Richland State Bank v. Benny L. dePingre and Patricia Catron dePingre consolidated with Patricia Catron dePingre v. Richland State Bancorp, L.L.C.

Judgment rendered April 5, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,411-CA
No. 54,412-CA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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No. 54,411-CA No. 54,412-CA

RICHLAND STATE BANK PATRICIA CATRON DEPINGRE
Plaintiff-Appellant Plaintiff-Appellee

versus versus

BENNY L. DEPINGRE AND RICHLAND STATE BANCORP,
PATRICIA CATRON DEPINGRE LLC
Defendants-Appellees Defendant-Appellant

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court Nos. 77311 and 77313

Honorable Robert L. Pittard, Judge

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THE COHN LAW FIRM Counsel for Appellant
By: Bartley P. Bourgeois

McMICHAEL, MEDLIN, D’ANNA, Counsel for Appellee,
WEDGEWORTH & LAFARGUE, L.L.C. Benny L. dePingre
By: James C. McMichael, Jr.

SENTELL LAW FIRM, L.L.C. Counsel for Appellees,
By: Charles Sherburne Sentell, Jr. Patricia Catron dePingre
C. Sherburne Sentell, III Margaret dePingre Willis

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Before STEPHENS, HUNTER, and O’CALLAGHAN (Pro Tempore), JJ.

HUNTER, J.

Richland State Bank appeals a judgment granting Patricia dePingre’s

motion for summary judgment declaring a mortgage of her property null and

dismissing all claims against her. For the following reasons, we affirm.

FACTS

In November 2013, Patricia dePingre gave a written power of attorney

to her son, Benny dePingre, and her daughter, Margaret Willis, designating

them as her agents. Using the power of attorney, Benny signed a mortgage

in favor of Richland State Bank, encumbering his mother’s commercial

property located in Minden. The mortgage secured a loan to Benny in the

amount of $175,824.16. Patricia did not owe a debt to the bank at that time

and did not sign the mortgage or promissory note. Benny signed his

mother’s name on the mortgage above her printed name as if she had

personally signed herself. Several days later, a notarial correction was

executed in which the notary explained the son had intended to sign the

mortgage as his mother’s agent under the power of attorney. Benny dePingre

later defaulted on the loan.

In August 2018, Richland State Bank filed a petition to collect sums

owed under a promissory note and to enforce a mortgage against Patricia

dePingre and Benny dePingre. In response, Patricia dePingre (“dePingre”)

filed a petition against Richland State Bank (“Richland”) seeking a

declaratory judgment that the bank’s mortgage was null and void because

the agent lacked the authority to mortgage her property. These lawsuits

were then consolidated.

In January 2019, dePingre filed a motion for summary judgment to

declare the mortgage null. The trial court denied the motion, finding

genuine issues of fact as to whether dePingre had been present at the bank

when the mortgage was signed and whether she may have owned stock in

the son’s corporation and benefitted from the mortgage. Additional

discovery produced evidence dePingre had never been inside the bank or

talked to any banker concerning the mortgage. In answer to an

interrogatory, Benny admitted his mother did not own stock in his

corporation. dePingre also filed an affidavit from her treating physician

stating she actually had dementia at the time the mortgage was signed.

In January 2021, dePingre filed another motion for summary

judgment based on the additional evidence produced in discovery. The trial

court granted the motion, ordering cancellation of Richland’s mortgage and

dismissing all claims against dePingre. Due to an error in the wording, an

amended and corrected judgment was signed on May 21, 2021. Richland

appeals the judgment.

DISCUSSION

Richland contends the trial court erred in granting summary judgment

despite the existence of genuine issues of material fact. Richland argues

Benny was authorized to mortgage dePingre’s property because the power of

attorney allowed him to sell or mortgage “any or all property” owned by the

principal.

The authority of the representative to represent another in legal

relations may be conferred by law, by a contract of mandate, or by the

unilateral juridical act of procuration. La. C.C. art. 2986. Pursuant to a

procuration, a person, the principal, confers authority on another person, the

representative, to represent the principal in legal relations. La. C.C. art.

2987. The term procuration refers to the same contractual relationship
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which is also known as a power of attorney. In re Succession of Hunt,

47,372 (La. App. 2 Cir. 9/20/12), 135 So. 3d 654. A power of attorney is

subject to the rules governing mandate to the extent those rules are

compatible with the nature of the representation. La. C.C. art. 2988.

