Shelley R. Brignac VS Tower Credit, Inc., Binning Bonding Company, L.L.C. and Stephen Binning Properties, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 1894 SHELLEY R BRIGNAC VERSUS z ff TOWER CREDIT INC AND BINNING BONDING COMPANY L AND STEPHEN BINNING C PROPERTIES L C Judgment Rendered September 21 2012 On Appeal from the 18th Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Trial Court No 38610 Honorable James J Best Judge Presiding David Band New Orleans LA Richard D Bankston Baton Rouge LA Attorney for Plaintiff Appellant Shelly R Brignac Attorney for Defendants Appellees Tower Credit Inc Binning Bonding Company L and Stephen Binning C Properties L C BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ l SSr r O HIGGINBOTHAM J Plaintiff Shelley R Brignac appeals the trial court granting of a motion s for summary judgment in favor of defendants Tower Credit Inc Binning Bonding Company LLC and Binning Properties LLC For the following reasons we affirm FACTS AND PROCEDURAL HISTORY In August 2008 as part of her divorce settlement Shelly R Brignac acquired her home located at 4464 Rebelle Lane in Port Allen Louisiana In order to pay her husband for his equity in the home she financed the property with American Thrift Finance Plan LLC doing business as State Farm Acceptance State Farm by executing a mortgage on the home The mortgage required monthly payments of 1 According to the petition after making about two 00 200 payments Brignac defaulted on her mortgage Upon Brignac default in January s 2009 State Farm assigned the loan to Tower Credit Inc Tower Credit After the transfer of the loan to Tower Credit Stephen Binning president of Tower Credit came to Brignac home to discuss her ability to s pay the note Shortly after foreclosure proceedings were initiated and a sheriff sale date was set for May 8 s 2009 Subsequent oral negotiations took place between Brignac and Binning and it was agreed that Binning would help Brignac lower her monthly note Ultimately a Cash Sale and Bond for Deed were executed before Deborah Berthelot notary public with the holder listed as Binning Bonding Company LLC Binning Bonding a holding company in which Stephen Binning is an officer In the cash sale Brignac sold her home to Binning Bonding for 165 000 with the Bond 00 for Deed allowing her to purchase it back for 636 per month until paid in full 66 sremaining balance on the bond for deed was 70 Brignac 81 943 2 On February 3 2010 Brignac was notified by Tower Credit that she was in default on the bond fordeed contract and if the arrears were not paid within 45 days the bond for deed would be cancelled in accordance with La R 9 S 2945 On March 23 2010 Binning cancelled the bond for deed and Brignac received a fiveday eviction notice on April 15 2010 On May 27 2010 Brignac filed suit in the 18th Judicial District Court for rescission of the contract and consequential damages alleging fraud under La C arts 3079 and 1953 as well as a claim under the Louisiana Unfair Trade Practices and Consumer Protection Law She named Tower Credit Inc Binning Properties LLC and Binning Bonding Company LLC as defendants Specifically Brignac alleges Binning misled her into believing he was helping her restructure her loan with Tower Credit when she was actually selling her home to Binning Bonding Stephen Binning executor of the cash sale and bond for deed was not personally named as a defendant in the matter However he has an interest in Tower Credit Inc Binning Bonding Company LLC and Binning Properties LLC all of which have been named as defendants On September 17 2010 the defendants filed a motion for summary judgment contending that there is no genuine issue of material fact and therefore s Brignac claims against defendants should be dismissed as a matter of law Brignac opposed the summary judgment relying on her affidavit and essentially arguing that there are genuine issues of material fact regarding whether her consent to the contract was vitiated by fraud and that discovery was not complete The matter was submitted on briefs in lieu of a hearing and was taken under advisement Louisiana Revised Statute 9 A provides 2945 If the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions the seller at his option may have the bond for deed cancelled by proper registry in the conveyance records provided he has first caused the escrow agent to serve notice upon the buyer by registered or certified mail return receipt requested at his last known address that unless payment is made as provided in the bond for deed within fortyfive days from the mailing date of the notice the bond for deed shall be cancelled 3 by the trial court In ajudgment signed on April 4 2012 the trial court granted the defendants motion