Opinion
NO. 20-CA-189
12-30-2020
HACIENDA HOLDING COMPANY, L.L.C., Ramon Ramos, Mary Ann Benoit Ramos, Hacienda Construction, Inc., and Hacienda Builders, Inc. v. HOME BANK
COUNSEL FOR PLAINTIFF/APPELLANT, HACIENDA HOLDING COMPANY, L.L.C., RAMON RAMOS, MARY ANN BENOIT RAMOS, HACIENDA CONSTRUCTION, INC., AND HACIENDA BUILDERS, INC. Pedro F. Galeas COUNSEL FOR DEFENDANT/APPELLEE, HOME BANK Patrick K. Reso John D. Miranda
COUNSEL FOR PLAINTIFF/APPELLANT, HACIENDA HOLDING COMPANY, L.L.C., RAMON RAMOS, MARY ANN BENOIT RAMOS, HACIENDA CONSTRUCTION, INC., AND HACIENDA BUILDERS, INC. Pedro F. Galeas
COUNSEL FOR DEFENDANT/APPELLEE, HOME BANK Patrick K. Reso John D. Miranda
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
WICKER, J. Plaintiffs, Hacienda Holding Company, LLC., Ramon Ramos, Mary Ann Benoit Ramos, Hacienda Construction, Inc., and Hacienda Builders, Inc., appeal from a February 10, 2020 grant of summary judgment in favor of Home Bank. For the following reasons, we affirm the district court's judgment dismissing Plaintiffs’ claims with prejudice.
PROCEDURAL HISTORY AND FACTS
On July 25, 2013, Plaintiffs, Hacienda Holding Company, LLC. ("Hacienda"), Ramon Ramos, Mary Ann Benoit Ramos, Hacienda Construction, Inc., and Hacienda Builders, Inc. filed a petition in the Twenty Fourth Judicial District Court against Home Bank alleging, generally, that, during the course of ongoing negotiations to renew or refinance its loans with Hacienda, Home Bank tortiously interfered with Hacienda's business relationships with its purchasers; released Hacienda's confidential loan information to third parties; breached its contract with Hacienda; committed fraud through misrepresentations and suppressed the truth regarding the status of Hacienda's loans; and negligently misrepresented the loans’ status by concealing the seizure of the property, all in violation of its duty of good faith, causing damage to Hacienda and the other Plaintiffs.
In the petition, Plaintiffs alleged that, on August 26, 2008, Hacienda borrowed $70,000.00 from Statewide Bank, which was secured by a Multiple Indebtedness Mortgage and the personal guarantees of Mr. and Mrs. Ramos, as well as Hacienda Construction, and that, on December 16, 2010, Hacienda subsequently borrowed an additional $1,020,680.00 from Home Bank, Statewide's successor, which was also secured by a multiple indebtedness mortgage and the guarantees of Mr. and Mrs. Ramos and Hacienda Construction, Inc.
Specific to their claim of Home Bank's tortious interference with Hacienda's business relationships, at paragraph twenty-five of their petition, Plaintiffs alleged that, "In failing to release certain lots in breach of its written agreements with LLC, Home Bank tortuously [sic] interfered with the business relationships of LLC. with its purchasers, causing loss of sales and resultant damages to LLC, Ramos and Corp." Regarding their allegation of improper disclosure of confidential information, at petition paragraph twenty-eight Plaintiffs alleged that, "Upon information and belief, Home Bank released confidential information about the loans with LLC. to third parties." Plaintiffs attached over forty unauthenticated emails to their petition, which were purported to have been transmitted among bank representatives, an independent banking consultant, and Plaintiffs, between December, 2011 and late February, 2013, that reflected an ongoing loan renewal or extension negotiations. Plaintiffs asserted that the emails reflected a March 1, 2012 agreement between Home Bank and Hacienda as to refinancing which, according to Plaintiffs, Home Bank breached. On September 10, 2013, Home Bank filed an exception of no cause of action arguing in part that Plaintiffs’ petition and attached emails did not evidence an agreement that complied with the mandatory conditions of La. R.S. 6:1122, the Credit Agreement Statute, as alleged by Plaintiffs. Plaintiffs filed their Opposition on October 10, 2013. The trial court heard the exception on November 7, 2013, taking the matter under advisement. On November 8, 2013, the trial court issued its judgment, granting Home Bank's exception in part, thereby dismissing Plaintiffs’ claims for breach of a written credit agreement, breach of contract, detrimental reliance, fraud, negligent misrepresentation, and bad faith. The exception, however, was denied as to Plaintiffs claims for tortious interference with business relationships and unlawful disclosure of financial information. On December 18, 2013, the trial court issued reasons for judgment. Plaintiffs sought no supervisory relief from the trial court's judgment. On November 26, 2013, Home Bank answered the petition denying Plaintiffs’ remaining claims and raising affirmative defenses of comparative fault, failure to mitigate, third-party fault for which Home Bank was not liable, and failure to state a claim upon which relief may be granted.
