Clearview Palms Partnership v. Hibernia National Bank

573 So. 2d 1206, 1991 La. App. LEXIS 38, 1991 WL 3629
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1991
DocketNo. 90-CA-0256
StatusPublished
Cited by2 cases

This text of 573 So. 2d 1206 (Clearview Palms Partnership v. Hibernia National Bank) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clearview Palms Partnership v. Hibernia National Bank, 573 So. 2d 1206, 1991 La. App. LEXIS 38, 1991 WL 3629 (La. Ct. App. 1991).

Opinion

CIACCIO, Judge.

Plaintiffs appeal a trial court judgment dismissing their suit on defendant’s motion for summary judgment and awarding defendant the relief sought in its reconven-tional demand. We affirm.

Plaintiffs, Clearview Palms Partnership, Commercial Ventures, Ltd., Gardes Development Group, Ltd., Arthur A. Gardes, Jr., Stanton L. Middleton, Jr. and Stanton L. Middleton, III (hereinafter Clearview Palms) sought financing from defendant, Hibernia National Bank, for the land acquisition, development and construction of a shopping center in Jefferson Parish to be called Clearview Palms Shopping Center. After several months of negotiations, on May 5, 1988, Hibernia approved Clearview Palms’ loan application, and issued a commitment letter whereby Hibernia bound itself to loan Clearview Palms $5,300,000.00 for a period of three years at a fixed interest rate of 10V8%, predicated upon the borrower complying with all the terms and conditions of the commitment letter. The commitment agreement was accepted, as written, on behalf of Clearview Palms Partnership by Stanton Middleton, III and Arthur Gardes on May 9, 1988.

The twelve page commitment letter and attached addendum sets out, in great detail, numerous terms and conditions that the borrower had to meet before the loan would be funded, including the requirement that Clearview Palms had to provide a guaranty of the lease obligations of the proposed shopping center’s primary tenant, Pap’s Food Center. Specifically, the letter required Super Valu, the wholesale company that supplied groceries to Pap’s, to guarantee performance of the first two years of Pap’s lease and required Picadilly Cafeteria, another proposed major tenant at the shopping center, to guarantee an additional twenty-seven months. The exact wording read:

SELECTED COVENANTS IN LOAN AGREEMENT:
10 — Receipt, review and acceptance by HNB and its legal counsel of the following documents:
Agreement by Super Valu for 2 year floating guarantee on the Paps lease during years 1-10 with commencement defined as date of occupancy by Pap’s Food Center.
Agreement by Picadilly Cafeteria, Inc. of 2 year, 3 month guarantee on the Paps lease during the designated months 25-51, month one (1) being defined as date of occupancy by Pap’s Food Center therefore Pieadilly’s guaranty shall commence the month following the expiration of the Super Valu Guaranty Agreement but in no event shall Picadilly’s Guaranty extend beyond a term of 27 months.

The Hibernia letter of commitment also required Clearview Palms to pay a commitment fee:

COMMITMENT FEE: One (1%) percent nonrefundable fee in the amount of $53,-330.00, due upon acceptance of this commitment. Full amount can be drawn back at closing.

In connection with the payment of fees and expenses the letter further provided:

[1208]*1208 TIME OF ESSENCE
Time is of the essence hereof with respect to the date, terms and conditions set forth and in the event that any respective term or condition is not fully complied with by the designated date, including without limitation, the submission of the Pre-Closing Documents designated on Addendum A, and any other document required by Lender or Lender’s Counsel, the Lender may declare this revised commitment null and void, and shall be entitled to retain the commitment fee.

At the time of acceptance of the commitment letter, Clearview Palms only paid Hibernia $10,000.00, and Hibernia accepted payment of the remainder of the fee in the form of a promissory note for $43,000.00, payable on October 3, 1988 with Arthur Gardes, Stanton Middleton, Jr. and Stanton Middleton, III personally endorsing the promissory note.

By letter dated June 3, 1988, Middleton informed Hibernia that Clearview Palms could not obtain the Super Valu guaranty. Hibernia responded by reiterating that the $43,330.00 promissory note must be paid.

On October 3, 1988 when the promissory note became due, Clearview Palms paid Hibernia $15,000.00 on the note and executed another promissory note for the remaining $28,330.00 due on December 28, 1988. Gardes, Middleton, Jr. and Middleton, III again personally endorsed the note.

Shortly before the $28,330.00 promissory note matured, Clearview Palms filed suit against Hibernia, seeking a declaratory judgment declaring that Hibernia was not entitled to the commitment fee charged for issuing the letter and that the $28,330.00 note issued in payment of the fee was null, void and unenforceable. Clearview Palms also sought the return of the $25,000.00 previously paid to Hibernia towards the commitment fee. Hibernia answered the suit and filed a reconventional demand seeking enforcement of the $28,330.00 promissory note.

Clearview Palms and Hibernia both filed motions for summary judgment. Attached to the parties’ motions for summary judgment were an affidavit of facts by Stanton L. Middleton, III, letters of correspondence between the parties, the loan agreement between the parties, an affidavit by Maureen Dunne, the Vice-President of Hibernia’s Commercial Real Estate Department, the commitment letter and a copy of the $28,330.00 promissory note. The trial court denied Clearview Palms’ motion. It granted Hibernia’s motion dismissing Clearview Palms’ suit and rendered judgment in favor of Hibernia declaring the promissory note due December 28, 1990 enforceable.

The sole issue before us is whether Clearview Palms is obligated to pay Hibernia the balance of the commitment fee required by the May 5, 1988 commitment letter although the underlying obligation, the $5,330,000.00 loan, was never consummated.

Clearview Palms argues on appeal, citing LSA-C.C. art. 1767, that the commitment letter was clearly subject to a suspensive condition, the Super Valu lease guaranty. Plaintiffs contend because the lease guaranty was not obtained, through no fault of their own, the commitment letter became null, void and unenforceable. They claim the parties then reverted back to their respective positions before they signed the commitment letter, i.e., Hibernia never had an obligation to make the loan and Clear-view Palms never had an obligation to pay a commitment fee. Plaintiffs further argue that the clause in the commitment letter setting forth when the commitment fee was due meant that it would have been due only in the event they obtained the Super Valu guaranty.

LSA-C.C. art. 1767 provides in part:

A conditional obligation is one dependent on an uncertain event.
If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.

Plaintiffs are correct in their assertion that Hibernia’s obligation to loan Clearview Palms $5,330,000.00 was a conditional obligation. The letter of commitment clearly sets forth those conditions. However, the [1209]*1209May 5, 1988 letter of commitment is itself a separate.and distinct contract apart from the actual loan agreement.

The commitment letter, upon acceptance, became a binding contract between Hibernia and Clearview Palms. The cause of this contract was the legally binding promise of Hibernia to fund the $5,300,000.00 loan to Clearview Palms if called upon to do so.

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573 So. 2d 1206, 1991 La. App. LEXIS 38, 1991 WL 3629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clearview-palms-partnership-v-hibernia-national-bank-lactapp-1991.