for summary judgment It is from this judgment Brignac appeals citing the following assignments of error 1 The trial court improvidently granted summary judgment even though the posture of the case had raised serious disputed issues of both fact and law 2 The trial court granted a summary judgment although there was still outstanding discovery Plaintiff was attempting to take the depositions of the principals of the defendants companies but the court would not allow time for these discovery requests 3 The trial court took the matter under advisement for almost seven months despite the mandate of La C P Art 966 D that the judgment should be rendered within a reasonable time DISCUSSION Brignac contends that the trial court erred in granting defendants motion for summary judgment as there exists genuine issues of material fact It is her contention that the defendants specifically Stephen Binning in his capacity with Tower Credit told her he was restructuring her loan and not that his company Binning Bonding was purchasing her home In her affidavit Brignac stated had she known she was selling her home she would not have signed the contract and would have looked at other options An appellate court reviews a trial court decision to grant a motion for s summary judgment de novo using the same criteria that govern the trial court s consideration of whether summary judgment is appropriate Smith v Our Lady of the Lake Hosp Inc 93 2512 La 7 639 So 730 750 A motion for 94 5 2d summary judgment is a procedural device used to avoid a full scale trial when 2 Under Rule 212 of the Uniform Rules Courts of Appeal all specifications or assignments of 4 error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed This issue was not briefed therefore we consider it abandoned 4 there is no genuine issue of material fact West v Clarendon Nat lIns Co 99 1687 La App 1st Cir 7 767 So 877 879 The summary judgment 00 31 2d procedure is favored and is designed to secure the just speedy and inexpensive determination of every action La C art 966 Lee v Grimmer 99 P 2 A 2196 La App l st Cir 12 775 So 1223 1225 The motion should be 00 22 2d granted only if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 Perry v City of Bogalusa 00 2281 La P B App 1 st Cir 12 804 So 895 899 01 28 2d The movants in this case defendants have the burden of proof on the motion for summary judgment La C art 966 However because P 2 C defendants will not bear the burden of proof at trial their burden does not require them to negate all essential elements of Brignac claim but rather to point out to s the court that there is an absence of factual support for one or more elements essential to her claim Id If defendants meet this initial burden of proof the burden shifts to Brignac to produce factual support sufficient to establish that she will be able to meet her evidentiary burden at trial Id If Brignac fails to meet this burden there is no genuine issue of material fact and defendants are entitled to summary judgment La C art 966 P As provided in La C art 967 Brignac may not rest on the mere P B allegations of her pleading in response to a properly made and supported motion for summary judgment rather her response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial If she does not so respond summary judgment if appropriate shall be rendered against her La P C art 967 B M Material facts are those that potentially insure or preclude recovery affect the litigant success or determine the outcome of a legal dispute s Gatlin v Kleinheitz 20090828 La App 1st Cir 12 34 So 872 875 writ 09 23 3d denied 2010 0084 La 2 28 10 26 3d So 280 Because the applicable substantive law determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Lemann v Essen Lane Daiquiris Inc 2005 1095 La 3 923 So 627 06 10 2d 632 s Brignac claim is based on her contention that her consent to the cash sale and bond for deed was vitiated by fraud Consent may be vitiated by error fraud or duress La C art 1948 Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause inconvenience to the other C art 1953 fraud was a loss or Fraud may also result from silence or inaction La Fraud does not vitiate consent when the party against whom the directed could have ascertained the truth without difficulty inconvenience or special skill This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other assertions or s representations La C art 1954 Error induced by fraud need not concern the cause of the obligation to vitiate consent but it must concern a circumstance that has substantially influenced that consent La C art In pleading fraud 1955 the circumstances constituting fraud shall be alleged with particularity La P C art 856 However fJraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence