COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/25/2013. TRIAL JUDGE: HON. ROBERT P. KREBS. TRIAL COURT ATTORNEYS: NICHOLAS VAN WISER, RUSSELL MANNING, MICHAEL L. FONDREN.
FOR APPELLANT: MICHAEL L. FONDREN.
FOR APPELLEE: NICHOLAS VAN WISER.
BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.
¶1. This appeal arises from an Order Granting Motion for Summary Judgment and Final Judgment awarding LWC MS Properties, LLC (" LWC" ) a judgment against Melanie Bosarge (" Bosarge" ). The trial court found that Bosarge was individually liable for the deficiency balance after foreclosure under the terms of a personal guaranty she executed in relation to a secured loan made to her company, Indian Head Station, LLC (" Indian Head" ). On appeal, Bosarge contends a material issue of fact existed, inter alia, as to the value of the property securing the debt, that LWC should not have been permitted to maintain suit as a dissolved corporation, and that Bosarge should have been allowed to amend her pleadings and answer under Mississippi Rule of Civil Procedure 15. This Court reverses and remands with respect to summary judgment, and finds the second and third issues should be addressed by the trial court upon remand.
STATEMENT OF FACTS
¶2. On September 22, 2008, LWC, through its owner, Larry Cooper, obtained a balloon promissory note for $3,500,000 (plus interest) from Indian Head. Indian Head's owner and only member was Melanie Bosarge. The note was secured by a Deed of Trust for the Indian Head property, and was, in effect, a purchase-money transaction to buy the property and repair damage to the property's hotel from Hurricane Katrina. The note required Indian Head to make monthly interest payments and satisfaction of the entire unpaid amount at the note's maturation. Bosarge separately signed an individual continuing guaranty in favor of LWC that would make her personally liable for the unpaid amount in the event Indian Head defaulted.
¶3. The note and deed of trust contained the following relevant language:
For the purpose of inducing LWC MS Properties, LLC, (hereinafter called " Lender" ), to advance, continue or further extend credit to Indian Head Station, LLC, (hereinafter called " Customer" ), the undersigned (hereinafter collectively called " Guarantor" whether one or more), guarantees the prompt and full payment to Lender of all indebtedness and liabilities of Customer of all kinds which are now or hereinafter may be owing to Lender (whether created directly or acquired by Lender indirectly by assignment or otherwise, and whether now existing or hereafter arising, absolute or contingent, joint and/or several, due or to become due, primary or secondary, and all renewals and extensions thereof) up to the principal amount of Three Million Five Hundred Thousand Dollars and No/100 ($3,500,000.00) and in addition, all related interest, attorney's fees, collection costs and other fees and charges of any nature and kind, hereafter referred to as demand by Lender. Guarantor's liability hereunder may under no circumstances be affected or impaired by the existence, from time to time, of total obligations owing by Customer to Lender in excess of the amount herein guaranteed. This is the Continuing Guaranty which will remain in effect until all of the obligations are fully repaid and satisfied by Customer Guarantor.
The guaranty further contained a notice to Bosarge, which stated as follows:
You are being asked to guarantee this debt. Think carefully before you do so. If the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The Lender can collect this debt from you without first trying to collect the debt from the borrower. The Lender can use the same collection methods against you that can be used ...