Under the rules of mandate, the authority to alienate or encumber a

thing must be expressly given. La. C.C. art. 2996. Express authorization is

required for the agent to contract a loan, acknowledge a debt, or become a

surety. La. C.C. art. 2997(3). Self-dealing also requires express

authorization under La. C.C. art. 2998, which provides a mandatary who

represents the principal as the other contracting party may not contract with

himself unless he is authorized by the principal.

Appellate courts review summary judgments de novo, using the same

criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977

So.2d 880; Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La. App. 2

Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La. 10/2/09), 18 So.3d

122. Summary judgment shall be rendered if the motion, memorandum and

supporting documents show there is no genuine issue as to material fact and

that the mover is entitled to judgment as a matter of law. La. C.C.P. art.

966(A)(3). A fact is “material” if it potentially ensures or precludes

recovery, affects a litigant’s ultimate success or determines the outcome of

the legal dispute. Van v. Ferrell, 45,977 (La. App. 2 Cir. 3/2/11), 58 So.3d

522. In ruling on a motion for summary judgment, the district court’s role is

not to evaluate the weight of the evidence or to determine the truth of the

matter, but instead to determine whether there is a genuine issue of triable

fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764.
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In this case, the power of attorney granted the agent “full authority to

act for PRINCIPAL in the conduct of all of PRINCIPAL’s affairs.” The

instrument authorized the agent to deposit and withdraw from banks any

funds for the account of the principal, and to “borrow money on the notes or

other obligations of PRINCIPAL, such to be executed on PRINCIPAL’s

behalf.” The agent was authorized to “mortgage, assign, lease, pledge . . . or

release any or all property, interests or rights of any kind owned or to be

acquired by PRINCIPAL . . . and to receive and receipt for any sums or

rights received thereby.”

The language of the power of attorney, when considered as a whole,

demonstrates that the authority of the agent was to act in the interest of the

principal. However, the record shows the loan was made to the agent,

Benny, and his business, and not to the principal, Patricia dePingre. The

mortgage executed by Benny was security for the loan to him from

Richland. The promissory note representing the debt was signed by Benny

and he received the loan proceeds.

The power of attorney did not grant the agent specific authority to

mortgage property of the principal as security for the payment of a personal

loan to the agent. The language of the power of attorney cannot reasonably

be construed to authorize such self-dealing by the agent. Since the power of

attorney did not expressly authorize the agent to encumber the principal’s

property for the agent’s own benefit, the principal may repudiate the

mortgage.

Richland argues in its brief Benny’s actions were not “self-dealing,”

because Richland made the loan to Benny’s corporation, Trinity Transport of

Louisiana, Inc. Contrary to Richland’s argument, the record shows Benny
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signed the promissory note underlying the mortgage not only as president of

Trinity, but signed individually as well. Thus, the transaction involved a

personal loan to Benny and not a loan solely to the corporation. In addition,

since the loan documents expressly list Benny and his wife as borrowers and

Benny was personally liable for the loan, Richland’s contention self-dealing

cannot be proven except by piercing the corporate veil lacks merit.

Richland also argues there is a factual dispute concerning dePingre’s

knowledge of the mortgage because Benny stated in his deposition his

mother was aware of the mortgage and that the transaction was once

explained to dePingre. However, we note in the same deposition, Benny

acknowledged he did not know whether his mother knew of the loan and

mortgage. In any event, Benny’s deposition testimony does not show

dePingre gave any indication to Richland she consented to the transaction. In

addition, no bank representative stated he was told by dePingre that she

approved of the mortgage. Based on this record, Richland’s argument lacks

merit.

Richland asserts in its brief the mortgage is valid because Richland

relied on a power of attorney filed in the public records. However, as stated

above, the power of attorney relied upon by Richland does not contain

sufficiently specific authorization to permit Benny’s execution of a mortgage

of the principal’s property for his own benefit. Thus, the agent’s act is not

binding on the principal. Consequently, the mortgage purporting to affect

Patricia dePingre’s commercial property is null and void.

The evidence presented supports the trial court in concluding that the

power of attorney did not authorize Benny dePingre, as agent, to execute a

mortgage of his mother’s property to secure a loan for his personal benefit.
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Accordingly, based upon this record and the applicable law, the trial court

did not err in granting summary judgment declaring the Richland mortgage

of Patricia dePingre’s property null and void.

Patricia dePingre contends in her brief the appeal by Richland is

frivolous. Considering the legal issues raised by the parties, we do not find

the appeal frivolous.

CONCLUSION

For the foregoing reasons, the amended and corrected judgment of

May 21, 2021, is affirmed. Costs of this appeal are assessed to the appellant,

Richland State Bank.

AFFIRMED.

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