Paragraph twenty-four of Plaintiffs’ petition asserted, "The various emails by Home Bank constitute written agreements pursuant to La. R.S. 6:1121 et seq. "
Specifically, Paragraph 8 of Plaintiffs’ petition asserts that "[o]n or about March 1, 2012, Ramon Ramos for LLC sent an email to Mike Heffner requesting a status on the refinancing, and Heffner responded, via email: ‘everything is approved, including specs. Just need to make sure property taxes are paid.’ Later that day, Ramos advised that the check for taxes had been processed." And, in Paragraph 12 of their petition, Plaintiffs’ alleged that "[o]n April 25, 2012, LLC emailed to Heffner that, once again, the terms of the renewal were now totally different from agreement reached by March 1, 2012."
On September 18, 2019, Home Bank filed a Motion for Summary Judgment seeking to dismiss Plaintiffs’ remaining two claims for tortious interference and disclosure of confidential information. On December 2, 2019, Plaintiffs filed their Opposition. The matter came on for a hearing on February 10, 2020, after which the trial court, in finding that Plaintiffs had failed to produce evidence sufficient to show an ability to satisfy their evidentiary burden at trial, as to either claim, granted Home Bank's Motion for Summary Judgment and dismissed Plaintiffs’ remaining claims with prejudice. It is from that judgment which Plaintiffs appeal.
In its Statement of Uncontested Facts filed with the Motion for Summary Judgment, Home Bank stated, generally, that it had made loans to Hacienda for $70,000.00 and $1,020,000.00—both of which were secured through Multiple Indebtedness Mortgages on the immovable property included in the subdivision development for which the money was borrowed—and that, by the time the loans matured, $900,000 remained unpaid such that the loans were in default. Conversely, Home Bank asserted that, throughout the ensuing multiyear negotiations, it maintained, at all times, the right to foreclose on the property securing the loans. Further, Home Bank claimed that no acceptable workout was agreed upon, reduced to writing, or executed by the parties. Home Bank also stated that years after the loans had matured, since the work-out negotiations had still not concluded, it would require Hacienda to sell at least ten of the encumbered lots for at least $20,000.00 per lot, or otherwise reduce the outstanding debt by $200,000.00 before November 30, 2012 to avoid foreclosure. After failing to comply, Plaintiffs requested that Home Bank release three of the many mortgaged lots, which, Home Bank later learned, were allegedly to be sold to Plaintiff's son. However, Home Bank did not view the proposed sale as an arm's length transaction. Home Bank also stated that, at the time Home Bank decided to foreclose, the loans had been in forbearance for nearly three years and that Home Bank substantially discounted the interest accrued on the debt. Finally, Home Bank asserted that three senior bank officials testified that no loan or balance information was given to any third party. Home Bank asserted that it introduced Mr. Ramos to Saun Sullivan, a potential buyer/developer, at Mr. Ramos's request and that Mr. Sullivan declined to make a blind offer on the properties after requesting that Mr. Ramos provide a listing price. In opposing the Motion for Summary Judgment, Plaintiff stated no specific Opposition to the particulars of Home Bank's Statement of Uncontested Facts, although they recited a different version of events in their Opposition.
An email attached to the Motion for Summary Judgment from Denise Jackson to Mr. Ramos, dated March 8, 2012, indicates that Mr. Ramos Sr. in his personal capacity may have actually been buying the lots from Hacienda, LLC., rather than Mr. Ramos's son, Ramon Ramos Jr., or his son's company, Hacienda Construction, Inc, where it stated that "Mike said that you [Mr. Ramos] will be arranging the sale of the 3 required lots to you personally through John Davidson." Thereafter, in its 1442 Deposition, Home Bank stated that it had received information that Mr. Ramos’ son, Ramon Ramos Jr., was going to purchase those lots and that, because it was a sale between father and son, which Home Bank alleged did not reflect the market value of those lots, it did not constitute an arm's length transaction.
Appellant assigns error to the trial court's judgment concluding there were no genuine issues of material fact and that Home Bank was entitled to judgment as a matter of law.
STANDARD OF REVIEW
Appellate courts apply a de novo standard of review when evaluating a district court's ruling on a Motion for Summary Judgment. See, e.g. , Lloyd's Syndicate 1861 v. Darwin Nat'l Assurance Co. , 17-623 (La. App. 5 Cir. 5/23/18), 248 So.3d 709, 714. Summary judgment is appropriate when the Motion, memorandum, and supporting documents show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). As neither party objected to any document attached to either the Motion or Opposition, we consider all documents attached to both the Motion and Opposition in reviewing the propriety of the trial court's action granting Home Bank's Motion for Summary Judgment. La. C.C.P. art. 966(D)(2) ; see McClellan v. Premier Nissan L.L.C. , 19-289 (La. App. 5 Cir. 2/26/20), 293 So.3d 648, 651 n.2, 653 n.5, 655 & n.7, 658-59 & nn.11-12.
Evidentiary Support-Motion for Summary Judgment
Home Bank, in support of its Motion, attached Plaintiffs’ Responses to Home Bank's Interrogatories and Request for Production of Documents, the Bank's Petition and Order of Executory Process, multiple emails among various individuals transmitted between October, 2011 and March 29, 2012, as well as portions of the depositions of three Home Bank officers, Ralph Edwards, Darren Guidry, and John Zollinger. The documents attached to Home Bank's Motion for Summary Judgment produced the following information. Responses to Interrogatories
"Answers to interrogatories" and "depositions" are included in the exclusive list of documents which may be filed in support of or in Opposition to the Motion for Summary Judgment. La. C.C.P. art. 966(A)(4). However, the court "shall consider any documents to which no objection is made." La. C.C.P. art. 966(D)(2).
