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Biloxi Capital, LLC v. Lobell

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

BILOXI CAPITAL, LLC
v.
KENNETH H. LOBELL

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 763-212, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, BILOXI CAPITAL, LLC Jean-Paul Layrisson Krista M. Eleew

          COUNSEL FOR DEFENDANT/APPELLANT, KENNETH H. LOBELL Matthew L. Pepper

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

          WICKER, J.

         In this appeal, appellant-defendant seeks review only of the trial court's interlocutory judgment overruling his declinatory exceptions of improper venue and jurisdiction, alleging ambiguity in the forum selection clause in a Loan and Security Agreement between the parties. For the reasons discussed below, we decline to address defendant's assignments of error related to the trial court's November 23, 2016 judgment on his declinatory exceptions.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 27, 2016, plaintiff, Biloxi Capital, L.L.C., filed suit in the 24thJudicial District Court for the Parish of Jefferson against defendant, Keith Lobell, to collect on a one-million dollar promissory note. Plaintiff attached to its petition the July 19, 2006 promissory note, pledge agreement, and "Loan and Security Agreement" executed between the parties. In its petition, plaintiff contended that, in accordance with the terms of the Loan and Security Agreement, Jefferson Parish is the proper venue for suit against defendant. Defendant thereafter filed a pleading titled, "Declinatory Exception of Improper Venue, Lack of Subject Matter Jurisdiction over the Person, and Lack of Subject Matter Jurisdiction, " contending that the forum selection clause at issue, which provides that defendant agrees to submit himself to the "nonexclusive jurisdiction of the Supreme Court of the State of Louisiana sitting in Jefferson Parish, " is vague and ambiguous and, thus, is unenforceable.

         On October 12, 2016, the trial court conducted a hearing on defendant's exceptions. On November 2, 2016, the trial court issued a judgment denying defendant's exceptions. Defendant filed a notice of intent to apply for a supervisory writ and the trial court set a December 2, 2016 return date. However, defendant did not file a supervisory writ application with this Court and the matter proceeded in the 24th Judicial District Court. [1] On December 15, 2016, defendant filed an Answer to the petition, generally denying all allegations in the petition.

         On January 3, 2017, plaintiff filed a motion for summary judgment. In support of its motion, plaintiff attached the July 19, 2006 promissory note, pledge agreement, and the Loan and Security Agreement. Plaintiff also attached the affidavit of H. Hunter "Terry" White, III, a manager with Biloxi Capital, LLC, who attested that the principal and interest due on the loan was $2, 049, 998.00. He further attested that Biloxi Capital incurred $12, 393.97 in costs and attorney fees in connection with the suit to collect on the promissory note. Plaintiff sought summary judgment in the amount of $2, 049, 998.00 in unpaid principal and interest on the loan, as well as $12, 393.97 in attorney fees and related litigation expenses.

         Defendant filed an opposition to the motion for summary judgment. In his opposition, defendant claimed that he owned a 25% interest in Biloxi Capital and that the loan at issue arose from an oral agreement between the parties to develop a waterfront resort and casino in Biloxi, Mississippi. In support of his opposition to the motion for summary judgment, defendant attached his affidavit, wherein he attested that the parties agreed that Biloxi Capital would purchase waterfront properties valued at $38, 000, 000.00 and that defendant would do the "leg work" to pursue a change in zoning to allow the property to be developed as a waterfront casino or resort. Defendant attested that his obligation to repay the loan was conditioned upon Biloxi Capital developing the property, which he contends it never did. He further attested that the parties agreed that repayment of the loan would be made through the equity in the waterfront properties. Biloxi Capital responded to defendant's opposition, asserting that an oral agreement cannot supersede a written credit agreement under La. R.S. 6:1122 and La. R.S. 6:1122.1.[2]

         The trial judge conducted a hearing on April 12, 2017, and issued a written judgment on April 25, 2017, granting Biloxi Capital's motion for summary judgment and ordering defendant to pay Biloxi Capital $2, 078, 629.39, together with attorney fees and costs in the amount of $12, 393.97. Defendant filed a motion to appeal the April 25, 2017 judgment, which the trial court granted on June 28, 2017.[3]

         DISCUSSION

         Although defendant appealed the trial court's April 25, 2017 granting of summary judgment, defendant's appellate brief filed with this Court assigns as error only the trial court's November 2, 2016 denial of his preliminary declinatory exceptions. In his appellate brief, defendant assigns the following errors: (1) did the trial court err by exercising jurisdiction in Jefferson Parish where the forum selection clause in the Loan and Security Agreement was clearly ambiguous on its face thus making it impossible to determine the intent of the parties?; and (2) is it legal error to continue to adjudicate a matter wherein the Court has improper venue/jurisdiction over the defendant as the result of an ambiguous forum selection clause? In brief to this Court, defendant, essentially, contends that the forum selection clause within the Loan and Security Agreement is vague or ambiguous on its face and, "without the forum selection clause there is no proper venue/jurisdiction over the ...


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