Smitherman, Lunn, Chastain & Hill v. Killingsworth
| Decision Date | 09 May 1990 |
| Docket Number | No. 21478-CA,21478-CA |
| Citation | 561 So.2d 816 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | SMITHERMAN, LUNN, CHASTAIN & HILL, Plaintiff-Appellee, v. Mitchell J. KILLINGSWORTH, Defendant-Appellee, and Federal Deposit Insurance Corporation, Defendant-Appellant. 561 So.2d 816 |
Mills, Timmons & Flowers by George H. Mills, Jr., Shreveport, for defendant-appellant.
Smitherman, Lunn, Chastain & Hill by W. James Hill, III, Shreveport, for plaintiff-appellee.
Joey W. Hendrix, Shreveport, for defendant-appellee Mitchell Killingsworth.
Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
In this concursus brought to determine the ownership of $10,000 placed in escrow by Killingsworth as a damage deposit on a house that Killingsworth had occupied by agreement with a bank, the bank's successor in title, FDIC, appeals, not to contest the judgment that decreed that Killingsworth owned the escrow fund, but to seek a ruling on FDIC's cross-claim against Killingsworth for past due rent ($12,000) and attorney fees allegedly owed under a month-to-month lease that was signed after FDIC acquired the house.
While affirming the judgment appealed, we agree that the trial court should have ruled on the cross-claim. We remand with instructions. CCP Arts. 1031 and 1071. Smith v. White, 398 So.2d 178 (La.App. 3d Cir.1981).
Killingsworth occupied the house for six months without payment of rent after FDIC acquired it. FDIC's claim to the escrow fund was founded on the contention that Killingsworth had agreed with FDIC that the escrow fund would secure the $2,000 monthly rent he owed to FDIC under the written lease. The trial court rejected this contention. This portion of the judgment is not challenged in FDIC's appeal.
With its answer to the concursus petition, FDIC brought its cross-claim against Killingsworth for unpaid rent and attorney fees. The concursus action and the cross-claim were tried together, without objection. The trial court nevertheless reasoned that "it was not necessary for the validity of the lease to be resolved in order for the concursus to be adjudicated" and decreed in the judgment "that this Court makes no ruling on the merits [of] the cross-claim ... and that no issue of res judicata should flow from this judgment as to FDIC's claims for any unpaid rent which may be due by Killingsworth under any valid lease which may have existed between the parties."
FDIC did not dispute that Killingsworth left the property in good condition. FDIC witnesses admitted that Killingsworth's "agreement" that the escrow fund would secure the rent was not in writing.
Killingsworth admitted signing the written lease which served as the basis of FDIC's cross-claim, but testified that an FDIC employee told him the lease was not "binding" until he signed and delivered two letters instructing the escrow agent to transfer the escrow fund to FDIC and authorizing FDIC to use the fund for rental payments. Killingsworth had the letters prepared but neither signed nor delivered them because, he said, the $2,000 monthly rental in the written lease with FDIC was "too high."
FDIC's claim to the escrow fund and its cross-claim against Killingsworth arise out of his occupancy of the house and are factually related even though they are legally distinct demands.
Killingsworth waived the dilatory exception of improper cumulation of actions by answering the cross-claim without filing the exception. CCP Art. 926; Moorhead v. State, Department of Highways, 322 So.2d 330 (La.App. 2d Cir.1975). See and compare Austral Oil Company, Inc. v. Milliken & Farwell, Inc., 307 So.2d 377 (La.App. 1st Cir.1974), writ denied, and Amoco Production Co. v. Carruth, 457 So.2d 797 (La.App. 1st Cir.1984).
The trial court did not order separate trials of the actions, as it could have on its own motion under CCP Art. 465, but instead heard evidence from both parties on the lease agreement, from Killingsworth's expert on the fair rental value of the property, and from FDIC's attorney on the claim for attorney fees under the lease. The record is complete in this respect.
The court's finding that Killingsworth did not agree that the escrow fund could be used to pay rent resolves the concursus action but does not...
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