During the discovery process, in its Response to Home Bank's Interrogatories and Request for Production of Documents, Hacienda described Home Bank's alleged tortious interference with business claims and release of confidential information as follows:
As to tortious interference with its business:
Hacienda Holding Company, LLC owned property and previously sold lots to Hacienda Construction of Louisiana, Inc. which served as building contractor to individual purchasers of lots. Because the lots were not released, the purchaser [Hacienda Construction] could not complete the sales. Without the sales, Hacienda Holding Company, LLC was unable to obtain proceeds to pay down the loan and business reputation was harmed.
With regard to Home Bank's request for documentation, which would support Hacienda's tortious interference allegation, Hacienda stated, "copies of cancelled sales agreement(s) are presumably in Home Bank's possession but were not produced in discovery." In response to Home Bank's request for a statement as to the damages resulting from Home Bank's alleged tortious interference, Hacienda asserted, "Hacienda Holding Company LLC had to obtain financing from a third party in order to prevent the foreclosure by Home Bank; loss of sales of lots, legal fees and other expenses to be determined pursuant to the Court's pretrial order..."
As to the Bank's alleged release of Hacienda's confidential information to a third party, Hacienda responded,
Upon information and belief the person to whom information was releases (sic ) is Saun Sullivan. The person(s) that released the information are Home Bank representatives and include possibly Mike Heffner, John Zollinger, IV and Denise Jackson. The date the information was released is best known by the individuals involved.
To support its breach of confidentiality allegation, Hacienda directed Home Bank to emails.
Petition for Executory Process
As reflected in the pleadings attached to Home Bank's Motion, on January 25, 2013, Home Bank filed a Petition for Executory Process against Hacienda Holding Company, LLC., Ramon Ramos, Mary Ann Benoit Ramos, Hacienda Construction, Inc., Hacienda Builders, Inc., Eduardo Emilio Terrero, Ramon Ramos Jr., and Blanca Santacruz alleging that, on August 26, 2008, Statewide Bank loaned $70,000.00 to Hacienda Holding Company, LLC., whose members were Ramon Ramos and Mary Ann Benoit Ramos. This loan was secured, in part, by a Multiple Indebtedness Mortgage over a piece of immovable property located on Sue Ker Drive, Harvey, Louisiana. Relevant to the Sue Ker Drive property, in October 2008, Ramon and Mary Ann Ramos had entered into a Bond for Deed Contract with Eduardo Emilio Terrero on that property and, on January 14, 2011, Ramon and Mary Ann Ramos then conveyed the Sue Ker Drive property to their son, Ramon Ramos Jr., and Bianca Santacruz. In October, 2008, Home Bank assumed the loan and extended the loan's maturity date to November 5, 2011. Home Bank also alleged that, on December 16, 2010, Hacienda Holding, LLC. executed another promissory note where it borrowed an additional $1,020,680.00. The maturity date on that loan was December 16, 2011.
Edwardo Emilio Terrero, Ramon Ramos Jr., and Bianca Santacruz were sued only to the extent that they had any interest in the Sue Ker Drive property.
Home Bank alleged that the borrowers made only partial payments on the loans, and as a result, as of December 12, 2012, a balance of $65,496.53 on the first loan and a balance of $975,648.64 on the second loan was alleged to be due and owing, together with unpaid interest. Home Bank alleged that both loans were secured by commercial guarantees on all indebtedness to the bank, which were executed by Ramon and Mary Ann Ramos, Hacienda Construction, and Hacienda Builders, as well as by a Multiple Indebtedness Mortgage securing indebtedness up to $10,000,000.00. The mortgage included a confession of judgment for the full amount owed and reasonable attorney's fees.
On February 19, 2013, the trial judge issued an order of executory process and a writ of seizure and sale to the Jefferson Parish Sheriff to seize all mortgaged property.
Emails
A series of emails transmitted between October, 2011 and February, 2013, also attached to Home Bank's Motion, reflect a continuous series of negotiations among Michael Heffner, an independent banking contractor interfacing between Hacienda and Home Bank, the Ramoses, and various Home Bank officers, attempting to restructure the loans which, as of December, 2011, were due and owing. The emails reflect that, between the fourth quarter of 2011 and the end of January, 2013, Mr. Ramon and Heffner crafted various scenarios through which Hacienda would either renew its original loans or refinance the indebtedness with new loans; each scenario included Hacienda selling lots to repay Home Bank. There is no evidence that Heffner was authorized to bind Home Bank to any deal, and the emails reflect that Heffner was required to present each scenario he and Mr. Ramos had fashioned to Home Bank's officers for approval.
