Harrison v. Smith

814 So. 2d 42, 2001 La.App. 1 Cir. 0458, 2002 La. App. LEXIS 912, 2002 WL 468034
CourtLouisiana Court of Appeal
DecidedMarch 28, 2002
DocketNo. 2001 CA 0458
StatusPublished
Cited by6 cases

This text of 814 So. 2d 42 (Harrison v. Smith) 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
Harrison v. Smith, 814 So. 2d 42, 2001 La.App. 1 Cir. 0458, 2002 La. App. LEXIS 912, 2002 WL 468034 (La. Ct. App. 2002).

Opinions

_[¿pOWNING, J.

Hannah C. Harrison, in her capacity as the succession representative of the Succession of her husband, Johnny Harrison, Sr. (hereinafter referred to as “Harrison”) 2 appeals a trial court judgment on Ronald Ray Smith’s peremptory exception raising the objection of prescription. The trial court ruled that the succession’s rights under a promissory note had prescribed. For the following reason, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

Ronald Ray Smith acquired ownership of a home and lot in 1983, partly through inheritance and partly through a sale with mortgage wherein he assumed liability for the note at issue in the amount of $27,500. In 1992, Mr. Smith and his then wife, Carolyn Harrison Smith, divorced. As part of the divorce settlement, Mr. Smith gave Mrs. Smith full ownership of the home. Mrs. Smith, however, did not assume liability for the note.

Mrs. Smith died in 1994. At that time, Troy & Nichols, Inc., the note holder, had accelerated the note pursuant to its terms and instituted foreclosure proceedings.3 On April 7, 1994, Troy & Nichols returned a partial payment to Mr. Smith saying it was unable to accept the checks. To prevent foreclosure, Mrs. Smith’s father, Johnny Harrison, Sr., used proceeds from a life insurance policy on her to purchase the note and mortgage. His grandchildren, along with Mr. Smith, were living in the home at the time. Through counsel, Mr. Harrison transmitted a cashier’s check to Troy and Nichols for the full amount claimed on June 6, 1994. On June 14, 1994, the trial court signed an order of dismissal prepared by Troy & |3Nichols which states that “the Mortgage Loan foreclosed on in this action has now been brought current and reinstated, and that the plaintiff wishes to dismiss this suit without prejudice.” On June 28, 1994, Troy and Nichols executed a notarial endorsement and assignment of the note to Mr. Harrison.

On June 8, 1999, Mr. Harrison filed suit against Mr. Smith seeking payment in full of the amounts owing on the note pursuant to the note’s acceleration clause, interest, attorney fees and costs. Mr. Harrison subsequently amended his petition to also join his daughter’s succession as a defendant. In his answer, Mr. Smith filed the peremptory exception raising the objection of liberative prescription.

At a combined hearing on the exception and the trial on the merits, the trial court concluded that Mr. Harrison’s claim on the note had prescribed and entered judgment accordingly.4 Harrison now appeals raising two assignments of error: 1) that the trial court erred in granting the peremptory exception raising the objection of prescription; and 2) the trial court erred in determining after a trial on the merits that [45]*45the promissory note sued upon was unenforceable.

DISCUSSION

Actions on promissory notes are subject to a liberative prescription of five years. Prescription begins to run from the day payment is exigible. La. C.C. art. 3498. Prescription begins to run on an accelerated note upon acceleration. In Anthon v. Knox, 155 So.2d 53, 55 (La.App. 1 Cir.1963), this circuit cited the following rule:

“[W]here there is an acceleration clause giving the creditor the right upon certain contingencies to declare the whole sum due, the statute begins to run, only with respect to each installment, 14at the time the installment becomes due, unless the creditor exercises his option to declare the whole indebtedness due, in which case the statute begins to run from the . date of the exercise of the option.”

See also First Federal Savings and Loan Association of Rochester v. Mullone, 612 So.2d 1016, 1019 (La.App. 2 Cir.1993). See also Matherne v. Purdy, 576 So.2d 621, 623 (La.App. 4 Cir.1991) and Ellsworth v. West, 95-0988, pp. 5-6 (La.App. 4 Cir. 1/19/96), 668 So.2d 402, 405. Where steps are taken to accelerate a note more than five years before the institution of a suit, a promissory note is not enforceable because it prescribes under La. C.C. art. 3498. See Mullone, 612 So.2d at 1019.

Here, the undisputed evidence demonstrates that Troy & Nichols accelerated the note. By commencing foreclosure proceedings and in refusing to accept partial payment, Troy & Nichols gave unequivocal evidence of its intent to accelerate the note. See Id.

Harrison argues that prescription did not begin to run when the note was accelerated, but it cites no authority, and we can find none, in support of this proposition. The note itself contains no provision for reinstatement. While Troy & Nichols did dismiss the foreclosure suit and transfer the note to Mr. Harrison in June 1994, after payment in full of the amounts owed, the record contains no evidence that either of them attempted to enter into any new agreement with Mr. Smith to reinstate payment of the installments provided in the note. We find no authority for the proposition that transfer of ownership of an accelerated note vitiates an optional acceleration of payments, except on agreement of the involved parties. See, e.g., La. C.C. arts. 1879 et seq. regarding novations. Of course, the parties could have entered such an agreement, but no such agreement can be found in the record.

| ¡We observe that Troy & Nichols suggested the note had been “brought current and reinstated” in the order of dismissal it submitted to dismiss the foreclosure suit. The trial court, however, entered no such finding or order. At that time Troy & Nichols had been paid in full by Mr. Harrison. It appears, then, that Mr. Harrison was assigned whatever rights Troy & Nichols’ possessed under the accelerated note. See La. C.C. art. 2642 which states, “The assignee is subro-gated to the rights of the assignor against the debtor.” See also Young v. Cistac, 157 La. 771, 774-775, 103 So. 100, 101 (1925) where the Supreme Court said:

It is elementary that an assignee acquires his rights under the contract assigned to him only in accordance with the stipulations contained in said contract, and that he is without authority to change or add to such stipulations in making an assignment of his rights under the contract to a third person.

Harrison further appears to argue that Troy & Nichols’ voluntary dismissal of its [46]*46foreclosure suit makes the acceleration of the note disappear because “dismissal of a suit without prejudice restores matters to the status occupied before the filing of the suit.” Mr. Harrison’s succession cites LeBlanc v. Travelers Indemnity Company, 262 La. 403, 406, 263 So.2d 337, 338 (1972) in support of this position. The LeBlanc court explained, however, that “[s]uch a judgment merely leaves the situation, as to that cause of action, as if no suit had ever been filed upon it.” (Citation omitted.) LeBlanc, 262 La. at 406-407, 263 So.2d at 338; La. C.C. art. 3463.

We find no legal basis to construe this principle of restoring matters to their former status upon dismissal of a suit without prejudice to mean that a note once accelerated will be reinstated as if it were not accelerated.

Harrison next argues that Mr. Harrison’s purchase of the note in June 1994, interrupted prescription. It claims that the payment was a tacit | (¡acknowledgement that would interrupt prescription under La. R.S. 9:5807.

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814 So. 2d 42, 2001 La.App. 1 Cir. 0458, 2002 La. App. LEXIS 912, 2002 WL 468034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-smith-lactapp-2002.