La C art 1957 There are three basic elements to an action for fraud against a party to a contract 1 a misrepresentation suppression or omission of true information 2 the intent to obtain an unjust advantage or to cause loss or inconvenience to another and 3 the error induced by a fraudulent act must relate to a circumstance 2 substantially influencing the s victim consent to the contract Shelton v Standard700 Associates 2001 0587 La 10 798 So 60 64 01 16 2d Typically subjective facts such as intent motive malice knowledge or good faith are inappropriate for summary judgment determination Murphy s Lease Welding Serv Inc v Bayou Concessions Salvage Inc 780 So 2d 1284 1289 La App 3rd Cir 2001 writ denied 793 So 195 La 2001 2d However summary judgment can be accomplished when there is no issue of material fact concerning the alleged intent Carter v BRMAP 591 So 1184 2d 1189 La App 1 st Cir 1991 Defendants contend that there are no genuine issues of material fact remaining for trial and thus summary judgment is appropriate In support of the motion for summary judgment defendants attached the affidavits of Stephen Binning and Deborah Berthelot the credit sale and the bond for deed In his affidavit Binning stated that on at least two occasions prior to the execution of the cash sale he explained to Brignac that she would be transferring the property to Binning Bonding Deborah Berthelot the attorney who closed the cash sale and bond fordeed transaction at issue stated in her affidavit that she explained the nature of the transaction to Shelly R Brignac including the fact that the cash sale document transferred the subject property She further stated that Brignac was given an opportunity to read and ask questions about the documents In support of defendants positions they extensively cite to the case of Sonnier v Boudreaux 95 1227 La App 1st Cir 5 673 So 713 as it 96 10 2d presents similar facts to the case at bar The Sonnier case concerned an elderly man who developed an infatuation with a nineteen yearold girl Ms Boudreaux During the course of their relationship Mr Sonnier bought a vehicle for Ms Boudreaux to drive Paperwork was signed by both parties that specifically referred to Mr Sonnier as the lien holder of the vehicle The dispute arose when 7 upon the termination of the relationship Ms Boudreaux asserted her belief that the vehicle had been given to her as a gift Ms Boudreaux claimed she did not realize the content of the documents which she signed In holding in favor of Mr Sonnier the Court stated Although the law does not compel people to read or to inform themselves of the contents of instruments which they may choose to sign except in certain exceptional cases it holds them to the consequences in the same manner and to the same extent as though they had exercised those rights Ray v McLain 106 La 780 31 So 315 1901 Signatures to obligations are not mere ornaments and it is incumbent upon the party signing such obligation to examine it before signing it in ignorance of its contents Tweedel v Brasseaux 433 So 133 La 1983 To overcome the presumption of validity 2d the burden of proof is upon the party signing the obligation to establish with reasonable certainty that he or she has been deceived Id Sonnier v Boudreaux 673 So at 717 18 2d Assuming that Binning told Brignac that he was restructuring her loan it would have been easy for Brignac to read the unambiguous agreement which she signed and realize that she was selling her home to Binning Bonding The cash sale between Brignac and Binning Bonding is entitled at CASH SALE at the top and refers to Brignac as the SELLER and Binning Bonding as the PURCHASER It specifically provided that Brignac as seller sells and delivers unto Binning Bonding the property located at 4464 Rebelle Lane in Port Allen The Bond for Deed refers to the parties in the opposite with Binning Bonding as the SELLER and Brignac as the PURCHASER The Bond for Deed set forth that if and only if purchaser makes all payments prescribed in the documents the seller will convey the property back to her After careful review of the record in this case we find the truth could have been ascertained without difficulty inconvenience or special skill Brignac has not demonstrated that a relationship of confidence existed between the parties that would have reasonably induced her to rely on Binning s assertions or representation nor has she alleged particular facts sufficient to 8 overcome the clear language of the documents which she signed In reviewing the evidence presented by the defendants we find they met their burden of pointing out that Brignac would be unable to prove her consent to the contract was vitiated by fraud including specifically that