Karageorge v. Cole

565 So. 2d 502, 1990 WL 84447
CourtLouisiana Court of Appeal
DecidedJune 20, 1990
Docket21510-CA
StatusPublished
Cited by10 cases

This text of 565 So. 2d 502 (Karageorge v. Cole) 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
Karageorge v. Cole, 565 So. 2d 502, 1990 WL 84447 (La. Ct. App. 1990).

Opinion

565 So.2d 502 (1990)

Michael G. KARAGEORGE and Mardelle Karageorge, Plaintiffs-Appellees,
v.
George N. COLE, Jr. and Delores Mai Burns Cole, Defendants-Appellants.

No. 21510-CA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 1990.

*504 Larry S. Butler, Betty J. Lee, Shreveport, for defendants-appellants.

Barry G. Feazel, Shreveport, for plaintiffs-appellees.

Before MARVIN, SEXTON and LINDSAY, JJ.

*505 LINDSAY, Judge.

The defendants, George and Delores Cole, appeal a trial court judgment ordering them to pay, subject to a set-off, the balance due on a promissory note executed in favor of the plaintiffs, Michael and Mardelle Karageorge. We affirm.

FACTS

Michael Karageorge was the owner of a diner known as Carter's Grill located in downtown Shreveport. In March, 1987, Mr. Karageorge sold the diner to the defendants, George and Delores Cole. The total purchase price was $25,000. The sale was executed under the Bulk Sales Act, LSA-R.S. 9:2961 et seq. The sale did not include the building in which the business was located. However, the plaintiffs sold all the fixtures and equipment contained in the restaurant. The equipment included a commercial dishwasher, two refrigerators, a coffeemaker, a refrigerated pie box, a refrigerated sandwich box, a milk dispenser, a tea dispenser and a juice dispenser. The sales agreement reflected that Mr. Karageorge was the owner of all these items.

The defendants paid $9,000 in cash and executed a promissory note in favor of the plaintiffs in the amount of $16,000, payable in monthly installments of $300 each. The defendants then took possession of the premises.

Shortly after the sale was consummated, it was determined that a ventilation hood in the kitchen required repair. Therefore, the parties agreed that Mr. Karageorge would forgive five payments at $300 each to compensate for this problem.

The defendants made several payments on the note. However, the defendants stopped making payments after allegedly finding that some of the equipment listed in the sales agreement was leased equipment which was not owned by Mr. Karageorge. It was also determined that Mr. Karageorge had numerous outstanding debts in connection with the business, there were defects in some of the equipment and there were defects in the building itself.

Upon the defendants' failure to pay the promissory note, the plaintiffs filed suit to recover the balance due, plus interest, costs and 15% attorney fees. The defendants answered and filed a reconventional demand for diminution of the sales price, alleging numerous problems and misrepresentations in the bulk sales agreement.[1]

Trial on the merits was held on November 10, 1988. At trial, the defendants admitted that they ceased making payments on the promissory note shortly after taking over the business. However, the defendants contended that due to defects in the building and problems with the equipment, and because Mr. Karageorge left many outstanding debts among restaurant suppliers who, in turn, would not extend credit to the business, they were entitled to a reduction in the price which they paid for the business.

Following the trial, the trial court handed down written reasons for judgment. The trial court found that the defendants admitted they had defaulted on the promissory note. Accordingly, the defendants were ordered to pay the plaintiffs the remainder due on the promissory note, plus interest and attorney fees in the amount of $2,000.

However, in addressing the defendants' reconventional demand, the court then found that the defendants were entitled to certain credits. The court found that the dishwasher, which the defendants thought they had purchased, was not owned by the plaintiffs. The court allowed the defendants a $2,000 credit for the dishwasher. The trial court also determined that due to the difficulties which the defendants experienced with some of the plaintiffs' creditors following the sale, the defendants were entitled to an award of damages in the amount of $2,000 for loss of business standing and reputation in the community.

The trial court found that the parties agreed that five monthly payments on the note would be forgiven. The trial court *506 also awarded attorney fees to the defendants in the amount of $3,000. All these sums found by the trial court to be due to the defendants were credited against the balance due on the note. Costs were assessed one-half to the plaintiffs and one-half to the defendants. The trial court signed its judgment on May 8, 1989.

The defendants suspensively appealed the trial court judgment. The plaintiffs neither appealed nor did they answer the appeal. The defendants contend the trial court erred in ordering them to pay the balance due on the promissory note, subject to credits, and erred in ordering them to pay $2,000 in attorney fees, in light of Mr. Karageorge's bad faith in making the sale. The defendants also argue the trial court awarded too little in damages. The defendants contend they were entitled to more than a credit of $2,000 for the equipment which was not owned by the plaintiffs. They also contend that they were entitled to an award of more than $2,000 for loss of business reputation and embarrassment.

THE PROMISSORY NOTE

The defendants argue that the trial court erred in ordering them to pay the principal balance due on the promissory note in the amount of $14,619.26, plus interest and $2,000 in attorney fees. This argument is meritless.

In a suit on a promissory note, the note is the foundation for the cause of action. Brass v. Minnieweather, 468 So.2d 611 (La.App. 2d Cir.1985). Where a debtor admits he has not paid the balance due on a promissory note, the holder is entitled to judgment, together with the attorney fees specified in the note. Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970).

Even where the amount of attorney fees to be paid by the maker of a note is specified in the note, the trial court may inquire into the reasonableness of the fee. Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982); Allen v. Burnett, 530 So.2d 1294 (La.App. 2d Cir.1988).

In this case, the court first considered the plaintiffs' suit against the defendants for the balance due on the promissory note, plus interest and attorney fees. Under the terms of the note, upon nonpayment of the installments when due, the balance of the note, plus interest and attorney fees, became immediately due and payable. At trial, the defendants admitted failing to make the installment payments which were due. Therefore, the trial court was correct in finding that the defendants owed the plaintiffs $14,619.26, the principal balance due on the note, plus interest.

However, the defendants contend that they should have been granted a reduction in the amount due on the note because of problems with the sale which they alleged in their suit for diminution of the sale price. As will be discussed hereafter, the trial court did find that the defendants were entitled to an award for damages. This damage award offset the amount owed by the defendants on the promissory note and is reflected in the final judgment. Nevertheless, this does not alter the fact that the promissory note was not paid pursuant to its terms and therefore the full balance became due upon demand. The amount of damages awarded by the court against the plaintiffs will be discussed below.

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Cite This Page — Counsel Stack

Bluebook (online)
565 So. 2d 502, 1990 WL 84447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karageorge-v-cole-lactapp-1990.