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ROSETTA IRONS, RICKEY                                                                                                    *   NO. 2007-CA-0570
NYE, WILLIAM WATTS,
SYLVIA VAN BUREN, ROSE                                                                                                   *   COURT OF APPEAL
THOMAS & SHANNON
THOMAS, LYNELL CLARK                                                                                                     *   FOURTH CIRCUIT
AND BRUNO & BRUNO, LLP
                                                                                                                         *   STATE OF LOUISIANA
VERSUS
                                                                                                                         *
US BANK, INC.
                                                                                                                         *
*
TOBIAS, J., CONCURS AND ASSIGNS REASONS.
I respectfully concur in order to assign reasons that in my view support the
majority’s conclusion that US Bank waived its right to object to the fifteen day
advance notice for the hearing provided for in La. C.C.P. art. 966B on the
appellant’s motion for summary judgment.
After unsuccessful correspondence with US Bank extending over months
trying to obtain US Bank’s signature on checks for insurance settlement proceeds,
the plaintiffs filed their petition for concursus; the trial court by order dated 14 July
2006 simultaneously set a show cause hearing for 11 August 2006 on a show cause
order why Bruno & Bruno, L.L.P., the appellant, should not be allowed to
withdraw his 25% of the monies deposited in the court’s registry for their legal
fees.  On 3 August 2006, an order was signed that set a show cause hearing for 11
August 2006 why the appellant should not be allowed to withdraw 33% of a
portion of the funds in the court registry as its fee.1  Service was effected by the
long arm statute.
On 10 August 2006, one day prior to the hearing and following US Bank
obtaining an extension of time to plead, US Bank removed the case to the United
States District Court for the Eastern District of Louisiana that by operation of law
1    Technically, this order was invalid because it was not signed by a judge, but by a court crier.  The order signed
did more than merely set a hearing date.
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stayed the 11 August 2006 hearing.  Following remand by federal court, the
appellant obtained an order on 13 September 2006 resetting their show cause
hearing for 11 November 2006.2  US Bank propounded discovery to the appellant
on 2 October 2006.3
On 23 October 2006, US Bank answered the petition. On 24 October 2006,
US Bank filed a dilatory exception of unauthorized use of summary proceedings,
asserting that the appellant could not obtain the sought relief by rule, that contained
an order setting a hearing on US Bank’s motion for 17 November 2006.4  US Bank
also filed a motion to compel answers to their discovery that was also set by court
order for 17 November 2006.5
On 2 November 2006, US Bank filed a peremptory exception of no cause of
action and obtained an order on 3 November 2006 setting a hearing date of that
motion for 17 November 2006.6  The substance of the memorandum in support of
the exception is a defense to the as yet unfiled motion for summary judgment.  The
appellant timely filed an opposition to same.
On 6 November 2006, the appellant filed the motion for summary judgment
at issue in this appeal and a memorandum in support thereof; and a hearing date
was set for 17 November 2006.
Subsequently, US Bank filed a reply memorandum on 15 November 2006 to
the appellant’s opposition to the exception of no cause of action.  The opposition
can be read to essentially address the same issues in the appellant’s motion for
summary judgment.
2    Again this order was signed by a court crier.
3    This discovery was formally objected to on 24 October 2006 by the appellant asserting the discovery sought was
privileged and irrelevant, and a formal opposition was filed thereto.
4    See footnote 2.
5    See footnote 2.
6    See footnote 2.
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On the morning of 17 November 2006, prior to the hearing of all set
motions, US Bank filed an opposition to the appellant’s motion for summary
judgment, accompanying with it a statement of uncontested facts.
On 11 December 2006, the trial court rendered a written judgment granting
the appellant’s motion for summary judgment, and overruling US Bank’s
exception of no cause of action and unauthorized use of summary proceedings.
US Bank thereafter timely filed a motion for new trial (silent on the fifteen
day issue), obtaining an order setting same for hearing on 23 March 2007.  The
appellant obtained an order resetting the motion for 9 February 2007 asserting that
expedited consideration was warranted.  The new trial motion was denied by
judgment signed on 13 February 2007.
Thereafter, the appellant filed a supplemental petition for concursus to which
US Bank filed identical exceptions.  For all intent and purposes, I find these filings
to be immaterial to resolution of the issue presently before the court.
The transcript of the hearing of 17 November 2006 affirmatively reflects that
US Bank asked to continue the motion for summary judgment arguing that they did
not have the full fifteen days allowed by law.  They asserted that they had not had
answer to their discovery.  The trial court proceeded to decide the issues by taking
the matter under advisement.  I note that US Bank did not file a further opposition
to the hearing of the motion for summary judgment prior to the trial court ruling
upon same.
From the foregoing, I find that US Bank waived their right to the full fifteen
day advance notice of the motion for summary judgment.  La. C.C.P. art. 2164.
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