Derouen v. Malahmeh

61 So. 3d 693, 10 La.App. 3 Cir. 1002, 2011 La. App. LEXIS 152, 2011 WL 408876
CourtLouisiana Court of Appeal
DecidedFebruary 9, 2011
DocketNo. 10-1002
StatusPublished
Cited by1 cases

This text of 61 So. 3d 693 (Derouen v. Malahmeh) 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
Derouen v. Malahmeh, 61 So. 3d 693, 10 La.App. 3 Cir. 1002, 2011 La. App. LEXIS 152, 2011 WL 408876 (La. Ct. App. 2011).

Opinion

SAUNDERS, Judge.

|, This is a case of a vendor/mortgagee filing suit against a mortgagor for the amount due under a promissory note. The mortgagor responded by alleging that the terms of the contract between the parties had been altered due to the customs of the business dealings so as to waive the mortgagee’s right to late charges, that the mortgagee failed to timely pay to him the proceeds from an insurance claim, and that the mortgagee caused him mental damages in its collection practices.

The trial court found that the mortgagee was entitled to judgment to bring the promissory note up to date, inclusive of late charges, and dismissed the mortgagor’s claim against the mortgagee for mental damages. The mortgagor appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

Adel J. Malahmeh and his wife, Asma M. A1 Daoud Malahmeh (collectively Ma-lahmeh), purchased immovable property from the Isadore J. Carret and Bonnie Jean Jones Carret Trust (the trust). Bonnie J. Derouen (Derouen) is the trustee of the trust. However, most of the actual dealings between Malahmeh and the trust were conducted with the other member of [695]*695the trust, Isadore J. “Brother” Carret (Carret).

In the act of sale, the trust retained a mortgage and vendor’s privilege on the' property sold. The trust financed the transaction by allowing Malahmeh to pay for the property by making promissory notes. One of the notes, in the amount of $225,000.00, was payable over a seven-year period with a balloon payment due on the final day of the note. Other terms in the act of sale obligated Malahmeh to keep the property insured and to pay a late charge of five percent (5%) of the amount of any payment not received within ten days of the due date. After a few months, the parties agreed to change the terms of the agreement modifying the amount of the 12payment and providing that payments were due on the fifteenth of each month.

Malahmeh habitually made untimely payments on the note. There is conflicting testimony in the record of whether the trust informed Malahmeh that the lateness of the payments was unacceptable and whether the trust warned Malahmeh that late charges would apply to the late payments. Additionally, Malahmeh failed to obtain insurance coverage on the property. Thereafter, the trust purchased a policy of insurance covering the property and, according to the members of the trust, intended to add the premiums paid by the trust to the end of the note.

During the term of the note, the property sustained damage via hurricane. Proceeds from an insurance claim filed were kept by the trust in a non-interest bearing account. Malahmeh repaired some a minimal amount of damage done to the property, for which he was reimbursed. However, the net insurance claim proceeds were still in excess of $11,000.00.

On December 5, 2008, the trust filed suit against Malahmeh for collection on the promissory note. Malahmeh responded by filing a reconventional demand for mental damages against the trust for Derouen’s, as trustee, alleged harassing, demeaning, and belittling telephone eall(s) she made in trying to collect on the note.

On October 19, 2009, a trial on the merits was held. A judgment was rendered by the trial court on November 2, 2009, that awarded the trust one hundred three thousand three hundred sixty-three dollars and forty cents ($103,363.40), together with interest thereon at the rate of five percent (5%) per annum from October 19, 2009, until paid. Further, the trust was awarded seven thousand, eleven dollars and fifty cents ($7,011.50) in attorney’s fees. Ma-lahmeh was assessed costs of the proceedings, and his reconventional demand was dismissed. Malahmeh appealed, praising the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court committed manifest error, in failing to determine that the balance of the promissory note was the amount indicated on the amortization schedules kept by Carret and in adding late charges to the calculation of the judgment, even though obligee of the promissory note had not charged Malahmeh the late charges.

2. The trial court committed manifest error in failing to reduce the outstanding balance due on the promissory note by the amount of the insurance proceeds at the time the proceeds were received by the trust.

3. The trial court committed manifest error in dismissing Malahmeh’s claim for damages against the trust.

ASSIGNMENT OF ERROR NUMBER ONE:

Malahmeh asserts in his first assignment of error that the trial court committed manifest error in failing to determine that the balance of the promissory [696]*696note was the amount indicated on the amortization schedules kept by Carret (Defendant’s Exhibit 2) and in adding late charges to the calculation of the judgment, even though obligee of the promissory note, the trust, had not charged Malahmeh late charges when he made late payments. This assignment contains two assertions: that the trial court should have used Defendant’s Exhibit 2 rather than Plaintiffs Exhibit 12; and that the trial court should not have added the late charges in its judgment awarded to the trust. We disagree with both assertions.

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two pennissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Gradney v. La. Commercial Laundry, 09-1465, pp. 2-3 (La.App. 3 Cm. 5/12/10), 38 So.3d 1115, 1118 (citations omitted) (internal quotation marks omitted).

The trial court was presented with two documents that arguably could indicate the amount Malahmeh owed the trust on the promissory note, Plaintiffs Exhibit 12 and Defendant’s Exhibit 2. Malahmeh first argues that the trial court was in error in failing to use Defendant’s Exhibit 2 to calculate the balance he owed on the promissory note. Carret testified that he created Defendant’s Exhibit 2. He testified regarding the document as follows:

Q I’m going to show you an amortization and ask if you recognize that.
A Yes, I do.
Q Can you tell us what that is.
A It was an amortization and whenever [Malahmeh] would bring a payment, I would notate the date and the amount, and[,] as you notice, the amount was always a little short or always late.
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Q Okay. So it’s correct to say that as a payment was made you would simply note the date and the amount of payment.
A Yes.
Q So this is not a running total of what you viewed the debt to be at any particular point in time.
A That’s correct.

Further, when the trial court examined Carret, the following exchange took place:

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Cite This Page — Counsel Stack

Bluebook (online)
61 So. 3d 693, 10 La.App. 3 Cir. 1002, 2011 La. App. LEXIS 152, 2011 WL 408876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derouen-v-malahmeh-lactapp-2011.