Green v. Culpepper

652 So. 2d 138, 1995 La. App. LEXIS 406, 1995 WL 81274
CourtLouisiana Court of Appeal
DecidedMarch 1, 1995
DocketNo. 26393-CA
StatusPublished
Cited by1 cases

This text of 652 So. 2d 138 (Green v. Culpepper) 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
Green v. Culpepper, 652 So. 2d 138, 1995 La. App. LEXIS 406, 1995 WL 81274 (La. Ct. App. 1995).

Opinions

I iMARVIN, Chief Judge.

LSA-Const. Art. 5, § 8, mandated a rear-gument of this appeal before a five-judge panel when one judge of the original three-judge panel dissented to an opinion reversing the judgment of the trial court.

In this litigation between the two former shareholders of a Jonesboro automobile dealership (Ron D’Aguiar Chevrolet-Olds, Inc.) that went out of business at some unspecified time after one investor withdrew from the financially strained dealership in 1983, the trial court rendered a judgment on Green’s main demand on a 1988 promissory note and on Culpepper’s reeonventional demand for Green’s “share” of the debts of the corporate dealership that Culpepper alleged he personally paid after agreeing to buy Green’s half interest in the dealership in 1983.

In this appeal Green initially sought to recover the contractual interest and ten percent attorney fees, as called for in Culpep-per’s promissory note, and to reverse the judgment against him on Culpepper’s reeon-ventional demand. Green contends the trial court ruled on issues that were not raised by the parties in the reeonventional demand and that Culpepper contractually assumed responsibility for all dealership debts when Green withdrew from the dealership. Cul-pepper did not appeal.

We affirm the judgment on the main demand and reverse and render judgment dismissing Culpepper’s reeonventional demand against Green.

MAIN DEMAND

The $76,000 note held by Green represents the balance owed by Culpepper on funds he used for his initial $133,500 purchase of 50 percent ofjjthe dealership’s corporate stock from a third party in 1982. Green bought the other half of the corporate stock for the same price. Green and Culpepper each obtained the funds for their initial stock purchase from a bank that accepted property owned by Green as collateral security for the two loans.

In 1988, Green paid off his and Culpep-per’s bank loans to obtain the release of the collateral. In turn, he accepted Culpepper’s [140]*140promissory note for $76,897 which was the amount that Green paid to satisfy Culpep-per’s obligation to the bank. Culpepper made only a few monthly payments on the note in 1988 and none thereafter, prompting Green to file his action on the note in 1989.

Culpepper claimed there was no consideration for the note, but the trial court correctly found otherwise, rendering judgment in Green’s favor for the principal balance due on the note, with legal interest from date of judicial demand. Culpepper did not appeal that judgment.

Green initially sought to have the judgment amended to award contractual rather than legal interest, but expressly abandoned this claim at oral argument here, conceding that the trial court’s interest award conforms precisely to what Green sought in his pleadings. Green also claimed the trial court should have awarded ten percent attorney fees, but points to no evidence substantiating an attorney fee award in any amount. Green’s contention that Culpepper stipulated to a ten percent attorney fee award is belied by the record.

| SRECONVENTIONAL DEMAND

The primary issues on appeal arise from Culpepper’s reeonventional demand in which he sought to recover about $100,000 as Green’s “share” of certain dealership debts that Culpepper allegedly paid after he and Green signed a contract entitled “Buy/Sell Agreement” in October 1983, ostensibly ending Green’s relationship with the business. Apparently, both Culpepper and Green had to personally guarantee payment of many corporate debts. On property apparently leased by Green, the corporate dealership operated in the same location under the name Lively-Culpepper for some unspecified time after the 1983 agreement was executed, burdened by considerable debt which eventually forced the dealership to close.

The 1983 agreement contemplated that Culpepper would solely own the corporate dealership. The 1983 agreement is essentially contained on two pages, the third page containing only the attest paragraph and the signatures. We edit and append the agreement to this opinion. Through the first paragraph on page two of the agreement, it is clear that the actual transfer of Green’s stock to Culpepper was conditioned upon the approval of the transaction by the Chevrolet and Oldsmobile Divisions of General Motors and upon Culpepper paying Green $47,390 “cash consideration” within 30 days after GM approval was granted. It is apparent that while neither condition was fulfilled, Culpep-per acted as the sole owner and operated the dealership as Lively-Culpepper after the agreement was executed.

After paragraph two of page two states the $100 and OVC “consideration for this Agreement ... paid by Bobby L. Culpepper” to Green, |4the agreement states that Green “does hereby assign” to Culpepper all rights, title and interest under any leases of property occupied by the corporate dealership and “in return for same, Bobby L. Culpepper hereby assumes any and all liabilities under any leases.” In the next paragraph the agreement states:

That BOBBY L. CULPEPPER does hereby agree to hold harmless A.Y. GREEN, JR. in connection with any indebtedness of [the corporate dealership], including in-debtednesses to General Motors Acceptance Corporation, Jonesboro State Bank and any and all other indebtednesses of said corporation.

While testifying that he unconditionally assumed responsibility for all dealership debts in the 1983 agreement, Culpepper, a Jones-boro attorney, explained that he was not aware of the amount of the debts, or of the fact that the dealership was then insolvent, when he assumed this obligation.

The trial court rescinded the 1983 agreement, notwithstanding that neither party sought this relief in the pleadings or at trial. The court cast Green for about $75,000, representing about $100,000 as Green’s half of the dealership debts that Culpepper claimed he had paid, in testimony uncorroborated by any documentary proof, less $25,000 as the value of Green’s half interest in real estate jointly owned by Green and Culpepper, according to Culpepper’s tangential estimation of the property’s value. The estimate was mentioned when Culpepper was testifying [141]*141about the amount of a bank loan that was secured by mortgage of the property. Neither the value nor the ownership or possession of the real estate was placed at issue by either party.

|5The court declared Green and Culpepper joint owners of the remaining dealership assets and joint obligors of the remaining debts. Finally, the court ordered Green to return to Culpepper the $47,390 purchase price that was to be paid him by Culpepper when GM approved Culpepper’s purchase of Green’s stock, notwithstanding the absence of evidence suggesting that Culpepper paid any part of the $47,390 price to Green.

SCOPE OF JUDGMENT

Green contends the trial court’s sweeping rescission of the 1983 agreement exceeds the bounds of the issues raised by the parties. Agreeing with this contention, we observe that much of the confusion in the record stems from Culpepper’s erroneous contention or assumption that the 1988 note to Green was for Culpepper’s purchase of Green’s interest in the dealership in October 1983 rather than for the balance owed on Culpepper’s initial investment with Green when they acquired the corporate dealership in early 1982.

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Cite This Page — Counsel Stack

Bluebook (online)
652 So. 2d 138, 1995 La. App. LEXIS 406, 1995 WL 81274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-culpepper-lactapp-1995.