Wood v. Omni Bancshares, Inc.

69 So. 3d 475, 10 La.App. 5 Cir. 216, 2011 La. App. LEXIS 486, 2011 WL 1565903
CourtLouisiana Court of Appeal
DecidedApril 26, 2011
DocketNo. 10-CA-216 C/W, 10-CA-567
StatusPublished
Cited by11 cases

This text of 69 So. 3d 475 (Wood v. Omni Bancshares, Inc.) 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
Wood v. Omni Bancshares, Inc., 69 So. 3d 475, 10 La.App. 5 Cir. 216, 2011 La. App. LEXIS 486, 2011 WL 1565903 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

[¡.In these consolidated cases, the original plaintiff/appellant and third-party plaintiff/third-party appellant appeal the trial court’s granting of peremptory exceptions of no cause of action. The appeal arises from a petition filed by plaintiff/appellant, Adrienne Wood, against defendants/appellees, Omni Bank (Omni) and Mr. Tom Tappan, Omni Bank’s employee. Adrienne Wood seeks to recover insurance proceeds which she alleges she lost as a result of Omni, through Mr. Tappan, breaching their alleged oral agreement to deposit the proceeds into specified accounts at Omni Bank. Omni and Mr. Tap-pan seek to recover the disputed insurance proceeds from Glen Wood and Woody’s Collision Specialists, LLC., if they are found liable to Adrienne Wood. For the reasons that follow, the judgments appealed from are reversed, and the case is remanded for further proceedings.

| sFacts and Procedural History

During the course of their marriage, plaintiff/appellant, Adrienne Wood, and third-party defendant/third-party appellee, Glen Wood, allegedly operated two businesses — Woody’s Collision Specialists, LLC (“Woody’s”), and Woody’s Mechanical Maintenance and Repair, LLC. On October 17, 2002, Glen Wood and Adrienne Wood executed a promissory note bearing number 2608 in Omni’s favor in the amount of $400,000. The loan was secured by a collateral mortgage which covered immovable property located at 17 27th Street in Kenner, Louisiana — the location of Woody’s. The collateral mortgage required the Woods to continuously maintain insurance on the property. The parties contend that the property was insured by United Fire Group (UFG) and that Omni was listed as the loss payee.

When the Woods executed the promissory note, they also executed a Limited Liability Company Authorization Resolution which authorized either Adrienne Wood or Glen Wood to individually exercise all power over Woody’s commercial checking account ending in number 8874. However, on December 13, 2005, unbeknownst to Adrienne Wood, Glen Wood executed a new authorization resolution which removed her from that account. Shortly after learning this, Adrienne Wood filed for divorce and informed Omni of the divorce proceedings.

Thereafter, Adrienne Wood, Glen Wood, and Mr. Tappan executed another authorization resolution on May 19, 2006, which required their three signatures collectively to transact business on newly opened account 6508. Adrienne Wood alleges that she had an oral agreement with Mr. Tap-pan that insurance proceeds from UFG would be deposited into that account or into escrow account 4132 on which Nancy Rowland was the only authorized signatory. UFG issued three ^insurance checks totaling $181,686.48,1 which were deposited into account 6508 in accordance with the alleged oral agreement.

UFG issued another check on December 28, 2006 in the amount of $49,327.02 which was deposited in Woody’s commercial account number 3374 on January 8, 2007, in contravention of the alleged oral agreement. Then on March 19, 2007, UFG [478]*478issued another check in the amount of $35,927.28 which was likewise deposited in Woody’s commercial account number 3374 on March 26, 2007. Each check was stamped “WITHOUT RECOURSE.” Those funds were subsequently transferred by Glen Wood into his personal account number 8314.

Adrienne Wood wrote a letter to Mr. James Hudson, Omni’s president, and requested the banking records of both Glen Wood and Woody’s. He responded that she was not Omni’s customer on account 3374; and he was therefore prohibited from releasing any information to her regarding that account.

On July 9, 2008, Adrienne Wood filed a petition for damages in the 24th Judicial District Court against Omni and Mr. Tap-pan for breach of contract. In her petition, she alleged that the bank breached the written and oral agreements between the parties to deposit insurance proceeds in account 6508 or account 4132. Omni and Mr. Tappan answered the petition, raised various affirmative defenses, and made a third-party demand against Glen Wood and Woody’s.

The defendants in the principal action filed peremptory exceptions of no right of action, no cause of action, and prescription on November 13, 2008. The trial court found that Adrienne Wood had a claim in contract subject to a 10 year prescriptive period and overruled the exceptions. That judgment was rendered on February 11, 2009.

|fiThe third-party defendants also filed an exception of no cause of action with respect to the third-party demand filed against them. That matter was heard on September 8, 2009. The court sustained that exception and dismissed Glen Wood and Woody’s from the suit. That judgment was rendered on September 21, 2009.

During the September 8th hearing, however, the court discovered that the Woods had entered into a consent judgment whereby Adrienne Wood was paid the current enhanced value of the repaired property. The court was unaware of the consent judgment when it overruled Omni’s exception of no cause of action against Adrienne Wood. Upon learning this, the court stated its willingness to reconsider Omni’s exception of no cause of action against her. On January 22, 2010, Omni filed its second peremptory exception of no cause of action. That exception was sustained on April 28, 2010. Both Adrienne Wood and Omni/Mr. Tappan have appealed.

Assignments of Error

Adrienne Wood contends that the trial court erred in reconsidering Omni’s peremptory exception of no cause of action which was based on extraneous evidence, namely the consent judgment, when its first ruling should have been construed as the law of the case. She also contends that the trial court erred in finding that her petition failed to state a cause of action.

Omni, as third-party plaintiff, contends that the trial court erred in sustaining Glen Wood and Woody’s peremptory exception of no cause of action which effectively dismissed them from the litigation.

Discussion

Adrienne Wood’s First Assignment of Error

In her first assignment of error, Adrienne Wood contends that the trial court erred when it reconsidered Omni’s second peremptory exception of no cause of |fiaction when it had previously overruled the exception. She further argues that the court’s prior ruling should have been construed as the law of the case.

[479]*479The peremptory exception of no cause of action may be pleaded at any stage of the proceedings in the trial court prior to a submission of the case for a decision. La. C.C.P. art. 928(B).

“The overruling of a peremptory exception is merely an interlocutory order, and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception, upon finding that it erred in overruling it.” Louisiana State Bar Ass’n v. Carr and Assocs., Inc., 08-2114, p. 6 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 164.

During the September 8th hearing on Glen Wood and Woody’s exception of no cause of action, both the trial court and Omni learned that pursuant to a consent judgment, Adrienne Wood was paid the current enhanced value of the repaired property and that Glen Wood assumed 100 percent of the mortgage. Upon learning this, the trial court stated its willingness to reconsider Omni’s exception of no cause of action in regards to Adrienne Wood. Thereafter, Omni filed its second exception.

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Cite This Page — Counsel Stack

Bluebook (online)
69 So. 3d 475, 10 La.App. 5 Cir. 216, 2011 La. App. LEXIS 486, 2011 WL 1565903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-omni-bancshares-inc-lactapp-2011.