Mobile-One Auto Sound, Inc. v. Whitney National Bank

78 So. 3d 807, 2011 La.App. 4 Cir. 0535, 2011 La. App. LEXIS 1349, 2011 WL 5386624
CourtLouisiana Court of Appeal
DecidedNovember 9, 2011
DocketNo. 2011-CA-0535
StatusPublished
Cited by4 cases

This text of 78 So. 3d 807 (Mobile-One Auto Sound, Inc. v. Whitney National Bank) 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
Mobile-One Auto Sound, Inc. v. Whitney National Bank, 78 So. 3d 807, 2011 La.App. 4 Cir. 0535, 2011 La. App. LEXIS 1349, 2011 WL 5386624 (La. Ct. App. 2011).

Opinions

CHARLES R. JONES, Judge.

BThe appellant, Mobile One Auto Sound, Inc. (Mobile One), appeals an adverse judgment of the district court granting the peremptory exception of no cause of action of Whitney National Bank, Mr. Gary Lo-rio, Mr. Harlan Bush, and Mr. Bill Jolly, the named appellees. After a careful re[809]*809view of the record, we affirm the judgment of the district court.

Mobile One and Whitney entered into a Commercial Business Loan Agreement for Lines of Credit on December 31, 1997. Whitney and Mobile One, on several occasions over the years, mutually agreed to renew or replace the original loan with new loans.

Beginning in 2008, the line of credit of Mobile One was reduced on more than one occasion by Whitney. Mobile One averred that the reduction in the line of credit had a severe effect on its ability to borrow against the line of credit and its ability to conduct business activities.

The subject promissory note matured in May 2009, and the parties executed an allonge to extend the promissory note until June 30, 2009. Mobile One, [¡.however, did not pay the promissory note on June 30, 2009; rather, Mobile One made principal reduction payments and interest payments in July of 2009.

At the end of July of 2009, Mr. Paul Campo, the President of Mobile One, met with Mr. Gary Lorio, a Vice President of Whitney. At the meeting, Mr. Lorio informed Mr. Campo that additional collateral was needed in order for an additional extension of the promissory note to be granted. Mr. Lorio advised Mr. Campo that either the home of Mr. Campo or a payment of $150,000 would be required to extend the promissory note. Mr. Lorio also inquired of Mr. Campo whether a payment would be made. Mr. Campo asked if a $100,000 payment would suffice to make the account current. Mr. Lorio advised Mr. Campo that he would check into the matter and get back to him, but Mr. Lorio also advised Mr. Campo that if additional collateral was not received, that the Mobile One account would be referred to the Special Assets department.

By August of 2009, the Mobile One account had been referred to the “special assets” division of Whitney and assigned to Mr. Bill Jolly, a Vice-President at Whitney.

Mr. Campo then received a phone call from Mr. Harlan Bush, also a Vice President at Whitney. Mr. Bush mentioned to Mr. Campo that he noticed a large number of deposits in the operating account, and further inquired whether Mobile One intended to make a payment on the line of credit. Mr. Campo indicated that the monies contained in the account were earmarked for payments to floor plan creditors. Mr. Bush indicated that the account could be referred to the “special assets” division of Whitney.

13Mr. Jolly contacted Mr. Campo indicating that he had been assigned the account and that he wanted to meet with Mr. Cam-po to discuss the account. On August 14, 2009, Mr. Jolly met with Mr. Campo and informed him that Whitney had withdrawn $600,000 from the Mobile One operating account and applied it to the outstanding loan- balance. Mr. Jolly also handed Mr. Campo a letter indicating same. Also, at the meeting, Mr. Jolly indicated that the zero balance checking account (“ZBA account”) at Wachovia Bank, which was used as a clearinghouse account by Mobile One, had been closed by Whitney.

Mobile One had just issued a check to its floor plan creditors for payment, in addition to payroll checks. However, contemporaneously with the withdrawal of the $600,000 from Mobile One’s operating account, Whitney closed the ZBA account. Mobile One was not able to raise funds to cover the checks it had issued. Mobile One subsequently ceased its business relationship with Whitney.

Mobile One filed a Petition for Damages and Breach of Contract on August 12, 2010. In response, Whitney, Mr. Lorio, [810]*810Mr. Bush, and Mr. Jolly collectively filed an exception of no cause of action.

At the hearing on the exception, the district court sustained the exception and dismissed the Petition for damages and breach of contract of Mobile One, with prejudice. This timely appeal followed.

In its sole assignment of error, Mobile One argues that the district court erred by sustaining the exception of no cause of action of Whitney, thereby dismissing the Petition of Mobile One with prejudice.

\ .DISCUSSION

In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New Orleans v. Bd. Of Com’rs of Orleans Levee District, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Wright v. Louisiana Power & Light, 2006-1181, p. 15 (La.3/9/07), 951 So.2d 1058, 1069, citing Ramey v. DeCaire, 03-1299, p. 8 (La.3/19/04), 869 So.2d 114, 118-19. Furthermore, “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ. Proc. art. 931.

Mobile One argues that in order for Whitney to pursue any default remedies available to them, Whitney had a contractual and/or statutory duty to give Mobile One notice of any such default; or rather, Whitney was required to “put” Mobile One in default. Mobile One argues that the mere existence of an “event” of default did not place it in default. Mobile One further argues that a declaration of default was exclusively the option of Whitney as is reflected in the applicable terms of the contracts and agreements between the parties.

Mobile One further argues that the “event of default” at the heart of this dispute was its failure to make the payment due on June 30, 2009, as required in the allonge dated May 28, 2009. While Mobile One agrees that there are default |sprovisions throughout the various agreements and promissory notes that comprise the contract at issue, it maintains that in order to properly determine whether Whitney had a duty to give formal notice of default, one must look to the controlling agreements.

In particular, Mobile One argues that the master agreement defines default but does not specify procedures, rights or remedies that could result from any such default; rather, it directs the reader to the loan document. Mobile One argues that there is no mention anywhere in the master agreement of any express waiver of rights by any party. Mobile One argues that Paragraph G of the agreement, entitled Miscellaneous Provisions, reads: “No condition or other term of this Agreement may be waived or modified except by a writing signed by Borrower and Whitney.” Mobile One argues, however, that the promissory note contains different procedures for certain aspects of default, and that some provisions required that Whitney “put” Mobile One in default, for example:

INTEREST AFTER DEFAULT: If Lender declares this Note to be in default, Lender has the right prospectively to adjust and fix the simple interest rate under this Note until this Note is paid in full ... (emphasis added).

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78 So. 3d 807, 2011 La.App. 4 Cir. 0535, 2011 La. App. LEXIS 1349, 2011 WL 5386624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobile-one-auto-sound-inc-v-whitney-national-bank-lactapp-2011.