Originally, Heffner appears to have interfaced primarily with Denise Jackson, a bank vice president. In late 2011, after the original loans had matured, Denise Jackson transmitted maturity extensions to Mr. Ramos pending restructuring negotiations. In January, 2012, Denise Jackson was required to obtain a late fee waiver, as Mr. Ramos had not timely executed the maturity extensions. In March, 2012, as reflected in an email from Denise Jackson to Mr. Ramos, Heffner and Mr. Ramos arrived at a plan involving Hacienda's sale of the "three required lots" to Mr. Ramos personally. Denise Jackson, at that point, transmitted loan documentation for Mr. Ramos to review prior to closing on a loan renewal. In her transmittal email, Denise Jackson specifically drew Mr. Ramos’ attention to the loan agreement conditions. Mr. Ramos disagreed with multiple areas of Home Bank's proposed loan conditions and basically declined to sign pending more negotiations. Thereafter, he and Heffner continued to fashion new scenarios which Heffner conveyed to the bank.
By April, 2012, it appears that Mr. Ramos began to question Heffner about Home Bank's good will, with Heffner, on each occasion, assuring Mr. Ramos that the Bank was operating in good faith and without either malice or an alternate agenda. Heffner continued to assure Mr. Ramos that Home Bank did not want to proceed to foreclosure, "they truly want to get paid in green, not dirt." Mr. Ramos’ complaint was that the deal Home Bank had approved was "totally different from what you and I originally agreed on." In April, 2012, Heffner explained to Mr. Ramos that Home Bank's unwillingness to acquiesce to his demands was based on Home Bank's concern for repayment within the term of the Federal Deposit Insurance Corporation (FDIC) loss shares and to avoid exposure to the Bank in the event of further payment default. By the first quarter of 2013, the parties still had not reached a solution amenable to both the Ramoses and the Bank. No loan renewal or refinance documentation was signed, and the loan balances were still due and owing.
In late January, 2013, Home Bank relieved Heffner of his activities related to the loan negotiations. At that point Ralph Edwards, Home Bank's special assets manager, took over negotiations with Hacienda directly, reporting to his own Bank superior, Darren Guidry. At that time Home Bank also began proceeding toward executory process.
Deposition Testimony-Tortious Interference
Also attached to Home Bank's Motion were excerpts of depositions of three senior bank officials involved in the Hacienda loan forbearance and renegotiation attempts, Ralph Edwards, Darren Guidry and John Zollinger. In his deposition, Ralph Edwards reiterated the facts set forth in Home Bank's petition for executory process. He also testified that in October, 2012, Home Bank told Heffner that, in order to satisfy the Bank, Mr. Ramos would have to sell ten lots for $20,000.00 each in order to reduce the outstanding balance by $200,000.00 before a November 30, 2012 deadline. He did not recall Home Bank imposing any other restrictions upon Mr. Ramos in order to renew the loans but stated that Home Bank saw no evidence that Mr. Ramos fulfilled the requirement. The only response he recalled seeing was a February 5, 2013 email string between Heffner and Mr. Ramos regarding splitting up the ten lot requirement into three components: separate four-lot, three-lot, three-lot sales. He also explained that one of the things he attempted to convey to Mr. Ramos, in January, 2013, was that, because of the length of time over which "this" (forbearance and attempt at work out) had gone on with no evidence of lot sales, Home Bank required hard proof that the three-lot sale proposed by Mr. Ramos would be completed.
As to the foreclosure action, Mr. Edwards did not recall advising Mr. Ramos that the bank had decided, at that point, to foreclose. He saw no conflict in asking for evidence that the proposed lot sales would be completed—despite the fact that Home Bank had already decided to foreclose on the property—without informing the borrower of the decision to foreclose, because on other occasions Home Bank had worked out a loan that was in foreclosure before the foreclosure action took place. He explained that Home Bank's general policy is to avoid foreclosure.
Regarding the 2013 proposed three-lot sale, the documents Home Bank received at that point in time indicated that Mr. Ramos’ son, Ramon Ramos, Jr., was going to purchase those lots. It was Mr. Edwards’ opinion that this sale did not represent an arm's length transaction, as this transaction would not reflect a market value for the lots. He did not recall whether he conveyed this opinion to Mr. Ramos, and he had no information as to whether the $20,000 purchase price satisfied Home Bank's requirements to release the liens. Mr. Edwards indicated that Home Bank had previously agreed to a ten-lot sale with net proceeds of not less than $200,000.00, and he agreed that the figure worked out to $20,000.00 per lot—the same per lot figure proposed for the three lot sale—but Mr. Edwards clarified, "that was for ten lots, not three lots." He recalled an email in which Home Bank told Mr. Ramos it would not release the three lots because Home Bank's agreement, as conveyed to Heffner in October of 2012, was for a ten-lot, not a three-lot, sale. He did not know if Mr. Ramos ever agreed to the ten-lot requirement, and he did not know what Heffner told Mr. Ramos in 2012 about whether Home Bank approved splitting the ten-lot requirement into transactions of three, three, and four lots.
