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Ory v. Russell

Court of Appeals of Louisiana, First Circuit

November 12, 2019

TREVAA. ORY
v.
LEE M. RUSSELL, AMANDA N. RUSSELL, AND VERSATILE FAB, LLC

          On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court Number 643375 Honorable Donald R. Johnson, Judge Presiding

          Floyd J. Falcon, Jr. Baton Rouge, Louisiana Attorney for Plaintiff/ Treva A. Ory

          Brian J. Prendergast Baton Rouge, Louisiana Attorney for Defendant/Appellee, Amanda N. Russell

          Lee M. Russell Zachary, Louisiana Defendant/Appellee In Proper Person

          BEFORE: GUIDRY, HIGGINBOTHAM, THERIOT, CHUTZ, AND PENZATO, JJ.

          GUIDRY, J.

         Plaintiff, Treva A. Ory, appeals a judgment in favor of defendant, Amanda N. Russell, denying and dismissing her claims. For the reasons set forth below, we affirm in part, reverse in part, and render.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Treva Ory is the mother of Lee Russell. Lee Russell married Amanda Russell on July 7, 2007. In January 2008, the Russells acquired 12.7 acres of land for the purpose of building a home. The property was encumbered with a mortgage. Ms. Ory offered to loan the Russells the funds to build the house and pay off the existing mortgage. Upon completion of the home, the Russells secured a mortgage on the home and re-paid Ms. Ory a portion of the money that they had borrowed from her. Amanda Russell filed for divorce on February 28, 2014, and the couple divorced in 2015.

         Lee Russell is the sole member of Versatile Fab, LLC ("Versatile Fab"), which was formed in September 2006, prior to his marriage to Amanda Russell. The parties agree that Versatile Fab is Lee Russell's separate property. Versatile Fab is a limited liability company with its own bank account. In addition to the funds that Ms. Ory testified were loaned for the construction of the home, during the same time period, Ms. Ory loaned money to Versatile Fab for the purchase of a tractor, a truck, and other expenses.

         On October 27, 2015, Ms. Ory filed suit for the balance of the funds loaned to the Russells and Versatile Fab. In her petition, Ms. Ory alleged that the balance due from the Russells in connection with the construction of their family home was $101, 631.57 and that the Russells had continuously acknowledged that the balance was due and payable. The petition alleged that the balance due from Versatile Fab was $97, 400.00 and that during his marriage, Lee Russell personally guaranteed the debt.

         Amanda Russell answered the petition, asserting that the balance due on the construction loan was $41, 631.50. She further averred that the petition did not state a cause of action against her with regard to the loan to Versatile Fab as she is not a member of the limited liability company. Lee Russell, personally and on behalf of Versatile Fab, admitted the allegations of the petition.

         A bench trial was held on September 7, 2017, and February 2, 2018. In his opening remarks, counsel for Amanda Russell argued that more than three years had passed since any repayment of the construction loan, and therefore, the action was prescribed pursuant to La. C.C. art. 3494.[1] Following the conclusion of Ms. Ory's case, counsel for Amanda Russell moved for an involuntary dismissal, [2]again arguing that Ms. Ory's action for the balance of $101, 631.57 due on the construction loan was prescribed and that Ms. Ory failed to prove that prescription was interrupted as to Amanda Russell. The trial court took the motion for involuntary dismissal under advisement, and Amanda Russell proceeded with her defense. At the conclusion of the testimony, the trial court took the entire matter under advisement, and on March 8, 2018, signed a judgment that provided as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that, in light of this Court's finding that Versatile Fab, LLC is the separate property of Defendant, Lee M. Russell, there be Judgment in favor of Plaintiff, Treva A. Ory, and against Defendant, Versatile Fab, LLC, and Defendant, Lee M. Russell, in solido, in the full and true sum of Ninety-Seven Thousand Four Hundred ($97, 400.00) Dollars, together with legal interest from date of judicial demand until paid.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that there be Judgment in favor of Defendant, Amanda N. Russell, denying and dismissing the claims of Treva A. Ory, pursuant to LSA-C.C.P. Art. 1672. This Court finds that Plaintiff's cause of action against Defendant, Amanda N. Russell has prescribed and that Plaintiff has not carried her burden of proof to show that there has been acknowledgment of the debt of One Hundred and One Thousand Six Hundred Thirty-One ...

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