WHITNEY NATIONAL BANK VS R. E. COLEMAN, INC., COLEMAN RV, L.L.C., LOUIS W. "CHIP" BIGNAR, BONITA BURATT BIGNAR, HANCOCK BANK AND BAY WASH
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 0453 WHITNEY NATIONAL BANK VERSUS R E COLEMAN INC PcI G COLEMAN RV L L C LOUIS W CHIP BIGNAR BONITA BURATT BIGNAR HANCOCK BANK AND BAY WASH Judgment Rendered December 28 2006 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 530 584 Honorable Brett P Furr Baton Rouge LA Kay Bates Judge Attorney for Plaintiff Appellee Whitney National Bank Richard E Matheny Attorneys for Shelton Dennis Blunt Defendants A Paul LeBlanc R E Coleman Inc J Chandler Loupe Baton Rouge LA Coleman RV LLC Christopher L Whittington Baton Rouge LA Attorney for Appellants and Defendants Appellees Chip Bignar Bonita Buratt Bignar and Bay Wash Louis W Darryl J Hebert Attorney for Eunice LA Defendant Appellee Hancock Bank of Louisiana BEFORE KUHN GAIDRY AND WELCH n WELCH J This Bank appeal involves R Whitney Coleman E appeal the trial funds in the a Coleman court registry of the judgment of the trial concursus court Inc proceeding filed by Whitney National and Coleman RV LL C judgment denying their claim s For the court and remand this to an that follow reasons matter to the trial collectively interest in the vacate we court the for further proceedings FACTUAL AND PROCEDURAL HISTORY This proceeding concursus Nineteenth Judicial District Court Coleman RV LLC 526 322 Louis W Division D Louis W of out separate suit filed in the a RE by Coleman entitled Bignar Lesa Callegan In that suit the embezzlement suit or conversion of funds belonging to Inc Coleman and and Louis Favorite Number Coleman Chip Bignar and others committed certain illegal embezzlement at v arises alleged that including the acts Coleman into certain accounts Whitney Several months after Coleman filed the embezzlement suit the instant concursus served with a proceeding relating acknowledged that it or the to any account was 47 Bignars On petition 46 825 into the Hancock Bank registry of the and Bay Wash any Bignar D BIA Bay or maintained because court any and produce by Bignar name Whitney of Bignar Whitney impleaded Coleman to assert their claims party had filed Bignars and Bay Wash filed Whitney impleaded Bay Wash of Chip opened to that it had been Bignar and deposited the total funds from these April 27 2005 before the petition the custodian of four accounts in the his wife Bonita Buratt accounts in its subpoena in the embezzlement suit requiring it all documents and Whitney alleged Whitney filed an one Wash 2 an answer unopposed motion ofthe accounts in its to set funds 1 Whitney s to the to the concursus custody was in the name for hearing 2 The motion Wash however it set for of the alleges that Coleman hearing The trial On contending that it the embezzlement suit a 3 memorandum filed a motion was entitled Bignars The on attorney consented s the matter for hearing court set 8 2005 Coleman filed July court signed only by the attorney for the Bignars was and 11 July to on having the to Bay matter July 18 2005 withdraw funds from the registry to the funds for the Bay Wash responded alleged in reasons this motion with to contending that they 2005 and entitled were to withdraw the funds On July filed various motion to 15 2005 the Friday withdraw funds from the proceeding but a the to setting of allow the hearing in a matter to hearing because the judge in the embezzlement suit had failed discovery matter that Coleman alleged interest in the concursus funds In addition was Coleman concursus In the motion Coleman court to the longer willing was no on motion to withdraw its earlier registry of the acknowledged that it had initially consented concursus hearing Coleman filed First pleadings before the critical to its ability to rule Coleman filed 2 On motion April in the funds and 3 a motion to strike the memorandum filed requesting no hearing matter at the hearing signed was on preventing Whitney held July to set not the been an by the timely filed Coleman for concursus petition denying the order on setting this motion for hearing that it had any interest hearing on August that date and it appears that the trial court simply 15 2005 heard the 18 2005 Bignar had filed a motion to quash and that the trial court had failed to rule Coleman from a that it be dismissed from the suit Coleman contended that issued to the unopposed motion 29 2005 Hancock Bank answered the The trial court however 4 to vacate on it had to prove in accordance with Rule 9 9 of the Rules for Louisiana District Courts a to proceed 4 Bignars and Bay Wash contending that the memorandum had also filed the obtaining on the subpoena Coleman had the motion to quash thus the bank records it needed to prove its entitlement to the funds 3 and motion a transfer and consolidate the to proceeding with the concursus embezzlement suit On July 18 2005 prior that date Coleman filed the funds attempted in the to by oral motion in file an answer enter to accounts the petition for belonged to concursus At the it contending that Coleman hearing preliminary default entered against the Bignars and Bay Wash open court based in the concursus on the failure of the Bignars and proceeding However the trial Bay Wash to refused to court the default The In a attending the hearing