First Guaranty Bank v. Durham, 12266

CourtCourt of Appeal of Louisiana (US)
Citation409 So.2d 380
Docket NumberNo. 12266,12266
PartiesFIRST GUARANTY BANK v. Max H. DURHAM, Jr., et al.
Decision Date12 January 1982

Page 380

409 So.2d 380
FIRST GUARANTY BANK
v.
Max H. DURHAM, Jr., et al.
No. 12266.
Court of Appeal of Louisiana, Fourth Circuit.
Jan. 12, 1982.

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. 2

On 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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11 cases
  • Williams v. DiVittoria, Civ. A. No. 90-491.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 5 Noviembre 1991
    ...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.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 21 Marzo 1991
    ......First Guar. Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir. ......
  • Dart v. Ehret, 84-CA-480
    • United States
    • Court of Appeal of Louisiana (US)
    • 11 Marzo 1985
    ...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......
  • Barnhill v. Consolidated Medical, Disability & Life Trust, 89-488
    • United States
    • Court of Appeal of Louisiana (US)
    • 7 Noviembre 1990
    ...juris and a second suit is not barred where there is any doubt as to the applicability of Article 2286. First Guaranty Bank v. Durham, 409 So.2d 380 (La.App. 4th The Fourth Circuit, in a similar case, Ellison v. Michelli, 513 So.2d 336, at pg. 339 (La.App. 4th Cir.1987), concluded: "Comprom......
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