When Mr. Edwards took over the file, he received no paperwork from Heffner other than the emails. He knew nothing about documents that Heffner would have presented to Mr. Ramos. What Home Bank discussed with Heffner in October of 2012 was that, in order to continue the relationship in a work out posture, the ten-lot sale and payment to the bank of not less than $200,000.00 had to be accomplished by November 30, 2012. Home Bank rejected Mr. Ramos’ proposed three-lot deal because the bank required a ten-lot sale to keep the loan going; the three-lot sale was not an arms’ length transaction, and it would cause the bank to incur additional costs to modify the petition for foreclosure. Mr. Edwards did not recall conveying those reasons to Mr. Ramos, other than stating that the Bank required a full pay out of the loan. As to whether there was any restriction to Mr. Ramos selling to his son, what mattered to Home Bank was that the bank was living up to its October, 2012 agreement with Heffner for a ten-lot sale by November 30, 2012, and barring that, the bank would move forward to foreclosure. Mr. Edwards did recall that, in his emails, Mr. Ramos said something about getting financing from somewhere other than Home Bank. Mr. Edwards never followed up on that statement.
Mr. Darren Guidry, Mr. Edwards’ superior, testified that Heffner would have reported any proposals regarding negotiations with Hacienda to him as they communicated on a regular basis. He never rejected any of Heffner's proposals and approved only one, the October, 2012 ten-lot sale for a total of $200,000.00. He did not recall Heffner telling him, thereafter, that Mr. Ramos was going to have the ten-lot sale broken up into a three-lot, three-lot, and four-lot deal. As to the three-lot sale proposed in January, 2013, he did not know whether it was part of the ten-lot sale, and at that point, information that the lots had sold in 2012 would not have altered his position from proceeding to foreclosure because the loan had matured in 2011, the documents to renew the loan had been prepared and presented, but not signed, and Home Bank did not decide to foreclose until over one year after the loans had matured. Home Bank conveyed to Plaintiffs that it would not release the three lots for a sale to Hacienda Construction, Inc. because the bank had already been through two and three-quarter's years of forbearance, and the sale of ten lots for $200,000.00 was something Home Bank thought the borrower had agreed upon, thereafter missing the deadline. Therefore, Home Bank believed the proposed sale from Hacienda to Hacienda Construction, Inc. to be a delay tactic.
In the deposition, the attorney named Hacienda Builders, Inc. as the party which contracted to buy the three lots.
As to foreclosure, Mr. Guidry was sure that, prior to the February, 2013 emails, Home Bank's counsel would have sent Mr. Ramos a demand letter that made it clear that a foreclosure action was pending. However, the bank never completed the foreclosure because the loans were paid off. Mr. Guidry was aware that the payoff was discounted significantly, which is not the bank's usual payoff practice, but Mr. Guidry believed Home Bank was trying to honor the work out arrangements Mr. Ramos had with Heffner—which included an agreement to forego charging interest until November 30, 2012. Therefore, the payoff amount only included interest charged from the beginning of 2013, which was a substantial discount.
With respect to the three-lot sale proposed in January, 2013, Home Bank did not request proof that Hacienda Construction, Inc. had the funds to go forward to closing before deciding to foreclose. There was no indication on the documents Home Bank did request—the purchase agreement and the HUD form—that Hacienda Construction, Inc. could not go forward to closing. Heffner never talked to Mr. Guidry about Hacienda's request for a payoff figure, and he did not become aware that Hacienda made such a request before the first or second quarter of 2013. As to Plaintiffs’ allegation that Home Bank disclosed their confidential financial information to Saun Sullivan, emails attached to Home Bank's Motion reflect that Saun Sullivan interfaced with Hacienda in both October, 2011 and July, 2012.
Deposition Testimony-Financial Disclosure
Mr. John Zollinger, Home Bank's north shore area president, testified in his deposition that he had had a relationship with Saun Sullivan, seven or eight years prior to the events at issue, while working at Regions Bank. When Mr. Zollinger moved to Home Bank, the relationship remained at Regions. In 2011, Saun Sullivan contacted Mr. Zollinger to ask if he knew of any Westbank real estate for sale, as Mr. Sullivan's company was starting a subdivision on the Westbank. Following that conversation, Mr. Zollinger spoke with Denise Jackson, asking if she thought Mr. Ramos would be interested in entertaining a sale. Denise responded that they should ask him. Thereafter, Mr. Zollinger called Mr. Ramos and asked him if he was amendable to meeting with a potential buyer, to which he responded, yes. After obtaining Mr. Ramos’ approval to do so, Mr. Zollinger gave Mr. Ramos’ telephone number to Mr. Sullivan. Thereafter, Mr. Sullivan, Mr. Heffner, and Mr. Ramos had a meeting at Home Bank's Westbank branch. Mr. Zollinger did not know exactly when that meeting took place or what was discussed but agreed that it may possibly have occurred around October of 2011. Emails between Mr. Ramos and Mr. Sullivan, dated October 1st and 2nd, 2011, reflect that the two met, that Mr. Ramos suggested that Mr. Sullivan make an offer, and that Mr. Sullivan demurred.
About nine months later, in July, 2012, Mr. Ramos asked Heffner about "the person who might be interested in lots," stating, "If that looks promising then we won't need to do much with the financing with Home Bank." Heffner replied that he was trying to set up a meeting. Thereafter, on July 26, 2012, Mr. Zollinger emailed Heffner, informing him that Mr. Sullivan had called and could meet on August 9th, after which Heffner followed up with Mr. Ramos. However, there is no evidence that a meeting took place.
