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First Bank & Trust v. Simmons

Court of Appeals of Louisiana, Fourth Circuit

April 22, 2015

FIRST BANK AND TRUST
v.
NORBERT A. SIMMONS; CONSOLIDATED WITH: NORBERT A. SIMMONS
v.
FIRST BANK AND TRUST; CONSOLIDATED WITH: FIRST BANK AND TRUST, ET AL.
v.
NORBERT A. SIMMONS, ET AL. CONSOLIDATED WITH: NORBERT A. SIMMONS
v.
FIRST BANK AND TRUST, ET AL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-09750 C/W 2014-06211, DIVISION "I-14". Honorable Piper D. Griffin, Judge.

Mark C. Landry, NEWMAN MATHIS BRADY & SPEDALE, APLC, Metairie, LA, FOR PLAINTIFF/APPELLANT.

Albert A. Thibodeaux, Michael G. Bagneris, Daniel E. Davillier, DAVILLIER LAW GROUP, FOR DEFENDANT/APPELLEE.

Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Rosemary Ledet.

OPINION

Rosemary Ledet, J.

Page 1026

[2014-1210 La.App. 4 Cir 1] This case has a complex procedural background involving four separate, but interrelated lawsuits. This case originated as a bank's action to collect on a continuing guaranty. The bank, First Bank and Trust (" FB& T" ), ultimately obtained a judgment against the continuing guarantor, Norbert A. Simmons. After FB& T began enforcing the judgment in Florida (the state where Mr. Simmons resided), Mr. Simmons filed two suits in the Civil District Court for Orleans Parish (" CDC" ) seeking to annul the judgment. The present dispute between the parties stems from the trial court's rulings in those suits on the following matters: (i) Mr. Simmons' motions to transfer his two suits from the divisions of CDC to which they were randomly allotted to the division in which the judgment was rendered; (ii) Mr. Simmons' motion to consolidate his second suit with the judgment suit; (iii) FB& T's declinatory exception of lis pendens filed in Mr. Simmons' second suit, which was based on Mr. Simmons' first suit; and (iv) the issuance of a preliminary injunction in Mr. Simmons' second suit against the enforcement of the judgment.

[2014-1210 La.App. 4 Cir 2] To provide a framework for analysis, we begin by setting forth a brief description of each of the four pertinent suits between the parties, which is as follows:

1. First Bank and Trust v. Norbert A. Simmons, CDC No. 2010-09750, allotted to Division " I." This suit was filed on September 20, 2010, and was entitled " Petition for Breach of Guaranty Agreement" (the " Collection Suit " ). On January 14, 2011, a judgment was rendered confirming a default in this suit against Mr. Simmons.
2. Norbert A. Simmons v. First Bank and Trust and Joseph C. Canizaro, CDC No. 2014-01475, allotted to Division " A." This suit was filed on February 11, 2014, and was entitled " Petition for Damages and Declaratory Judgment" (" Simmons Suit One " ). In 2014, Simmons Suit One was transferred to Division " I."
3. Edward Neely and Sheryl Neely v. First Bank and Trust, CDC No. 2014-03225, allotted to Division " A." This suit was filed on March 31, 2014, and was entitled " Petition for Declaratory Judgment" (the " Neelys '

Page 1027

Suit " ). Mr. Simmons filed a petition for intervention in this suit (the " Intervention " ).
4. Norbert A. Simmons v. First Bank and Trust, CDC No. 2014-06211, allotted to Division " C." This suit was filed on June 24, 2014, and was entitled " Petition to Annul Judgment" (" Simmons Suit Two " ). In 2014, Simmons Suit Two was transferred to Division " I" and ...

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