HOLLYWOOD CASINO SHREVEPORT Vs. SHREVEPORT PADDLEWHEELS, L.L.C., WARREN L. REUTHER, JR. AND JAMES E. SMITH, JR.
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* NO. 2004-CA-0761 * COURT OF APPEAL * FOURTH CIRCUIT * HOLLYWOOD CASINO SHREVEPORT STATE OF LOUISIANA VERSUS SHREVEPORT PADDLEWHEELS, L.L.C., WARREN L. REUTHER, JR. AND JAMES E. SMITH, JR. * ******* APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2002-8240, DIVISION “A-5” Honorable Carolyn Gill-Jefferson, Judge ****** PER CURIAM ****** (Court composed of Judge Charles R. Jones, Judge Terri F. Love, Judge David S. Gorbaty) Robert T. Lemon II JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, L.L.P. 201 St. Charles Avenue 48th Floor, Bank One Center New Orleans, LA 701705100 COUNSEL FOR PLAINTIFF/APPELLEE Robert G. Harvey, Sr. Kelly A. Loisel ROBERT G. HARVEY, SR., APLC 2609 Canal Street Fifth Floor New Orleans, LA 70119 - AND W. Patrick Klotz KLOTZ & EARLY 2609 Canal Street Fourth Floor New Orleans, LA 70119 COUNSEL FOR DEFENDANT/APPELLEE Randall A. Smith Andrew L. Kramer SMITH & FAWER, L.L.C. 201 St. Charles Avenue Suite 3702 New Orleans, LA 70170 COUNSEL FOR DEFENDANT/APPELLANT REVERSED AND REMANDED PER CURIAM. The present matter arises out of a petition for concursus, declaratory judgment, and injunctive relief filed by the Appellee, Hollywood Casino Shreveport (hereinafter “Hollywood Casino”). The Appellant, Warren L. Reuther, Jr, devolutively appeals the February 11, 2004, judgment granting the Motion for Summary Judgment filed by Shreveport Paddlewheels, LLC (hereinafter “Shreveport”) alleging that no genuine issue of fact existed as to Mr. Reuther’s lack of authority to alter the business arrangement between Shreveport and Hollywood Casino. We reverse and remand. In Hollywood Casino Shreveport v. Shreveport Paddlewheels, LLC, et al., No. 2003-1856, this Court exercised its supervisory jurisdiction to review a prior district court order denying Mr. Reuther’s Motion to Compel the return of funds to the registry of the court. In our December 11, 2003 judgment, we granted Mr. Reuther’s writ application and reversed the ruling of the district court based on our previous determination that a conversion of the concursus to a summary proceeding was inappropriate. Hollywood Casino Shreveport v. Shreveport Paddlewheels, L.L.C., et al., 02-2134, p.8 (La.App. 4 Cir. 7/23/03), 853 So.2d 660, 665. Again, we reiterated the point that this matter should proceed via ordinary proceedings and should not be set expeditiously. In the present matter, the transcript of the hearing on the motion for summary judgment reflects that the district court stated: Motion for Summary Judgment is a procedural tool that can be used in an ordinary proceeding. To say as a matter of law, there is no need for trial in this matter, because ordinary proceeding does not mean that it has to be a trial. Ordinary proceedings means [sic] it has to follow procedural rules. Motion granted. However, pursuant to La. C.C.P. art. 966(A)(1), a party may move for summary judgment any time after the answer is filed. As we stated previously, “Once Mr. Reuther was named as a defendant in the concursus proceeding, he was entitled to avail himself of the rules applicable to ordinary proceedings.” Hollywood Casino, 02-2134 at p.8, 853 So.2d at 665. As there has been no answer filed by Mr. Reuther, we find that the district court erred in granting Shreveport’s Motion for Summary Judgment. Accordingly, we reverse and remand to the district court for proceedings consistent with the views expressed both previously and herein. REVERSED AND REMANDED
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