she could not have ascertained the truth without difficulty Thus the burden shifted to Brignac to produce factual support sufficient to establish that she would be able to meet her evidentiary burden of proving fraud at trial In opposition to the motion for summary judgment Brignac provided three affidavits including her own In her affidavit Brignac says that Binning failed to inform her that he was no longer dealing with her in his capacity as President of Tower Credit and that he told her that he would restructure her loan when he intended to substitute a cash sale and bond for deed She stated she asked Binning a couple of questions and he told her that this was the way they had to do it to get her the loan It is Brignac contention that Binning withheld certain disclosure s documents in an attempt to keep her from understanding and possibly taking alternative action and that he has essentially stolen her property for payment of less than half of its value After review of the evidence presented in opposition to the motion for summary judgment we find Brignac provided no evidence to prove that she could not have ascertained the truth without difficulty or special skill thus there remain no genuine issues of material fact for trial and summary judgment was appropriate In Brignac second assignment of error she contends that the trial court did s not allow her adequate time to obtain her discovery requests namely the depositions of Binning and Berthelot The mere contention of an opponent that she lacks sufficient information to defend a motion for summary judgment because of s movant failure to comply with discovery is insufficient to defeat the motion Crocker v Levy 615 So 918 920 La App 1st Cir 1993 2d C However when the plaintiff alleges sufficient reasons why additional evidence to oppose the summary judgment motion could not be produced it is an abuse of discretion for the trial court to deny the plaintiff request for s a continuance Migliore v Kinsley 531 So 1091 1094 La App 4th Cir 1988 2d It is not an abuse of the district court wide discretion in discovery matters s to entertain a motion for summary judgment before discovery has been completed It is within the trial court discretion to render a summary judgment or require s further discovery Thomas v WillisKnighton Medical Center 43 La 176 App 2d Cir 4 981 So 807 814 writ denied 20081183 La 9 08 30 2d 08 19 992 So 932 2d While parties must have a fair opportunity to conduct discovery and present their claims there is no absolute right to delay action on a motion for summary judgment until discovery is complete Welch v East Baton Rouge Parish Metropolitan Council 20101532 La App 1st Cir 3 64 So 11 25 3d 249 254 Green v State Farm General Ins Co 35 La App 2d Cir 775 02 23 4 835 So 2 6 A suit should not be delayed pending discovery when it 2d appears at an early stage that there is no genuine issue of material fact and the plaintiff does not show a probable injustice in proceeding with the suit Welch 64 3d So at 254 Initially we note that Brignac did not file a motion for continuance or for additional discovery before the district court took defendants motion for summary judgment under advisement There was no evidence presented that Brignac had initiated any discovery that had not been answered Brignac did attach to her opposition to summary judgment a letter to defendants attorney requesting depositions of Ms Berthelot and Mr Binning as well as the attorney response s stating when they would be available Their availability was after the due date given by the court for Brignac summary judgment memorandum however there s was nothing in the record to indicate she requested more time from the court in 1101 order to complete discovery or did anything further to attempt to take the requested depositions Further the letter requesting the depositions was dated three months after the motion for summary judgment was filed Thus we find Brignac was given a fair opportunity to present her case Under these circumstances the district court did not abuse its discretion in proceeding with the motion for summary judgment based on the pleadings documents and affidavits in the record CONCLUSION In summary we find that defendants met their burden of pointing out that Brignac could not show that she was unable to ascertain the truth without difficulty inconvenience or special skill Brignac failed to submit proof that she would be able to meet her evidentiary burden of proving fraud Therefore defendants are entitled to summary judgment as a matter of law Accordingly we affirm the judgment of the trial court plaintiffappellant Shelley Brignac AFFIRMED 11 All costs of the appeal are assessed to
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