Great Southern Oil & Gas Co. v. Century Mineral Corp.

535 So. 2d 1235, 1988 La. App. LEXIS 2767, 1988 WL 133776
CourtLouisiana Court of Appeal
DecidedDecember 14, 1988
DocketNo. 87-1022
StatusPublished

This text of 535 So. 2d 1235 (Great Southern Oil & Gas Co. v. Century Mineral Corp.) 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
Great Southern Oil & Gas Co. v. Century Mineral Corp., 535 So. 2d 1235, 1988 La. App. LEXIS 2767, 1988 WL 133776 (La. Ct. App. 1988).

Opinion

KNOLL, Judge.

This appeal concerns the validity and ranking of two competing privileges on certain shares of stock owned by Century Mineral Corporation (hereafter Century), which are claimed by Great Southern Oil & Gas Co., Inc. (hereafter Great Southern), a [1236]*1236seizing judgment creditor under a writ of fieri facias, and the Bank of Lafayette (hereafter Bank), as the purported conventional pledgee. The trial court ruled that Century’s pledge of those shares to the Bank outranked Great Southern’s seizure.

Great Southern appeals, contending that the trial court erred in: (1) holding that Great Southern did not have standing to assert the invalidity of the pledge which the Bank had claimed a superior privilege; (2) holding that, because of the absence of actual objection on the part of a direct signatory of the voting agreement which the seized corporate stock was subject to, Great Southern could not assert the superiority of its privilege as against the Bank’s imperfected pledge; and, (3) failing to hold Great Southern’s privilege was superior to the Bank’s pledge. We affirm.

FACTS

On September 15, 1978, Kedgeree Corp., N.V. Frank R. Bailey, Jr., Edgar Bright, Jr., Raymond Randolph, Yehia Omar, and William E. Simon, five of the shareholders of the Vermillion Irrigation Company (hereafter Vermillion), entered into a voting agreement to provide for the manner in which they would cast votes for the election of Vermillion’s directors.

During 1980 and 1981 Century acquired 107 shares of Vermillion stock, evidenced by 8 stock certificates. The 8 stock certificates may be divided into two groups. Group One consists of 5 stock certificates (Nos. 211, 228, 229, 230, and 232), totalling 58 shares, which bear the following legend on their face:

“Pursuant to an agreement dated as of September 15, 1978 among Kedgeree Corp. N.V., the Corporation, Frank R. Bailey, Jr., Edgar Bright, Jr., Yehia Omar, Raymond Randolph and William E. Simon, the shares evidenced by this certificate may not be sold, assigned, exchanged, transferred, pledged or otherwise disposed of or encumbered by the holder thereof unless the transferee thereof has agreed in writing to be bound by the provisions of said agreement to the same extent as if it were an original party thereto. A copy of said agreement is on file in the offices of the Corporation, as required by Subsection 12:29B of the Louisiana Business Corporation Law.”

Century acquired these 58 shares from a party or parties who were signatories to the voting agreement. Group Two consists of 3 stock certificates (Nos. 213, 231, and 234) totalling 49 shares. These 49 shares do not bear the aforementioned legend and none were acquired by Century from a signatory party or parties to the voting agreement.

On June 29, 1983, Century signed a written collateral pledge agreement which pledged Vermillion Stock Certificates 211, 213, 230, 231, 232, and 234 to the Bank as security for a loan/secured line of credit of $1,000,000. Eventually, Century, without a written pledge, also delivered Vermillion Stock Certificates 228 and 229 to the Bank. At no time did the Bank agree in writing to be bound by the voting agreement which affected Group One of the stock certificates.

On September 17, 1985, Great Southern obtained a judgment against Century for $1,000,000 plus interest, attorney’s fees and costs. On January 21, 1986, after Great Southern’s judgment became exec-utory, it requested a writ of fieri facias directing the Lafayette Parish Sheriff to seize Century’s 8 stock certificates which were in the Bank’s possession. On February 18, 1986, the Bank intervened in Great Southern’s action against Century, asserting its right as pledgee of the 8 stock certificates, and asking that its privilege as pledgee be recognized as superior to Great Southern’s seizure.

STANDING

Great Southern first contends that the trial court erred in ruling that Great Southern lacked standing to contest the validity of the Bank’s security interest in the stock certificates.

LSA-C.C.P. Art. 2292 provides:

“The seizing creditor, by the mere act of seizure, acquires a privilege on the prop[1237]*1237erty seized, which entitles him to a preference over ordinary creditors.
When several seizures of the same property are made by ordinary creditors, the seizing creditors acquire a privilege and are entitled to a preference among themselves according to the order of their seizures.”

Privilege is a right, which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those who have mortgages. LSA-C. C. Art. 3186. The preference among privileged creditors is settled by the different nature of their privileges. LSA-C.C. Art. 3187.

Though no codal authority specifically addresses the issue of standing raised herein, we conclude that as between competing privilege holders, it is inherent in the foregoing codal articles that Great Southern has standing to urge the invalidity of the Bank’s competing pledge. Accordingly, we find that the trial court erred insofar as it held Great Southern lacked standing.

STOCK PLEDGE

Great Southern contends that Century’s stock pledge to the Bank was ineffective because of the legend on the stock (the Group One stock) which stated that it could not be pledged unless the pledgee agreed in writing to be bound by the voting agreement. As to the stock which had no legend (the Group Two stock), Great Southern contends that Century’s pledge was likewise ineffective because the Bank had actual knowledge of the voting agreement.

We shall first address the pledge of the non-legended stock, the Group Two stock.

LSA-R.S. 12:57(F) provides:

“(1) No by-law or other restriction on the transfer of shares, (2) no provision for compulsory offer of shares of its own stock for purchase by, or sale to, the corporation, (3) no agreement among shareholders binding on others than the parties signatory thereto, and (4) no lien or privilege in favor of a corporation on shares of its own stock, shall be recognized or enforced, unless such restriction, provision or agreement, or the right of the corporation to such lien or privilege, is set forth or summarized, or a reference thereto and information as to where the same may be inspected is contained, in the certificates representing the corporation’s shares.”

The record clearly reflects that the voting agreement did not affect all of the Vermillion stock. Moreover, at trial the litigants stipulated that the Group Two stock certificates in Vermillion were not derived from nor originally held by an original signatory party or parties to the Voting Agreement. It is axiomatic that the signatories to the voting agreement could only burden the shares they either owned or later acquired; they were powerless to burden those shares over which they did not have ownership rights. See LSA-C.C. Art. 477.

Great Southern’s reliance upon LSA-R.S. 10:8-204 and Thibodeaux v. Pioneer Land Development & Realty Corporation, 420 So.2d 1162 (La.App. 5th Cir.1982), writ granted only to award legal interest from judicial demand, 423 So.2d 1178 (La.1982) which addressed the interplay of LSA-R.S. 10:8-204 and LSA-R.S. 12:57(F), is misplaced.

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535 So. 2d 1235, 1988 La. App. LEXIS 2767, 1988 WL 133776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-southern-oil-gas-co-v-century-mineral-corp-lactapp-1988.