that had been scheduled for an answer Whitney have to the Bignars and Bay Wash introduced Whitney belonged only accounts introduction of the affidavits court two to affidavits them attesting Coleman that the funds objected to the contending that they were hearsay however the trial admitted the affidavits over Coleman s Coleman introduced the objection complete records of the embezzlement suit and the concursus proceeding but it did not offer any other evidence in support of its claim The trial court finding that they had Bay Wash with this which entitled were ruling was was denied been to signed timely filed the funds of Coleman specifically denied all not to 5 and concluded that the disbursement of the funds on July 27 2005 motions in open s A Bignars and judgment in accordance Coleman filed by judgment signed November 23 court a motion for 2005 This new trial suspensive appeal by Coleman followed DISCUSSION In its first assignment of adjudicating the merits of the hearing 5 on this matter error Coleman argues that the trial concursus Coleman proceeding argued that the The trial court had withdraw funds from the court and the erred in summary basis At the proceeding being concursus originally signed Coleman s registry of the court however the judgment appealed on a court was motion to withdraw its motion to trial court denied the motion in open from also denies the motion 4 handled in a summary fashion The trial ordinary proceedings set for trial that morning as an without court following the procedures applicable responded that testimony the trial on the affidavits A based concursus competing property or impleaded proceeding in a the rules the art parties to an 4662 the same as to to the Bignars and Bay Wash or or mortgages their assert Service of citation and in the in an same privileges or C C P to a on claims respective La proceeding having persons more ordinary proceeding apply proceeding shall be made are two property required and applicable delays for answering to in which one to money all other See La C C P concursus but did not offer proceeding they had submitted proceeding is contradictorily against concursus awarded the funds conflicting claims are Generally court had been matter ordinary proceeding After Coleman introduced the records of the embezzlement suit and the any in fact the to art 4651 a concursus copy of the petition form and and the manner La C C P ordinary proceeding art 4655 District courts are required to trial however the rules established establish the by the ordinary proceedings for trial except after courts procedure shall answer not filed for assigning allow the and Bay Wash had answered the petition court improperly matter for trial and the challenges the trial court set this Therefore we for assignment of See La C C P At the time the trial court set the matter for trial neither Coleman cases nor art the 1571 Bignars conclude that the trial judgment of the trial court is hereby vacated Coleman also consolidate this concursus filed in the district division of the separate actions court court are s denial of its motion proceeding with the embezzlement suit shall be randomly assigned See La C C P pending in the art same 253 1 to transfer and All pleadings particular section However when two court the section 5 a to or or or more division of the court in which the first filed action is trial after and law a contradictory hearing and La C C P predominate Louisiana District Courts trial 6 finding that a upon 1561 A art Appendix may order consolidation of the actions for 3 authorizes the Consolidation shall give one La C C P art party an not undue or judge of the second filed matter with the first filed fair and a prejudice the rights simply denied impartial of any party consider the factors set the trial forth in La C C P court for hearing a as untimely Coleman No transfer and consolidate the two suits consolidate Rules for See 1561 B In this matter the trial court matter to Rule 9 3 be ordered if it would prevent advantage issues of fact common In addition order the transfer and consolidation of the matter to matter pending contradictory hearing art 1561 on Accordingly Coleman s motion motion was we to s to held to remand this transfer and 7 DECREE F or the court reasons and remand this opinion All costs assigned above matter to of this the trial appeal Bignar and Louis W Bignar D we are B A hereby vacate the judgment court for assessed to proceedings Louis W of the trial consistent with this Bonita Buratt Bignar Bay Wash JUDGMENT VACATED AND REMANDED 6 Rule 9 3 Appendix 3 provides in pertinent part proceedings not in their nature original but growing out of suits or shall not be docketed as separate suits but proceedings previously pending Suits or shall be treated as parts of the original suits docketed and numbered or assignment oversight to the parts respective as out of which they ofsuch suits and shall follow the Division of the Court this rule shall be violated the Judge arise shall be prior allotment Whenever by error or to whom the matter shall have been allotted shall have power to order same transferred to the proper Division there to be consolidated with the original suit 7 We pretennit discussion ofColeman s remaining assignments 6 of error
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