First Nat. Bank v. Carr

572 So. 2d 1106, 1990 La. App. LEXIS 2937, 1990 WL 211376
CourtLouisiana Court of Appeal
DecidedDecember 18, 1990
Docket89 CA 1811
StatusPublished
Cited by7 cases

This text of 572 So. 2d 1106 (First Nat. Bank v. Carr) 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
First Nat. Bank v. Carr, 572 So. 2d 1106, 1990 La. App. LEXIS 2937, 1990 WL 211376 (La. Ct. App. 1990).

Opinion

572 So.2d 1106 (1990)

FIRST NATIONAL BANK
v.
A.E. CARR, Jr.

No. 89 CA 1811.

Court of Appeal of Louisiana, First Circuit.

December 18, 1990.

*1107 Tom W. Thornhill, Slidell, for plaintiff-appellee.

James F. Quaid, Metairie, for defendant-appellant.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal in a suit on three promissory notes.

FACTS

On July 1, 1988, First National Bank (FNB) filed suit against A.E. Carr, Jr. for $39,903.79 plus interest and attorney's fees, arising out of three promissory notes.[1] On December 7, 1988 (the date of *1108 the trial on the merits), Carr filed a peremptory exception pleading the objection of "no right of action and no cause of action."[2] In his exception, Carr asserted that FNB was no longer a holder of the promissory notes in that Hibernia National Bank (Hibernia) had acquired the notes. On that same day, Hibernia filed a motion and order to substitute itself as plaintiff in place of FNB, which was signed by the trial judge.

After hearing all of the evidence, the trial judge denied Carr's exception pleading the objection of no right of action and rendered judgment in favor of Hibernia and against Carr as follows:

1. [I]n the principal sum of SIX HUNDRED SEVENTY-THREE AND 23/100 ($673.23) DOLLARS plus accrued interest of $79.29 as of December 7, 1988 with interest from that date at a rate of 13.75 percent per annum until paid.
2. [I]n the principal sum of TWENTY-FIVE THOUSAND TWO HUNDRED FIFTY AND NO/100 ($25,250.00) DOLLARS plus accrued interest of $4,353.37 as of December 7, 1988 with interest from that date at a rate of 14 percent per annum until paid.
3. [I]n the principal sum of THIRTEEN THOUSAND NINE HUNDRED EIGHTY AND 56/100 ($13,980.56) DOLLARS plus accrued interest of $1,659.65 as of December 7, 1988 with interest from that date at a rate of 14 percent per annum until paid.

The trial judge also awarded Hibernia $2,500.00 in attorney's fees plus all costs.

From this adverse judgment, Carr appeals, raising the following issues:

I. Whether Hibernia National Bank is the proper party/plaintiff in the lawsuit and real party-in-interest.
II. Whether Hibernia National Bank was properly substituted for First National Bank prior to trial on the merits.
III. Whether A.E. Carr, Jr., defendant, was entitled to a continuance to respond to the lawsuit after substitution was improperly effected in the midst of trial on the merits.
IV. Whether or not Hibernia National Bank is a holder in due course.

IS HIBERNIA THE PROPER PARTY PLAINTIFF?

FNB instituted the instant suit. On the day of trial, Carr filed a peremptory exception pleading the objection of no right of action. In support of this exception, Carr argued that FNB was not the proper party to institute the suit because its assets had been acquired by Hibernia. Carr alleged that he had been notified that Hibernia would service his note and account and that FNB was no longer a holder of the note. Carr reasoned that, as such, Hibernia was the proper party plaintiff. Attached to Carr's memorandum in support of his exception was a photostatic copy of the legal notice of Hibernia's acquisition of FNB's assets. The matter was referred to the merits.

On that same day, Hibernia filed a motion to substitute itself as party plaintiff on the grounds that it had purchased all of the assets and deposits of FNB. The trial *1109 court granted Hibernia's motion, and the matter proceeded to trial against Carr.

On appeal, Carr now contends that Hibernia is not the proper party plaintiff. Carr reasons that there is no evidence in the record to show that FNB has been dissolved or that Hibernia acquired FNB's assets, particularly the three promissory notes sued upon.

The exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. LSA-C.C.P. art. 927(5); In re Norton, 471 So.2d 1053 (La. App. 1st Cir.1985); Edwards v. Superior Coach Sales, Inc., 417 So.2d 1289 (La.App. 1st Cir.), writ denied, 422 So.2d 423 (La. 1982). Evidence supporting or controverting an exception of no right of action is admissible. LSA-C.C.P. art. 931; Edwards v. Superior Coach Sales, Inc., 417 So.2d at 1290; Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979).

In the instant case, the uncontradicted testimony of Edward F. Gantar, Jr. established that Hibernia purchased the assets of FNB and that the three notes giving rise to the instant suit were among the assets purchased by Hibernia. The trial judge, in his oral reasons for judgment, stated that he accepted the testimony of Gantar and that, based upon this testimony, Hibernia proved by a preponderance of the evidence that it was the proper party plaintiff.

Additionally, we note that the three promissory notes sued upon were bearer paper.[3] Bearer paper is transferable by mere delivery. LSA-R.S. 10:3-202(1); New Orleans Federal Savings and Loan Association v. Lee, 449 So.2d 1099 (La.App. 5th Cir.), writ denied, 456 So.2d 167 (La.1984). Hibernia established its status as a holder by producing the original notes. A holder is defined as a person "who is in possession of ... an instrument ... drawn, issued or indorsed ... to bearer...." LSA-R.S. 10:1-201. As a holder of an instrument, Hibernia has the right to enforce payment of the obligation. LSA-R.S. 10:3-301. See Caballero v. Wilkinson, 367 So.2d 349 (La. 1979); Chenault v. C & H Enterprises, Ltd., 514 So.2d 535 (La.App. 3rd Cir.1987).

Clearly, the trial court correctly determined that Hibernia established that it had an interest in judicially enforcing payment of the three promissory notes and that it had a right of action in the instant case.

SUBSTITUTION

Carr contends that the trial court erred in permitting Hibernia to substitute itself as party plaintiff on the day of the trial. Carr reasons that any substitution must take place prior to a trial on the merits and that Hibernia's motion to substitute was filed untimely.

LSA-C.C.P. art. 807, provides that:

When a party to an action transfers an interest in the subject matter thereof, the action shall be continued by or against such party, unless the court directs that the transferee be substituted for or joined with the transferor.

Comment (a) to this article provides as follows:

(a) This article makes it possible for the trial court to order the substitution or joinder of the transferee, when a party has transferred an interest in the subject matter of the action after its institution, but prior to trial. At the same time, it insures the validity of the judgment for and against the original parties, if the transferee is not subject to the jurisdiction of the court, or if for any other reason the trial court feels it unnecessary or inadvisable to require the substitution or joinder. (Emphasis added).

In the instant case, the record reflects that immediately after Carr filed his exception pleading the objection of no right of action, Hibernia filed its motion to substitute. Carr argued that the motion to substitute should be denied, contending that he *1110 was entitled to know the identity of the holder of the promissory notes so that he could adequately prepare for trial.

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Cite This Page — Counsel Stack

Bluebook (online)
572 So. 2d 1106, 1990 La. App. LEXIS 2937, 1990 WL 211376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-nat-bank-v-carr-lactapp-1990.