Neither Mr. Edwards nor Mr. Guidry had any involvement in the communications between Mr. Sullivan and Hacienda regarding the Westbank real estate.
As a general matter, Mr. Zollinger testified that he never discussed the Hacienda properties with any other third party, and he never gave out Hacienda loan balance information to anyone who was not a bank employee. Mr. Edwards testified that, if a bank customer asked about real estate on the market, he would only give the bank customer information about real estate the bank had, which would be properties that the bank possessed the deed to by virtue of having gone through the foreclosure process. He would not share with one customer that another customer had lots for sale. That would be covered by the bank confidentiality and privacy policies.
DISCUSSION
The burden of proof for summary judgment rests with the mover. La. C.C.P. art 966(D)(1). However, if the mover will not bear the burden of proof at trial on the issue before the court on the Motion for Summary Judgment, the mover need only point out to the court the absence of factual support for one or more essential elements of the adverse party's claim. Id. Then the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. The determination of whether a genuine issue of material fact exists requires reference to the applicable substantive law. See, e.g. , Stephens v. Southern Sweeping Services , 03-826 (La. App. 5 Cir. 11/25/03), 862 So.2d 197, 199.
In order to prove a case for tortious interference with business, Plaintiffs must prove that Home Bank improperly and maliciously influenced a third party not to deal with Hacienda. Bogues v. Louisiana Energy Consultants, Inc. , 46,434 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128, 1134-35 (citing Junior Money Bags, Ltd. v. Segal , 970 F.2d 1, 10 (5th Cir. 1992) ); Ustica Enterprises, Inc. v. Costello , 434 So.2d 137, 140 (La. App. 5 Cir. 1983) (Louisiana law permits interferences designed to protect legitimate interests of the actor); St. Landry Homestead Fed. Sav. Bank v. Vidrine, 12-1406 (La. App. 3 Cir. 6/12/13), 118 So.3d 470, 490-91, writ denied, 13-2218 (La. 12/2/13), 126 So.3d 1283, and writ denied, 13-2219 (La. 12/2/13), 126 So.3d 1283 (tortious interference claims require more than an allegation that a defendant's actions affected the plaintiff's business interests); JDC Marketing Co. v. Bass Hotels and Resorts, Inc. , 01-1096 (La. App. 4 Cir. 3/6/02), 812 So.2d 834, 841 (plaintiff must show actual malice rather than conduct "driven by the profit motive").
Home Bank's evidence, attached to its Motion for Summary Judgment, highlights an absence of factual support for the elements of Plaintiffs’ tortious interference claim. The evidence establishes a prima facie case that Home Bank, for over a year and a half after Hacienda's loans went into default, engaged in ongoing negotiations with Hacienda in an attempt to restructure its loan without success, only thereafter proceeding to Executory Process. There is no evidence that Hacienda and Home Bank, at any time, came to an agreement as to how to restructure the loans, nor is there any evidence that Home Bank acted unreasonably, in bad faith, or with malice. Furthermore, there is no evidence of lot sales to any third party. The only evidence of purported lot sales involves sales to Mr. Ramos, his son (Ramon Ramos Jr.), and Hacienda Construction, Inc., a Ramos entity.
As to Plaintiffs’ claim that Home Bank violated Louisiana Revised Statutes 6:333, which provides, in part, "no bank or its affiliate shall disclose any financial records to any person other than the customer to whom the financial records pertain," the Bank produced evidence that Mr. Sullivan contacted a bank area president, Mr. Zollinger, with a general real estate inquiry, and Mr. Zollinger thereafter communicated the inquiry to Mr. Ramos, who then dealt directly with Mr. Sullivan. There was no evidence that any Home Bank employee or any independent consultant, on behalf of Home Bank, conveyed any confidential information to Mr. Sullivan, highlighting an absence of factual support for the elements of Plaintiffs’ disclosure of confidential information claim.
When a Motion for Summary Judgment is filed and supported in accordance with La. C.C.P. art. 966 -67, an adverse party may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B) ; Peralta v. Perazzo, 06-343 (La. App. 5 Cir. 10/31/06), 942 So.2d 64, 66, writ denied, 06-3028 (La. 2/16/07), 949 So.2d 415. As Home Bank presented a prima facie case for summary judgment, it was incumbent upon Plaintiffs to come forth with proof of a material issue of fact as to at least one element of Home Bank's case.
Plaintiffs’ Opposition to the Motion for Summary Judgment
As stated above, on December 2, 2019, Hacienda filed its Opposition to Home Bank's Motion for Summary Judgment. Hacienda attached thereto about fifty emails, approximately thirty of which were not duplicative of the emails attached to Home Bank's Motion. Those emails provide additional detail on various topics.
Plaintiffs’ emails reflect that, as of October, 2011, Mr. Ramos was working with Heffner, an independent consultant with some affiliation to Home Bank, to attempt to restructure his Home Bank loans, as they would default within the next sixty days. The exact nature of Heffner's relationship with Home Bank is not clear; however, Plaintiffs presented no evidence that Heffner was authorized to actually reach an agreement for Home Bank without first seeking approval from Bank officers. On the contrary, multiple emails attached to the Opposition reflect that, over the course of time, as Heffner and Mr. Ramos arrived at various potential plans for restructure, Heffner "pitched" each of the proposed plans to the bank, only thereafter conveying Home Bank's response to Mr. Ramos.
