First Guaranty Bank v. Durham, No. 12266
| Court | Court of Appeal of Louisiana (US) |
| Writing for the Court | GULOTTA |
| Citation | 409 So.2d 380 |
| Parties | FIRST GUARANTY BANK v. Max H. DURHAM, Jr., et al. |
| Docket Number | No. 12266 |
| Decision Date | 12 January 1982 |
Page 380
v.
Max H. DURHAM, Jr., et al.
Page 381
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., New Orleans, for defendants-appellees.
Pittman & Matheny, Tom H. Matheny, Christoper Moody, Alton B. Lewis, Hammond, for plaintiff-appellant.
Before REDMANN, GULOTTA and BARRY, JJ.
GULOTTA, Judge.
First Guaranty Bank (the Bank) appeals from the dismissal of its suit against Max H. Durham, Jr. (Durham) and Durham & Lazard (Partnership) for the balance due on a promissory note. In the judgment of dismissal, the trial court maintained Durham's exception of res judicata and further granted defendants' motion for summary judgment. We affirm.
Loans had been made by the Partnership from the Bank before 1970. On November 3, 1971, a promissory note was executed in favor of the Bank in the amount of $17,000.00 and signed "Sidney H. Lazard by Guy W. Smith under P/A". 1 According to the Bank, the note was signed as a partnership obligation given in payment for a previously existing partnership debt. Durham and the Partnership, on the other hand, considered the note as Lazard's personal obligation given in payment for a previously existing partnership debt that he had assumed.
In May, 1972, Durham executed in favor of the Bank a $20,000.00 collateral mortgage note and mortgage on real property owned by him. Again, the parties differed as to the purpose of this device. Durham contended that the collateral mortgage was issued to secure future advances on his personal line of credit with the Bank, whereas the Bank viewed the mortgage as security for payment of the $17,000.00 note.
In November, 1972, Durham executed a note in favor of the Bank for $3,500.00 secured by the collateral mortgage. He subsequently repaid this loan, and thereafter filed suit in Tangipahoa Parish to erase the $20,000.00 collateral mortgage. The Bank reconvened praying for recognition of the mortgage and for judgment in the amount of $12,103.00, the balance owed on the $17,000.00 note. The trial court awarded the Bank a judgment against Durham for the balance due on the note; however, the First Circuit Court of Appeal reversed. The Bank's reconventional demand seeking
Page 382
recognition of the mortgage and the balance due on the note was dismissed. 2On July 12, 1976, the Bank filed the instant suit against Durham individually and against the Partnership for the $12,103.00 balance remaining on the $17,000.00 note. In maintaining the exception of res judicata, the trial judge determined that the Bank's reconventional demand in the first-filed suit in Tangipahoa Parish was the same as its demand in the instant suit. In granting the motion for summary judgment filed by the Partnership, the judge further observed that there was no indication in the note that it was executed on behalf of the Partnership, or that Guy Smith, who signed for Lazard, had acted as a mandatary for the Partnership. The trial...
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Williams v. DiVittoria, Civ. A. No. 90-491.
...will not be barred if there is any doubt as to the doctrine's applicability. See Vicknair, supra at 908; First Guaranty Bank v. Durham, 409 So.2d 380, 382 (La.App. 4 Cir. 1982). Clearly, the parties to this civil action, plaintiff and the deputy, and the parties to the criminal preliminary ......
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Williams v. Divittoria, Civ. A. No. 90-0491.
...is stricti juris, and a second suit will not be barred where there is any doubt as to its applicability. First Guar. Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir. In Watts, the Fifth Circuit Court of Appeals considered whether to give res judicata effect to a plaintiff's § 1983 claim, whi......
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Dart v. Ehret, No. 84-CA-480
...hold that none of the variations of the common law doctrines of res judicata apply in Louisiana. Also cf. First Guaranty Bank v. Durham, 409 So.2d 380 (4th Cir.1982), which held that res judicata is stricti juris and a second suit is not barred where there is any doubt about the application......
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Ellison v. Michelli, No. CA-6101
...the same quality. The absence of any one of the above elements is fatal to an exception of res judicata. First Guaranty Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir.1982). While the doctrine of res judicata is normally based on a conclusive legal presumption of "the thing adjudged" betwee......
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Williams v. DiVittoria, Civ. A. No. 90-491.
...will not be barred if there is any doubt as to the doctrine's applicability. See Vicknair, supra at 908; First Guaranty Bank v. Durham, 409 So.2d 380, 382 (La.App. 4 Cir. 1982). Clearly, the parties to this civil action, plaintiff and the deputy, and the parties to the criminal preliminary ......
-
Williams v. Divittoria, Civ. A. No. 90-0491.
...is stricti juris, and a second suit will not be barred where there is any doubt as to its applicability. First Guar. Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir. In Watts, the Fifth Circuit Court of Appeals considered whether to give res judicata effect to a plaintiff's § 1983 claim, whi......
-
Dart v. Ehret, No. 84-CA-480
...hold that none of the variations of the common law doctrines of res judicata apply in Louisiana. Also cf. First Guaranty Bank v. Durham, 409 So.2d 380 (4th Cir.1982), which held that res judicata is stricti juris and a second suit is not barred where there is any doubt about the application......
-
Ellison v. Michelli, No. CA-6101
...the same quality. The absence of any one of the above elements is fatal to an exception of res judicata. First Guaranty Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir.1982). While the doctrine of res judicata is normally based on a conclusive legal presumption of "the thing adjudged" betwee......