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Whitney Bank v. The Garden Gate New Orleans, L.L.C.

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

WHITNEY BANK
v.
THE GARDEN GATE NEW ORLEANS, L.L.C., GARDEN GATE GROWERS, L.L.C., CHAD EVERETT HARRIS; AND JACQUELINE KENDALL HARRIS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 763-059, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, WHITNEY BANK David F. Waguespack Andrew Brien.

          COUNSEL FOR DEFENDANT/APPELLANT, THE GARDEN GATE NEW ORLEANS, L.L.C., GARDEN GATE GROWERS, L.L.C., CHAD EVERETT HARRIS; AND JACQUELINE KENDALL HARRIS Jason M. Cerise Bradley C. Knapp Peyton C. Lambert.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

          JUDE G. GRAVOIS JUDGE.

         Defendants/appellants, The Garden Gate New Orleans, L.L.C. ("Garden Gate"), Garden Gate Growers, L.L.C. ("Growers"), Chad Everett Harris, and Jacqueline Kendall Harris, appeal the trial court's grant of summary judgment in favor of plaintiff/appellee, Whitney Bank ("Whitney"). For the reasons that follow, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On July 20, 2016, Whitney filed suit for breach of promissory notes and an overdrawn checking account against Garden Gate and Growers as principals, and Mr. and Mrs. Harris as guarantors. The petition alleged that Whitney was the holder and owner of the following:

1) a certain promissory note dated May 19, 2015 executed by Garden Gate in the original principal amount of $1,100,000.00 ("Note 1");
2) a certain promissory note dated March 8, 2012 executed by Garden Gate in the original principal amount of $200,000.00 ("Note 2");
3) a certain promissory note dated July 22, 2013 executed by Garden Gate in the original principal amount of $250,000.00 ("Note 3");
4) a certain overdrawn checking account in the name of Garden Gate; and
5) a certain promissory note dated November 21, 2014 executed by Growers in the original principal amount of $82,355.88 ("Note 4").

         Whitney alleged that defendants were justly, truly, and legally obligated and indebted to it for the outstanding principal sums due on the promissory notes, plus accrued interest, default interest, and late charges; the sum of the overdrawn account, plus interest, fees, charges, and other amounts as stated in the account agreement; and reasonable attorney's fees, all legal expenses and collection costs, and all costs of the proceeding.[1] The petition further alleged that the indebtednesses of Garden Gate and Growers were personally guaranteed by Mr. and Mrs. Harris pursuant to various Commercial Guaranties executed by them, respectively.[2]

         According to the petition, Note 1 matured and became fully due and payable on May 19, 2016. Regarding the remaining notes, Whitney exercised its option to accelerate the maturity dates thereon due to nonpayment. The petition asserted that Garden Gate failed to make the payments due on Note 2 on September 8, 2015, and each successive month thereafter; Garden Gate failed to make the payments due on Note 3 on September 22, 2015, and each successive month thereafter; and Growers failed to make the payments due on Note 4 on September 21, 2015, and each successive month thereafter, with the exception of a credit applied on March 1, 2016. Whitney further asserted that it notified Garden Gate, Growers, and Mr. and Mrs. Harris of the acceleration and payments due on the notes and the overdrawn account by letter, and that the remaining unpaid balances have never been paid in full and remained due and owing.

         Defendants requested and were granted an extension of time within which to answer the petition, and on September 23, 2016, they filed their answer and affirmative defenses. On October 4, 2016, Whitney filed a motion for summary judgment, supporting memorandum, statement of uncontested material facts, and supporting attachments, including the affidavit of Brian Berns, a Vice President of Whitney, and copies of the promissory notes, guaranties, and other loan documents. Whitney alleged that no genuine issue of material fact existed in this case and that it was entitled to judgment as a matter of law as prayed for in its petition. The attestations made by Mr. Berns in his affidavit included:

• that his duties included the handling of loan accounts of customers with defaulted loan relationships with Whitney, including the defaulted loan relationship of defendants;
• that in this capacity, he had access to all of the loan files and payment history records of defendants;
• that he had reviewed defendants' loan files and payment history prior to executing the affidavit;
• that based on his review of these documents, he had personal knowledge of the statements of fact made in his affidavit;
• that the notes became due and payable through maturity or acceleration of payments because of default in payments as stated in the petition;
• that defendants failed to pay the sums due and owing under the terms of the notes and the overdrawn account and otherwise defaulted in the performance ...

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