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THE CADLE COMPANY VERSUS HARRY S. ANDERSON

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NO. 2009-CA-0068

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-12301, DIVISION "K-5" Honorable Herbert Cade, Judge ****** CHIEF JUDGE JOAN BERNARD ARMSTRONG ****** (Court composed of Chief Judge Joan Bernard Armstrong, Judge James F. McKay, III and Judge Max N. Tobias, Jr.)

MARK C. LANDRY NEWMAN MATHIS BRADY & SPEDALE, APLC 212 VETERANS BOULEVARD SUITE 100 METAIRIE, LA 70005

COUNSEL FOR THE CADLE COMPANY

ELIZABETH A. ROUSSEL PHILIP A. FRANCO ADAMS AND REESE LLP 701 POYDRAS STREET 4500 ONE SHELL SQUARE NEW ORLEANS, LA 70139

COUNSEL FOR DEFENDANT, HARRY S. ANDERSON VACATED AND RENDERED.

The defendant-appellee, Harry S. Anderson, appeals a judgment of November 7, 2008, denying his motion for summary judgment and granting the motion for summary judgment of the plaintiff-appellee, The Cadle Company, condemning him to pay to The Cadle Company $79,250.00, together with costs and interest from the date of judicial demand. The parties agree that there are no genuine issues of material fact and the case turns entirely on questions of law. On February 17, 1990, Harry S. Anderson, A Professional Law Corporation ("the PLC"), executed a Promissory Note in favor of Hibernia National Bank pursuant to which the bank loaned the PLC the sum of $79,250.00. Mr. Anderson executed a personal standard form Commercial Guaranty of the Note which made provision for future advances, but none were ever made. Mr. Anderson's personal liability under the Guaranty was limited by its express terms to the sum of $79,250.00, the amount of the Note. Hibernia sued only the PLC when the Note matured on February 17, 1991 and obtained a default judgment against the PLC on September 29, 1993 in the principal amount of $78,150.00, together with interest, attorney fees, and costs.

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Mr. Anderson was not personally named or served in the default judgment. Hibernia assigned the default judgment to The Cadle Company on November 6, 1996. It was not until November 2, 2005, over 12 years after Hibernia obtained the default judgment and over 14 years after the note matured that The Cadle Company filed suit against Mr. Anderson. Mr. Anderson filed an exception of prescription which was overruled on June 6, 2008. The parties then filed cross motions for summary judgment, agreeing that there were no genuine issues of material fact, but disagreeing on the law. Although The Cadle Company's original petition demanded a much larger sum, The Cadle Company conceded that, under the terms of the Guaranty, Mr. Anderson maximum principal exposure was $79,250.00. The Guaranty provides that: The amount of this Guaranty Is Seventy Nine Thousand Two Hundred Fifty & 00/100 Dollars ($79,250.00). . . . The Guaranty also contained additional language limiting recovery under it to: U.S. $79,250.00, including principal, interest, cost, expenses and attorneys' fees.

The Guarantor, Mr. Anderson, guaranteed "all of Borrower's present and future Indebtedness in favor of Lender. . ." The Guaranty further provides that Mr. Anderson's obligation thereunder is solidary. Although the trial court ruled against Mr. Anderson on his exception of prescription and he says that he is appealing the denial of his motion for summary

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judgment and not the denial of his exception of prescription, both parties argue that prescription is the only critical issue in the case. We agree with the assertion made on page three of The Cadle Company's brief that: However, the only issue in the case is whether the claim against Mr. Anderson has prescribed. Mr. Anderson does not argue that Hibernia was required to join him in the suit against the PLC on the Note. We have found no such requirement in the law. We noted above, under the terms of the Guaranty, Mr. Anderson is a "solidary surety" and as such his position before the law may be less favorable than that of a simple surety. Louisiana Bank and Trust Company, Crowley v. Boutte, 309 So.2d 274, 279-280 (La.1975). The Cadle Company argues that this court should affirm the trial court and apply the prescription applicable to the judgment which may be reinscribed every ten years ad infinitum under La. C.C. art. 3501. Mr. Anderson argues that he is entitled to the same prescription as that of the Note sued upon, in which case the claim against him would have prescribed. Apparently, the Note provided for an original interest rate of 5

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