Emails from October, 2011 and January, 2012 emphasize Home Bank Vice President Denise Jackson's attempts to work with Mr. Ramos in good faith during that period, including waiving late charges. Thereafter, in emails from the spring of 2012, Heffner continued to reiterate to Mr. Ramos Home Bank's good faith willingness to attempt to renew the loans and desire to avoid foreclosure.
As discussed above, in March, 2012, Denis Jackson transmitted loan closing papers to Mr. Ramos for review, and he rejected them. Additional March and April, 2012 emails between Mr. Ramos and Heffner reflect the source of Mr. Ramos’ dissatisfaction with Home Bank's written conditions contained in the rejected March, 2012 renewal closing documents as well as the changes Mr. Ramos wanted made to the previously transmitted loan documents and discussions of alternative plan proposals. In a March 19, 2012 email from Mr. Ramos to Heffner, Mr. Ramos first stated that it was his understanding that he and Heffner had a "done deal." Thereafter, Mr. Ramos repeatedly argued, as late as February of 2013, in various emails that he and Heffner had a March 1, 2012 deal, which included the release of three lots with a payment of $20,000.00 per lot. While Mr. Ramos posited in his discovery documents that an email (or emails) documented his alleged authorized agreement with the Bank, there is no email (or emails) attached to either the Motion or Opposition which reflects Heffner's authority to bind Home Bank or any such written and signed agreement. Nevertheless, as late as February of 2013, in emails with bankers Ralph Edwards and Darren Guidry, Mr. Ramos continued to accuse the bank of breaching the alleged March, 2012 agreement, particularly with regard to Home Bank's ongoing refusal to release three lots from the mortgage, and to claim that the failure to release the lots was causing Hacienda damage. On February 6, 2013, Ralph Edwards asked Mr. Ramos to produce a "prior signed agreement regarding disposition of debt." Mr. Ramos produced no agreement.
During the period between March, 2012 and January, 2013—before Home Bank terminated its consultant relationship with Heffner—Heffner continued to pitch plans to the Bank, which he and Mr. Ramos had formulated, reporting back to Mr. Ramos his lack of success, in some instances, and forwarding to Mr. Ramos the Bank's responses in others. On the occasions that Home Bank responded with an alternative proposal, Mr. Ramos complained of too little information to respond.
The attached emails reflect that, in October of 2012, the Bank transmitted to Mr. Ramos through Heffner proposals that required a takedown of ten lots at $20,000.00 per lot and a payment to the Bank of $200,000.00 by a November 30, 2012 deadline. Again, Mr. Ramos quarreled with the proposal. Thereafter, between the end of October of 2012 and January of 2013, Mr. Ramos unsuccessfully attempted to communicate with Heffner.
The attached emails reflect that, on January 24, 2013, Heffner informed Ralph Edwards, Home Bank Special Assets Manager, that Mr. Ramos had three lots ready to close and was seeking release of those lots for $20,000.00 per lot with no conditions. Mr. Edwards responded to Heffner on January 25, 2013:
Here are the bank's conditions regarding Mr. Ramos’ request:
1. Home Bank to receive executed lot purchase agreements by 1/31/13. Proposed lot sales must be completed by 2/28/13. Home Bank requires the greater of $20M/lot or net proceeds.
2. Borrower will pay Home Bank's legal costs to-date, in addition to the net proceeds from lot sales. Legal bills to date: $7,622.50
3. No forbearance
Heffner forwarded Mr. Edwards’ email to Ramon Ramos, Jr., who responded on behalf of his father, Mr. Ramos, stating, "As far as we know, the legal fees are not an agreed item since there was an agreement prior to March 1, 2012 that Home Bank breached." In his January 24, 2013 email to Heffner, Mr. Edwards also instructed Heffner to have no further communication with Mr. Ramos.
Thereafter, Mr. Edwards informed Mr. Ramos that he had taken over as the contact for Hacienda's loans and that he would meet Mr. Ramos to discuss the status of the loan on the condition that "by close of business, Friday, February 15, 2013, you provide Home Bank with the signed purchase agreements on the 3 lots under contract and the preliminary HUD-l forms for each prospective closing." In a series of February, 2013 attached emails, Mr. Ramos quarreled with the requirement that he produce the purchase agreement and HUD forms, suggesting that the requirement violated the purchasers’ confidentiality. Finally, on February 14, 2013, after the Bank had received the purchase agreement and HUD form, which, according to Mr. Edwards’ deposition, showed that Mr. Ramos was selling the lots to his son, the Bank required a full pay out of the Hacienda debt.
As Plaintiffs’ petition concluded, "Despite LLC's satisfaction of all the terms of the agreement of January 26, 2013, Edwards, via email on February 14, 2013, rejected the [three] lot partial release and demanded full payout," it appears that when Plaintiffs alleged that Home Bank's act of tortious interference was "failing to release certain lots in breach of its written agreements with LLC," it was referring to the email from Mr. Edwards on January 25, 2013, outlining Home Bank's conditions for considering Mr. Ramos’ request for release. However, whether Home Bank's alleged obligation to release the three lots for sale arose on January 25, 2013 or March 1, 2012, Plaintiffs’ supporting documentation does not establish that an agreement existed under either the Credit Agreement Statute or under general contract provisions.
