Appealed from the Forty-Second Judicial District Court for
the Parish of DeSoto, Louisiana Trial Court Nos. 78952; 78953
Honorable Charles B. Adams, Judge
W. ODOM Counsel for Appellants
KING, & LANDRY, L.L.P. Counsel for Appellee By: William
T. McNew April M. Hammett
WILLIAMS, McCALLUM, and THOMPSON, JJ.
November 20, 2017, Plaintiff, Iberia Bank, filed suit in the
42nd Judicial District Court to collect on a promissory note
and guaranty (No. 78952). Named as defendants were Dalton
Construction, LLC, and Nicholas Dalton, based on his
execution of a commercial agreement guarantying the payment
of Dalton Construction, LLC's indebtedness. On that same
date, Plaintiff also filed a separate suit in the 42nd
Judicial District Court on a line of credit agreement against
Nicholas Dalton (No. 78953).
in both suits were filed by Defendants on January 26, 2018.
Plaintiff filed motions for summary judgment
("MSJ") in both suits on March 16, 2018. The
hearing on the MSJ in the suit on the promissory
note/guaranty (No. 78952) was scheduled for April 24, 2018,
before Division "B." The hearing on the MSJ in the
suit on the line of credit (No. 78953) was scheduled for
April 26, 2018, before Division "A." Counsel for
both parties agreed to consolidate the two actions. On April
24, 2018, the actions were consolidated into No. 79, 852, and
a hearing on the motions for summary judgment was set for May
31, 2018, in Division "B."
31, 2018, Defendants filed a motion to stay pending
arbitration and for continuance, based upon an arbitration
clause in the promissory note. Plaintiff consented to a
continuance to allow the motions for summary judgment and the
motion to stay to be heard together. The motions were
rescheduled for June 21, 2018. On June 20, 2018, Plaintiff
filed a memorandum in opposition to the motion to stay
pending arbitration. At the hearing on June 21, the trial
court denied the motion to stay in open court (and signed a
judgment to that effect on July 13, 2018) and granted a
continuance as to the motions for summary judgment to allow
oppositions to be filed. The trial court specifically ordered
that "[A]ny opposition to the Motions [for] Summary
Judgment be filed on or before July 12, 2018. If no
opposition is timely filed, no hearing will be held and the
Court shall rule on the Motions based on the record."
opposition was filed, and the trial court signed a judgment
on July 30, 2018, granting summary judgment in favor of
Plaintiff and against Defendants in the suit on the
promissory note/guaranty (No. 78952) in the amount of $69,
305.29, together with accrued interest of $2, 344.10 through
October 18, 2017, interest accruing thereafter at the rate of
7.38% per annum until paid, late fees of $302.85, and
reasonable attorney fees and costs. In a second judgment
signed on July 30, 2018, the trial court granted summary
judgment in favor of Plaintiff and against Nicholas Dalton in
the suit on the line of credit (No. 78953) in the amount of
$13, 018.55, together with accrued and unpaid interest of $1,
256.24 through October 18, 2017, interest accruing thereafter
at the default rate provided for in the parties'
agreement of 21% per annum until paid, late fees of $75, and
reasonable attorney fees and costs. