Application for Writs from the Fourth Judicial District Court
for the Parish of Ouachita, Louisiana Lower Court Case No.
15-2173 Honorable H. Stephens Winters, Judge
YANCEY, KING & GALLOWAY By: Bernard S. Johnson Andrew P.
Lambert Counsel for Applicant, Regions Bank
UPTON LAW FIRM, L.L.C. By: Timothy F. Upton Counsel for
LOLLEY, PITMAN, and COX, JJ.
Regions Bank ("Regions") seeks review of the trial
court's overruling of its exceptions of prematurity and
lack of subject matter jurisdiction and the denial of its
alternative motion to stay pending arbitration. This court
granted the writ and made it peremptory, but the supreme
court granted writs and remanded, ordering that this court
have the matter fully briefed and argued. After briefing and
oral argument, the writ is granted, made peremptory and the
judgment of the trial court is vacated. The motion to stay
pending arbitration is granted.
Judy Dove Swaggart filed suit against Regions; Brett Munson,
the manager of the branch bank; an unknown person identified
as John Doe; and ABC Insurance Company; alleging that she
entered into a contract with a Regions branch in Monroe,
Louisiana, to lease two safe deposit boxes on July 7, 2011.
These boxes were allegedly leased when Byron Johnson was the
manager of that branch of the bank. She alleged that she
later acquired a third box. She claimed she was never given a
copy of the contracts leasing two boxes or the box keys. She
asserted that between $600, 000 and $700, 000 in gold coins,
silver bars and jewelry, comprising her entire life savings
and retirement funds, were placed in the boxes.
alleged that, in August 2014, when she went to Regions to
withdraw some items for appraisal and possible sale, Munson
had replaced the previous branch manager, Johnson. Munson
told her that Regions had registered only one box to her, Box
1148, and claimed it had no records that she had leased any
other boxes. She opened Box 1148 and retrieved a few items,
but, otherwise, found the box empty of the valuable property
she claimed it should have contained. She returned two days
later and asked to see the paperwork associated with her safe
deposit box. Munson showed her the paperwork for Box 1148,
the lease and the box entry log. She asked him for a
cashier's check; and, when he left the office, she
apparently took the documentation and left the building. He
discovered her paperwork was missing from his desk and called
her to ask if she had mistakenly taken it, but she denied
claims that, a few days later, she received an anonymous
letter in the mail which enclosed a copy of the contract
referencing Box 1121 with account number 10480011215, created
on July 7, 2011. This contract is not signed by Respondent.
She also had a copy of the contract for lease of Box 1148,
but that contract had been altered in that the box number and
account numbers had been scratched out and 1148 was written
above the box number and the number 00010480011484 was
written above the account number. Her signature is present on
the lease of Box 1148, and it is dated July 7, 2011.
days later, an attorney named Sedric Banks went to the same
branch of Regions and, on behalf of Respondent, showed the
manager the contract with the scratched-out information, but
he refused to tender it or allow Regions to make a copy of
it. He claimed that Respondent had lost a significant amount
of property as a result of placing her valuables in
Regions' safe deposit box(es).
September 2014, Regions filed a demand for arbitration with
the American Arbitration Association seeking recovery of the
contract and the log associated with the safe deposit box, as
well as seeking a declaration that Regions was not liable to
Respondent for any losses. Although Regions tried to twice
serve this demand on Respondent, service was never made.
on July 21, 2015, Respondent filed this suit alleging
negligence on the part of Regions and its employees, breach
of contract and that damages were due for mental anguish she
suffered for her loss of $750, 000 worth of property.
filed a dilatory exception of prematurity, declinatory
exception of lack of subject matter jurisdiction and an
alternative motion to stay pending arbitration. It contended
that, when Respondent rented the safe deposit box, she signed
a Safebox Customer Contract, the first page of which notified
her that the lease agreement, which began on the reverse side
of the form, limited or waived certain of her rights,
including that she agreed to arbitrate pursuant to the lease
and she was waiving the right to bring a court action. The
contract also provided that:
[a]ll unresolvable disputes or claims pertaining to Your Box
and this Lease or the relationships that arise therefrom,
whether based in contract, tort, or otherwise, shall be
resolved by binding arbitration under the expedited
procedures of the Commercial Financial Disputes Arbitration
Rules of the American Arbitration Association (AAA) and
Federal Arbitration Act in Title 9 of the U.S. Code.
conformity with the contract provisions, Regions alleged that
Respondent's litigation was premature because the parties
had mutually agreed to arbitrate her claims. Alternatively,
it alleged that the trial court lacked subject matter
jurisdiction to adjudicate the matter based on the
enforceable arbitration agreement. Finally, and in the
alternative, it prayed that a motion to stay proceedings
pending arbitration should be granted based on the provisions
of the Louisiana Binding Arbitration Law, La. R.S. 9:4201,
connection with the exceptions, Regions filed an affidavit by
Munson, which stated that he was aware of Respondent's
complaints, that she had leased Box 1148 and signed a Safebox
Customer Contract, which was the same, or substantially
similar to one attached to the affidavit, at least insofar as
the provisions relating to arbitration of claims, and that it
was a copy of the forms used by all branches of Regions as of
the date Respondent contracted to lease her safe deposit box.
He further stated that Respondent had come to the bank and
taken the contract and log book associated with Box 1148. He
also stated that Attorney Banks had left Regions with
Respondent's claims unresolved and had later informed
Regions in writing that he no longer represented Respondent.
filed an opposition to the exceptions and alleged that
Johnson, Regions' branch manager at the time she rented
the boxes, had to assist her with carrying a large, heavy bag
of property into the bank to be deposited into a safe deposit
box. She claimed that, on January 1, 2012, she and Wayne
Hummel, an appraiser, viewed at least two of the boxes and
the valuables therein. Hummel allegedly provided her with an
appraisal and purchased some of the items. Attached to the
opposition were copies of three Safebox Customer Contracts.
The contract for Box 1121 was unsigned, a contract for Box
1148 was unsigned and the third, for the same Box 1148, was
the altered contract containing the scratched-out
information, and it was signed by Respondent.
unclear where Respondent obtained the clean, but unsigned,
copy of the contract indicating she was renting Box 1148. The
copy that was signed, she argued, was prepared by Johnson in
July 2011. Thus, she claimed, the one contract for the box
(1148) that Regions acknowledged as hers was not the contract
for which she consented or signed. She argued that Regions
denied she even had contracts for the other two boxes that
contended that the Safebox Customer Contract for Box 1148
lacked her consent and was, therefore, void and
unenforceable. She stated that, because Regions denied
knowledge of her renting the two other boxes, it should be
denied the right to enforce the alleged arbitration agreement
in the contracts pertaining to those boxes. She argued that
her suit was not premature since there was no valid
arbitration agreement, that the ...