The Credit Agreement Statute, La. R.S. 6:1121 et. Seq. , provides, "A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor." La. R.S. 6:1122. The agreement of an existing creditor to take or not to take certain actions, "such as entering into a new credit agreement forbearing from exercising remedies under a prior credit agreement, or extending installments due under a prior credit agreement," are not considered agreements unless they satisfy the requirements of La. R.S. 6:1122. La. 6:1123; See e.g. , L.A. Homes, Inc. v. First Nat. Bank USA , 12-851 (La. App. 5 Cir. 12/21/12), 110 So.3d 181, 182 (finding that an alleged agreement with a creditor that was confected through emails was unenforceable because the emails were not signed by both parties in accordance with La. R.S. 6:1122 ).
Furthermore, a contract or agreement is formed by an offer and an acceptance that conforms to the terms of the offer, for without a meeting of the minds, there can be no consent to contract. La. C.C. art. 1927 ; Marseilles Homeowners Condo. Ass'n, Inc. v. Broadmoor, L.L.C. , 12-1233 (La. App. 4 Cir. 2/27/13), 111 So.3d 1099, 1111. An acceptance that does not agree to all of the terms of an offer is deemed a counteroffer, which does not form a contract unless accepted. La. C.C art. 1943.
Plaintiffs’ evidence does not establish that Hacienda and Home Bank ever reached a written and signed agreement to renew or refinance the loans during the prolonged period spent negotiating. Rather, the evidence suggests that Mr. Ramos continuously refused to agree to the terms of the renewal on the basis that he was not getting the deal he wanted. Furthermore, the numerous emails do not suggest that an agreement was formed prior to, or by virtue of, the January and February emails between Mr. Edwards and Mr. Ramos. None of the emails evidenced a binding credit agreement between Hacienda and Home Bank and none were signed by both parties. Further, even considering the emails in the aggregate, there is no evidence of a valid offer and a valid acceptance to the terms of the offer. Plaintiffs specifically rejected one of Home Bank's conditions for release, as stated in the January 25, 2013 email, when Ramon Ramos Jr. stated that Hacienda would not agree to pay Home Bank's legal fees—a statement that Mr. Ramos later echoed in a February 5, 2013 email saying, "I fail to see where Home Bank is entitled to be compensated for their research fees to include attorney fees." These protests suggest either a lack of acceptance or, at best, a counteroffer, and there is no evidence that Home Bank accepted the different terms.
Based upon the foregoing, Plaintiffs failed to show that Home Bank acted improperly or maliciously. In fact, the evidence supports the inference that Home Bank acted to protect its own legitimate business interests by terminating renewal negotiations, pursuing foreclosure, and declining to release the three lots, which served as collateral on the defaulted loans, as requested by Mr. Ramos. Furthermore, importantly, in the documentation attached to the Opposition, Petitioners provided no evidence of the existence of any third-party buyers and no evidence that Hacienda's reputation was tarnished as to any such alleged third-party buyers.
Plaintiffs’ Opposition as to the Alleged Breach of Confidentiality
As stated above, regarding the Bank's alleged release of Hacienda's confidential information to a third party, in discovery, Hacienda responded:
Upon information and belief the person to whom information was releases (sic ) is Saun Sullivan. The person(s) that released the information are Home Bank representatives and include possibly Mike Heffner, John Zollinger, IV and Denise Jackson. The date the information was released is best known by the individuals involved.
As such, to support its breach of confidentiality allegation, Hacienda directed Home Bank to emails.
In the attached emails are the October, 2011 exchanges between Mr. Ramos and Mr. Sullivan in which Mr. Ramos suggests that Mr. Sullivan make an offer to purchase lots and Mr. Sullivan demurs. There is no evidence in either of those emails that Mr. Sullivan had any information about Hacienda's loan status or financial condition generally. As to the July, 2012 email exchange between Heffner and Mr. Sullivan, there is no evidence in that exchange of communications between Mr. Sullivan and Home Bank except his availability for a meeting, about which there is also no evidence. Mr. Zollinger testified to no release of confidential information and Plaintiffs provided no documentation whatsoever regarding Ms. Jackson and Heffner's alleged release of confidential information. Plaintiffs produced no documentation whatsoever to support any breach of their right to confidentiality.
CONCLUSION
After Home Bank properly supported its Motion for Summary Judgment with evidence emphasizing Plaintiffs’ lack of factual support for their allegations that Home Bank improperly and maliciously influenced a third party not to deal with Hacienda and disclosed Hacienda's confidential financial information to a third party, Plaintiffs failed to set forth specific facts showing that a genuine issue of material fact exists as to the claims for tortious interference with business relations and unlawful disclosure of financial information. The judgment of the district court is affirmed.
AFFIRMED
LILJEBERG, J., CONCURS WITHOUT REASONS
LILJEBERG, J., CONCURS WITHOUT REASONS