Trust ("the Bank") issued a loan to Commerce Centre, LLC, ("Commerce Centre") in the amount of $9,800,000.00, with an .interest rate of 7.75% and an assigned loan number of 4655111, as evidenced by a promissory note executed on September 22, 2006 ("the 2006 loan"). This note was executed by George Bonfanti, as the Managing Member of Commerce Centre, and the loan was secured by a "Multiple Indebtedness Mortgage" executed by Commerce Centre on immovable property it owned in Ascension Parish.1 The loan was also secured by the guarantees of ten certain individuals and companies, including the six defendants herein, who executed continuing commercial guarantees for "FULL AND PUNCTUAL PAYMENT" of Commerce Centre's indebtedness to the Bank. A commitment letter of August 7, 2006, further provided that the guarantors would have limited guarantees of 125% of their individual ownership obligation.2
Thereafter, the 2006 loan was renegotiated to provide for a lower interest rate and to provide additional financing. A second promissory note was executed on December 17, 2007, in the amount of $8,517,500.00, whichincluded the outstanding balance owed on the 2006 loan,3 plus additional sums that were being advanced, with an interest rate of 7.25% and a different assigned loan number 4688034 ("the 2007 loan"). The promissory note for the 2007 loan was likewise executed by George Bonfanti as the Managing Member of Commerce Centre, and set forth that the loan was payable in full on demand by the lender, and that if no demand was made, payment of the loan in full with interest was due on December 20, 2008. The 2007 loan was secured by the existing Multiple Indebtedness Mortgage, and an acknowledgement of same was executed by Bonfanti as the Managing Member of Commerce Centre. The second loan was further secured by the guarantees of six of the original guarantors, namely, Geaux Development Group, LLC (hereafter "Geaux"); George Bonfanti; Ben R. Miller, Jr.; Michael A. Grace, Jr.; Walter L. Comeaux; and Katherine K. Fackrell, who executed new commercial guarantees, each limited to a specified maximum amount.
The 2007 loan went into default, and on. September 20, 2010, the Bank filed a "Petition for Money Owed" against the six guarantors of the 2007 loan seeking a deficiency judgment for the unpaid balance due of $7,181,451.23, plus accrued interest in the amount of $ 1,196.91. Geaux, Bonfanti, and Fackrell answered the petition, whereas the Bank's claims against Miller, Comeaux, and Grace, were resolved and dismissed by a joint motion and order for partial dismissal with prejudice.
The Bank also instituted an executory proceeding against Commerce Centre, which resulted in the seizure and sale of the mortgaged immovable property, with the benefit of appraisal, at a judicial auction. Thus, the Bank filed first and second amended petitions in these proceedings, amending itsclaims and demands against the remaining defendants to reflect the amount realized from the sale of the property and the amounts paid by the settling defendant guarantors.
In response to the "Petition for Money Owed," the three remaining defendant guarantors, Geaux, Bonfanti, and Fackrell, filed a compulsory reconventional demand against the Bank, averring that as a result of the Bank's renegotiation of the loan, the Bank had increased their "potential virile share liabilities" to their direct detriment, without their consent and through fraud, as false representations and/or omissions were made by the Bank to the defendants/plaintiffs-in-reconvention. Specifically, as plaintiffs-in-reconvention, the defendant guarantors contended that at no time were they made aware that Geaux Corporation, Miller, BBM Properties, L.L.C., and Dutton Road Building, L.L.C., who were guarantors of the 2006 loan, were not executing guarantees on the 2007 loan, which therefore increased the remaining guarantors' exposure and potential liability. As plaintiffs-in-reconvention, they further alleged that this information was intentionally withheld by the Bank, and that had they known that four of the previous guarantors from the 2006 loan were going to be released, they never would have executed the guarantees securing the 2007 loan individually or on behalf of Geaux. The defendants/plaintiffs-in-reconvention further contended that they detrimentally relied on representations of the Bank; that the actions of the Bank amounted to fraud; and that pursuant to LSA-C.C. art. 1958,4 the Bank was liable to them for attorney's fees. They also contended that the Bank's activities constituted deceptive practices in violation of the "Federal Trade Commission Act and now the Fair Debt Collection Practices Act," and that the Bank's failure "to mitigateits damages" renders it liable to the defendant guarantors/plaintiffs-in-reconvention for damages pursuant to LSA-C.C. art. 1997.5
Thereafter, the Bank filed a motion for summary judgment on its main demand for a deficiency judgment against the three remaining guarantors, contending that considering the pleadings, exhibits, and entire record of the completed foreclosure proceedings, no genuine issues of material fact remained and that it was entitled to judgment in its favor as a matter of law. The Bank also filed peremptory exceptions raising objections of no cause of action and prescription as well as a motion for summary judgment seeking dismissal of the defendants' reconventional demand.
The defendants/plaintiffs-in-reconvention opposed the motion for summary judgment on the Bank's main demand, contending that the 2007 loan was confected by fraud and should be rescinded. In support, the defendants/plaintiffs-in-reconvention contended that the deposition testimony of Rodney Logarbo, the Bank's Vice President, was at odds with the Bank's discovery responses, and that this discrepancy alone creates issues of fact regarding the existence of fraud, which therefore precludes summary judgment.
Following a hearing, the trial court issued a "Judgment with Written Reasons" wherein it granted the Bank's motion for summary judgment on the main demand.
The defendants/plaintiffs-in-reconvention then filed a motion for new trial, challenging the summary judgment rendered in favor of the Bank on the main demand on the basis that the judgment was entered prematurely without the opportunity for adequate discovery. In support, the defendants/plaintiffs-in-reconvention attached emails documenting their request for a corporatedeposition of a Bank representative pursuant to LSA-C.C.P. art. 1442 and an affidavit from Bonfanti wherein he attested that had he known four of the previous guarantors from the 2006 loan were not acting as guarantors for the 2007 loan, he would not have agreed to renegotiate the loan. However, the defendants/plaintiffs-in-reconvention were ultimately able to take the corporate deposition of Bank representative Ronald Falgoust on November 21, 2013.
Following a hearing on December 2, 2013, the trial court maintained the Bank's exceptions raising objections of prescription and no cause of action, granted the Bank's motion for summary judgment as to the reconventional demand, and denied the motion for new trial regarding the summary judgment previously granted on the Bank's main demand.
A "Final Judgment" was signed by the trial court on December 10, 2013, denying the defendants/plaintiffs-in-reconventions' motion for new trial of the summary judgment on the main demand and granting judgment in favor of the Bank and against the defendants/plaintiffs-in-reconvention for the principal sum of $7,181,451.23, with accrued interest in the amount of $1,196.91, and default interest on the outstanding amount of the loan at 21% per annum, subject to various credits. These credits were for $9,366.67 received on July 22, 2010, $1,000,000.00 received on December 16, 2010, and $3,773,666.67 received on February 8, 2012. The judgment also assessed the liability of each guarantor in accordance with their guarantees.6 The judgment further maintained the peremptory exceptions of prescription and no cause of action as to the claims asserted in the reconventional demand and granted summary judgment dismissing the reconventional demand, with prejudice, at the defendants/plaintiffs-in-reconventions' cost.
The defendants/plaintiffs-in-reconvention now appeal the final judgment of the trial court, contending that the trial court erred in granting summary judgment on the main demand, where the defendants/plaintiffs-in-reconvention showed that facts remained to be determined regarding defenses raised by the defendants/plaintiffs-in-reconvention, and in maintaining the Bank's peremptory exceptions and granting summary judgment dismissing their reconventional demand.
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