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Swaggart v. Doe

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

JUDY DOVE SWAGGART Respondent
v.
JOHN DOE, BRETT MUNSON, REGIONS BANK and ABC INSURANCE COMPANY Applicant

         On 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

          COOK, YANCEY, KING & GALLOWAY By: Bernard S. Johnson Andrew P. Lambert Counsel for Applicant, Regions Bank

          THE UPTON LAW FIRM, L.L.C. By: Timothy F. Upton Counsel for Respondent

          Before LOLLEY, PITMAN, and COX, JJ.

          PITMAN, J.

         Applicant 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.

         FACTS

         Respondent 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.[1] 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.

         Respondent 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 doing so.

         Respondent 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.

         A few 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).

         In 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.

         Subsequently, 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.

         Regions 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.

         In 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, et seq.

         In 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.

         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.

         It is 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 she claims.

         Respondent 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 ...


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