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Succession of Doris Lavner Feingerts

Court of Appeals of Louisiana, Fourth Circuit

December 21, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-09918, DIVISION "A" Honorable Tiffany G. Chase, Judge



          Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore

          Daniel L. Dysart, Judge

         Bruce L. Feingerts appeals a summary judgment granted in favor of the Succession of Doris Lavner Feingerts (Succession), dismissing his Motion to Annul Probate of Will for Undue Influence. For the reasons that follow, we affirm.


         Doris Lavner Feingerts died testate on September 13, 2011, and her Succession was opened shortly thereafter. In 2012, Mr. Feingerts filed a Proof of Claim against the succession asserting that he was owed $103, 313.01 from the estate, an amount he calculated as his naked ownership in the succession of his father.[1] He also filed a Motion to Traverse the Second and Amended Usufructuary Accounting, a Motion to Traverse the Amended Estimative Descriptive List of Assets and Liabilities, and a Motion to Annul Judgment of Partial Possession and Return of Particular Legacies. The trial court denied all of the motions on October 13, 2013, and granted the Executrix's Petition to Homologate the Second Amended Usufructuary Accounting and Petition for Partial Possession. Mr. Feingerts's Motion for New Trial was denied.

         Mr. Feingerts appealed that ruling to this Court, arguing in part that the judgment of the trial court should be reversed and remanded, as based on newly discovered evidence, his mother had been unduly influenced into signing her last testament. He also alleged that his mother had possibly committed fraud.

         This Court declined to consider Mr. Feingerts's allegations of undue influence and fraud, as those matters were not considered previously by the trial court.[2] We further affirmed the trial court's order approving an amended estimative and descriptive list of assets and liabilities, and a ruling that the debts owed by Bruce Feingerts to his mother could be used to offset sums due him from his mother's or father's succession, and the Supreme Court denied his writ of review.

         After this Court rendered its opinion in Appeal No. 2014-0140, [3] the executrix for the succession filed a Motion for Summary Judgment in the trial court seeking to dismiss Mr. Feingerts's Motion to Annul Probate for Undue Influence. As explained infra, the motion was eventually heard on June 16, 2016. The trial court ruled in favor of the succession and this appeal followed.


         Mr. Feingerts has made three assignments of error. In his third assignment, he argues that the trial court erred in not granting him a continuance of the hearing on the Succession's motion for summary judgment. We address this issue first.

         On June 2, 2016, Mr. Feingerts filed a motion to continue the hearing on the subject Motion for Summary Judgment set for June 10, 2016, arguing that he had not yet recovered from his previous attorney the documents and files he needed to challenge the summary judgment. Also, he desired a continuance because he wanted to have his "ethics counsel" testify at the hearing, but the attorney was unavailable on the hearing date. Further, Mr. Feingerts alleged that discovery was incomplete and that complex conflicts of interest needed to be examined.

         In its Reasons for Judgment, the trial court explained that the first hearing on the Motion for Summary Judgment was set for October 9, 2015, but was continued by the consent of all parties to October 30, 2015. The trial court also allowed Mr. Feingerts time to file an opposition to the summary judgment motion.[4] On October 30, the trial court granted another continuance and allowed Mr. Feingerts's attorney, Sidney Shushan, to withdraw as counsel. The matter was reset to December 4, 2015.

         On December 4, the matter was continued to February 20, 2016, to allow Mr. Feingerts to secure new counsel and to file a supplemental opposition. On February 19, 2016, the court again granted Mr. Feingerts a continuance as he had not yet hired new counsel. The hearing was reset for June 10, 2016. On that date, the trial court denied Mr. Feingerts's motion to continue, but left the record open for an additional seven days for him to supply the court with depositions or any other evidence he had to oppose the summary judgment. The trial court ordered counsel for the Succession to forward a copy of the unfiled opposition prepared by attorney Shushan (see fn. 1), which Mr. Feingerts claimed he had never received. Counsel for the Succession was also ordered to submit to the court and to send to Mr. Feingerts the deposition of Rene Lehmann, Mrs. Feingerts's longtime attorney, which Mr. Feingerts requested the trial court to consider as part of his opposition.

         A trial court has vast discretion in controlling its docket and in determining whether motions to continue should be granted. Rowley v. Eye Surgery Center of La., Inc., 06-1243, pp. 4-5 (La.App. 4 Cir. 4/4/07), 956 So.2d 680, 683; Crawford v. City of New Orleans, 01-0802, p. 4 (La.App. 4 Cir. 1/23/02), 807 So.2d 1054, 1056. An abuse of discretion occurs when such discretion is exercised in such a way that a litigant is deprived of his day in court. Howard v. Lee, 50, 366, pp. 6-7 (La.App. 2 Cir. 1/13/16), 185 So.3d 144, 149. A trial court must weigh the particular facts of each case in deciding whether or not to grant a continuance, considering factors such as diligence, good ...

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