FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-09918,
DIVISION "A" Honorable Tiffany G. Chase, Judge
D. Schonekas Ian L. Atkinson SCHONEKAS EVANS McGOEY &
McEACHIN, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE
Michael D. Conroy CONROY LAW FIRM, P.L.C. COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Paula A. Brown,
Judge Marion F. Edwards, Pro Tempore
L. Dysart, Judge
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.
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. 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.
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.
Court declined to consider Mr. Feingerts's allegations of
undue influence and fraud, as those matters were not
considered previously by the trial court. 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.
this Court rendered its opinion in Appeal No. 2014-0140,
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.
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
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
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. 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.
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
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,