Whitney National Bank of New Orleans v. Smith

482 So. 2d 787, 1986 La. App. LEXIS 5931
CourtLouisiana Court of Appeal
DecidedJanuary 15, 1986
DocketNo. CA-3020
StatusPublished
Cited by3 cases

This text of 482 So. 2d 787 (Whitney National Bank of New Orleans 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
Whitney National Bank of New Orleans v. Smith, 482 So. 2d 787, 1986 La. App. LEXIS 5931 (La. Ct. App. 1986).

Opinions

GARRISON, Judge.

In this action to collect two promissory notes, defendant makers and guarantors appeal from a judgment in favor of the plaintiff bank on its main demand and from a judgment n.o.v. setting aside the jury’s award of damages in reconvention.

Whitney National Bank of New Orleans (hereinafter referred to as Whitney) filed suit against Thomas E. Smith, Jr., the defendant maker of a personal note in the principal sum of $144,500.00, and against GNO Holding Corporation (GNO), Smith’s company, the defendant maker of a second note in the principal sum of $318,000.00. The suit further named Smith, his wife Lita, and another Smith company, Equity Consultants of New Orleans, Ltd., as defendant guarantors of the second note and liable in solido with GNO.

In answer to Whitney’s petition, defendants alleged that the bank had fraudulently induced them to sign the notes, and guarantees by promising to lend defendants or their corporations an additional $500,000.00 and to forbear collecting interest on the $318,000.00 note. In a supplemental recon-ventional demand, defendants claimed that [789]*789Whitney had breached both of these promises and had also wrongfully refused to return guarantees by Smith and his father on an unrelated note by Smith’s former business, Key Travel Enterprises, Ltd. Defendants assert that Whitney’s failure to honor its promises had caused Smith to abandon his plans for a new business venture and thereby suffer damages in the form of lost profits and revenues. Defendants prayed for a jury trial on both the main and reconventional demands.

On Whitney’s motion, the trial judge struck defendants’ request for a trial by jury on the main demand, but granted a jury trial on the reconventional demand. After a panel of this court denied defendants’ application for writs from that trial judge’s order, the matter proceeded to a bifurcated trial.

Following a three day trial, judgment was rendered in favor of Whitney on the original demand for the balances due on both notes, plus interest and attorneys fees. In response to interrogatories on the reconventional demand, the jury concluded that the Whitney had not agreed to return the guarantees of Mr. & Mrs. Smith in connection with the unrelated debt of Key Travel Enterprises, Ltd. nor to make an additional loan commitment for $800,000.00 to GNO. The jury did conclude, however, that Whitney had breached an agreement with Smith and GNO to extend or forebear payment of the notes, and that GNO had suffered resulting damages in the amount of $750,000.00.

Alternative motions for a judgment notwithstanding the verdict or a new trial were filed. The trial judge denied defendants’ motions for a new trial, but granted Whitney’s motion for judgment n.o.v. reversing and setting aside the jury’s $750,-000.00 award. In oral reasons, the trial judge concluded the jury was clearly wrong in finding that Whitney had agreed to extend the notes or forebear collection.

Appealing, defendants contend the trial judge erred by: 1) refusing a jury trial to defendants on the main demand; 2) granting judgment N.O.V. in favor of Whitney where there was sufficient evidence for reasonable persons to find that plaintiff had breached its forebearance agreement; 3) refusing to allow proof of damages concerning Smith’s loss of franchising rights in a retail computer company; and 4) refusing to submit jury interrogatories on the issue of fraud. We find no merit to these contentions.

JURY TRIAL

The basis for Whitney’s motion to strike the defendants’ demand for a jury trial is LSA-C.C.P. Art. 1732(2), which provides that a jury trial shall not be available in a suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want or failure of consideration. Defendants contend, however, that they are entitled to a jury trial on all issues because there were well pleaded allegations of fraud in their original and supplemental answers and because the alleged obligations of the Smiths’ and Equity Consultants Ltd. are not unconditional promises to pay. We disagree.

Defendants’ arguments concerning the defense of fraud have already been raised in this court in their prior writ application from the trial court’s judgment striking the request for a jury trial on plaintiff’s main demand. In denying defendants’ application, the writ panel of this court stated: “We find no error in the ruling of the trial court.” The arguments raised in defendants’ appellate brief on the issue of fraud are essentially the same arguments earlier raised in the application for writ of review. Under these circumstances, we find no necessity to address further this aspect of defendants’ argument.

We likewise reject the contention that Whitney’s suit on the continuing guarantees entitle defendants to a jury trial. Because the guarantees bind the guarantors with the legal maker of the note, Whitney’s action against all defendants in soli-do remains a suit on an unconditional obligation to pay a specific sum of money, an [790]*790action for which a jury trial is not available.

JUDGMENT N.O.V.

We further find no error in the trial judge’s denial of defendants’ motion for a judgment n.o.v. and the granting of plaintiff’s motion.

In ruling on a motion for judgment notwithstanding the verdict, pursuant to LSA-C.C.P. Art. 1811, the trial judge must consider all the evidence and reasonable inferences in a light most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict, the motion should be granted and a judgment rendered notwithstanding the jury’s findings. On the other hand, if there is substantial evidence of such quantity and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions, the motion for judgment n.o.v. should be denied. The court should not weigh the evidence, pass on the credibility of the witnesses, or substitute its factual judgment for the jury’s, however. Blum v. New Orleans Public Service, Inc., 469 So.2d 1117 (La.App. 4th Cir.1985); Rogeau v. Commercial Union Ins. Co., 432 So.2d 1162 (La.App. 3rd Cir.1983), writ denied 437 So.2d 1149 (La.1983).

Applying this legal standard to the record in the instant case, we find no error in the trial court’s rulings on the motions for judgment n.o.v.

Key Travel Guarantees

Defendants’ motion for judgment n.o.v. takes issue with the jury’s verdict that Smith failed to prove by preponderance of the evidence that he and Whitney had mutually agreed to the return of the guarantees in the amount of $150,000.00 each given by Thomas E. Smith, Jr. and Lita Smith as security for the debt of their former business, Key Travel Enterprises, Ltd.

In 1975, the Smiths’ purchased the travel agency and borrowed money from Whitney. In connection with these business loans, Smith, his wife and his father signed continuing guarantees of Key’s indebtedness.

In 1979, Smith sold the travel agency to a third party, Arlen J. Krieger. According to Smith, Whitney had consented to the sale of the business and knew that the new purchaser, Krieger, was to replace the Smiths’ continuing guarantees as a condition of the sale.

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Bluebook (online)
482 So. 2d 787, 1986 La. App. LEXIS 5931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-national-bank-of-new-orleans-v-smith-lactapp-1986.