First National Bank v. Kellick's Catch Pen & Western Wear, LLC

182 So. 3d 227, 2015 La. App. LEXIS 2281, 2015 WL 7280600
CourtLouisiana Court of Appeal
DecidedNovember 18, 2015
DocketNo. 50,196-CA
StatusPublished
Cited by1 cases

This text of 182 So. 3d 227 (First National Bank v. Kellick's Catch Pen & Western Wear, LLC) 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 National Bank v. Kellick's Catch Pen & Western Wear, LLC, 182 So. 3d 227, 2015 La. App. LEXIS 2281, 2015 WL 7280600 (La. Ct. App. 2015).

Opinion

LOLLEY, J.

| tKellick’s Catch Pen and Western Wear, LLC (herein referred to as “Kellick’s LLC,” the “LLC,” or the “company”) appeals the judgment by the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana, granting the motion for summary judgment filed by First National Bank in this foreclosure action. For the followings reasons, we affirm the trial court’s judgment.

Facts

Kellick’s LLC, the appellant, is a Louisiana limited liability company formed in 1995 with Randy Kellick, Connie Kellick, Nicky Kellick, and Lanell Kellick. as founding members. The voting rights of the members were not equally shared: Ronnie and Connie (husband and wife at the time) each owned 26% in the company and Nicky and Lanell (husband and wife) each owned a 24% interest.

Originally, Nicky, on behalf of Kellick’s LLC, signed a promissory note dated July 6,- 2010, in the amount of $121,631.00. The note was secured by a multiple indebtedness mortgage of the same date on immovable property owned by Kellick’s LLC on Grabault Road in Bastrop, Louisiana (the “property”). The mortgage was also signed by Nicky on behalf of Kellick’s LLC.

Prior to obtaining the loan, Nicky provided FNB with the articles of organization of Kellick’s LLC, which state as follows:

7. Unless and until an amendment to these articles by authentic act providing otherwise , is filed in the office of the Louisiana.Secretary of State and in each parish in which KELLICK’S CATCH PEN ARENA AND WESTERN WEAR, L.L.C. owns immovable property, any person dealing with KELLICK’S CATCH PEN-1 .ARENA AND WESTERN WEAR, L.L.C. may rely upon a certificate of RANDY DALE KELLICK, CONNIE WOR-LEY KELLICK, NICKY WAYNE KELLICK and/or LANELL RUSHING KELLICK to
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(c) establish the authority; of any person to act on behalf of KEL-LICK’S CATCH REN ARENA AND WESTERN WEAR, L.L.C., including but not limited to the authority to take actions referred to in Louisiana Revised Statutes Title 12, Section . 1318(B), which actions include:
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(4) The incurrence of indebtedness by the company other than in the ordinary course of its business
(5) The . ’.. encumbrance of any im-movables of the company_ (Emphasis added).

A resolution to borrow, grant collateral (the “resolution”) was,-.also provided by Kellick’s LLC,,to FNB, and it stated,, in pertinent part:

• ACTIONS AUTHORIZED. The authorized person listed above may enter into any agreements of any nature with [FNB], and- those agreements will bind the Company. Specifically, but without limitation, the authorized person is authorized, empowered, and directed to do the following for and bn behalf of the Company:
Loan. To negotiate and obtain a loan ..from [FNB] ... under such terms and conditions as- said member may agree to [230]*230in his or her sole discretion, for such sum or sums of money as in his or her judgment should be borrowed.
■ Execute Notes. To execute and deliver to [FNB] the promissory note or notes, or other evidence of the Company’s credit accommodations, on [FNB]’s forms, at such rates of interest and on such terms as may be agreed upon, evidencing the sums of money so borrowed or any of the Company’s indebtedness to [FNB], and also to execute and deliver to [FNB] one or more renewals, extensions, modifications, prefinancings, consolidations, or substitutions for one or more of the notes, any portion of the notes, or any other- evidence of credit accommodations.
Execute Security Documents. To execute and deliver to [FNB] the forms of mortgage....

Nicky was the authorized person listed on the resolution, which was signed by Nicky, Lanell, and purportedly by Randy.

The original note was refinanced and replaced with a promissory note dated November 12, 2010, in the principal amount of $191,293.46, which was also taken out by Kellick’s LLC in favor of FNB. This note was also signed by Nicky on behalf of the company and was secured by the previously executed multiple indebtedness mortgage. Kellick’s LLC failed to make any payments on the note, despite demand by FNB. When Kellick’s LLC defaulted on the note, FNB filed a petition for executo-ry process seeking to enforce the mortgage and foreclose on the property. Kel-lick’s LLC filed a petition for preliminary injunction to stop: the executory proceeding, claiming that Randy’s signature had been forged on the resolution and Nicky did not have authority to act on behalf of the company. In response, FNB amended its petition to convert the proceeding to an ordinary proceeding, then filed its motion for summary judgment.

Kellick’s LLC opposed FNB’s motion, arguing that a majority of the members did not approve the making of- the note or the mortgage of the property, and the resolution purporting to give authority to Nicky to transact the note/mortgage with FNB contained Randy’s forged signature. In fact, Kellick’s LLC submits that Randy never saw or had any knowledge of the resolution, and that neither Randy, Connie, nor the company received any ^benefits of the loan. A hearing on FNB’s motion was conducted, and after taking the matter under advisement, the trial court granted FNB’s motion. No oral or written reasons for judgment were issued, arid Kellick’s LLC filed a written request for written reasons. The trial court failed to issue written reasons. Subsequently, Kel-lick’s LLC brought this appeal'.

Discussion

On appeal, Kellick’s LLC raises assignments of error in connection with the issue of Nicky’s actual and/or apparent authority to incur indebtedness on behalf of the company and encumber property owned by the company. The trial court granted FNB’s motion for summary judgment as prayed for in its petitions seeking the foreclosure.1 On appeal, Kellick’s [231]*231LLC strenuously argues that Randy’s forged signature creates a material issue of fact making summary judgment improper in- this case; we find, however, even if the signature is a forgery, that is an immaterial fact to the case sub judice. The primary issue is that FNB reasonably relied on the internal documents of Kellick’s LLC, giving Nicky the authority to incur the subject indebtedness and ■ encumber the company’s immovable property. Summary judgment in favor of FNB was not in error.

_J^Summary Judgment

Appellate courts review a trial court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in.the light most favorable to the nonmovant. Hines v. Garrett, 2004-0806 (La.06/25/04), 876 So.2d 764. Summary judgment is warranted only if “there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(C)(1). The judge’s role in ruling on a motion for summary judgment is not to evaluate, the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine, issue of triable fact. Supra. All . doubts should be resolved in the nonmoving party’s favor. Id.

' A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.

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Bluebook (online)
182 So. 3d 227, 2015 La. App. LEXIS 2281, 2015 WL 7280600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-kellicks-catch-pen-western-wear-llc-lactapp-2015.