Hibernia National Bank v. Blossman

583 So. 2d 5, 1991 La. App. LEXIS 1107, 1991 WL 78847
CourtLouisiana Court of Appeal
DecidedMay 16, 1991
DocketNos. 90-CA-1779, 91-C-0187
StatusPublished
Cited by4 cases

This text of 583 So. 2d 5 (Hibernia National Bank v. Blossman) 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
Hibernia National Bank v. Blossman, 583 So. 2d 5, 1991 La. App. LEXIS 1107, 1991 WL 78847 (La. Ct. App. 1991).

Opinion

WARD, Judge.

The settlors and beneficiaries of the Richard S. Blossman Family Trust urge this appeal disputing the Hibernia National Bank’s invocation of a concursus proceeding and right to injunctive relief.

On October 26,1983 Richard S. Blossman and his children, Amy Ruth Blossman Ill-ing, Ann Rene Blossman Komidor, Richard S. Blossman, Jr., Linda Gail Blossman Sa-lassi and Lane Elizabeth Blossman Perez executed the Richard S. Blossman Revocable Trust. Richard S. Blossman, Sr. is the principal and beneficiary interest owner of a 50% interest in the Trust while his sons and daughters are each principal and beneficiary interest owners of the other 50% interest in the Trust. The Trust Department of First National Bank, Covington, Louisiana was named as Trustee.

Among other things, the Trust document vests the Trustee with the power and authority to sell, pledge, purchase, transfer, convey, mortgage, lease and dispose of the trust property. The document also contains a provision granting a beneficiary the right to terminate his or her interest in the trust estate in whole or part at any time by giving the Trustee thirty days written notice.

Shortly after creation of the trust, First National Bank loaned the trust $250,000. First National Bank, as trustee, executed a promissory note dated September 25, 1987 which matured one year later. To renew the loan, First National Bank as Trustee executed another promissory note on September 25, 1988 in the principal amount of $218,000.00. Securing the debt is a collateral pledge agreement executed by the Trustee and dated September 30, 1988, pledging a 50% interest in the trust to secure payment of the trust’s debt. Securing the note further is a commercial contract of suretyship confected by letter dated September 23, 1987 signed by “Richard S. Blossman.” Both Messrs. Blossman, Sr. and Jr. deny writing or signing this letter; Richard S. Blossman denies that he expressly or tacitly consented to the pledge of his 50% interest in the trust and the Blossmans further argue that the letter, pretermitting whether it is a forgery, is insufficient to satisfy the legal requirements of a commercial suretyship agreement. Nonetheless, the Blossmans and the trust do not deny the existence of a debt.

In November 1988 the Federal Home Loan Bank Board placed First National Bank of Covington into receivership, and the Federal Deposit Insurance Corporation, as receiver, sold First National Bank’s assets to Hibernia. Thus, Hibernia finds itself in the same position as First National Bank of Covington;, it is the Trustee and also a creditor of the trust.

On September 30, 1989 the renewal note matured and the trust defaulted on payment. Consequently, on January 28, 1990 Hibernia National Bank, invoked a concur-sus proceeding, naming as defendants, Hibernia National Bank as Trustee and the Blossmans as income and principal beneficiaries, contending that as Trustee it held [7]*7property to which Hibernia, as a creditor, and the Blossmans as trust beneficiaries, are making competing claims. Subsequently, the Hibernia Bank as Trustee obtained an order permitting it to deposit the trust’s assets into the registry of the Court.

Responding to Hibernia’s concursus proceeding, the Blossmans filed peremptory and dilatory exceptions of no right of action, no cause of action and lack of procedural capacity. The Trial Court overruled all exceptions. On April 11,1990 the Bloss-mans gave Hibernia as Trustee, a 30 day written notice of the termination of the trust.

Fearing the impairment of security or loss of its right of recovery against the trust, on May 11, 1990 Hibernia as a creditor sought injunctive relief against the Blossmans under La.R.S. 9:2232 and C.C.P. arts. 3601 through 3613. The Court granted Hibernia a temporary restraining order, preventing the termination of the trust.

The Blossmans opposed Hibernia’s application for a Temporary Restraining Order and Preliminary and/or Permanent Injunction, arguing that Hibernia failed to meet the requirements for injunctive relief and reconvened seeking damages resulting from the prevention of the dissolution of the trust. Particularly, the Blossmans contest the validity of the temporary restraining order arguing that because Hibernia failed to furnish security, the temporary restraining order issued improperly without bond. C.C.P. art. 3610. Accordingly, the Blossmans maintain that the trust terminated pursuant to the written notice and hence, the preliminary injunction was moot since the very occurrence the injunction sought to prevent, the dissolution of the trust, in fact occurred, in the absence of a valid temporary restraining order.

As previously noted, the Blossmans opposed the concursus proceeding on exceptions of no cause and no right of action and raised these same exceptions to Hibernia’s petition for temporary restraining order, preliminary injunction and permanent injunction. The trial court overruled all of these exceptions. The Blossmans have appealed the issuance of an injunction and have sought supervisory writs on the rulings on the exceptions. Because the subject matter of the writ application is so closely alligned with issues on appeal, the cases have been consolidated for consideration and determination. For the following reasons, we reverse the rulings on the exceptions of no cause of action.

The peremptory exception of no cause of action (La.Civ.Code Proe. Art. 927(4)) tests the legal sufficiency of the pleadings. Steadman v. Sladovich, 430 So.2d 816 (La.App. 5th Cir.1983). In order for the exception to be maintained, the court must determine whether the law affords any remedy to the plaintiff under the allegations of the petition. Trigg v. Camper Village, Inc., 467 So.2d 17 (La.App. 1 Cir.1985), writ denied, 470 So.2d 121 (La.1985).

LSA-C.C.P. art. 4651 defines a con-cursus proceeding as:

[O]ne in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.

Concursus in Louisiana is substantially the same as common law interpleader. 48 C.J.S. Interpleader § 7 at 128 (1981). Historically, concursus was generally applied only , in the context of a stakeholder im-pleading claimants to a fund in his possession which was admittedly due. Sarpy, Concursus: Interpleader in Louisiana, 35 Tul-L.Rev. 531, 538 (1961); Austral Oil Company Inc. v. Milliken & Farwell, Inc., 307 So.2d 377, 378-379 (La.App.1st Cir.1974), writ den. 310 So.2d 642 (La.1975). However, with the adoption of the Code of Civil Procedure, the proceeding was broadened to include within its scope the common law interpleader1 and the bill in the [8]*8nature of interpleader2.

48 C.J.S. Interpleader § 7 states in part:

The purpose of the concursus action is to avoid a multiplicity of suits, by providing for a single judgment which will finally adjudicate all the issues between all the parties.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Regions Bank v. St. James Hotel, L.L.C.
144 So. 3d 50 (Louisiana Court of Appeal, 2014)
Louisiana State Board of Dentistry v. DDS
18 So. 3d 792 (Louisiana Court of Appeal, 2009)
Hibernia Nat. Bank v. ORLEANS REG. HOSP.
682 So. 2d 1291 (Louisiana Court of Appeal, 1996)
Hibernia National Bank v. Blossman
589 So. 2d 1067 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
583 So. 2d 5, 1991 La. App. LEXIS 1107, 1991 WL 78847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibernia-national-bank-v-blossman-lactapp-1991.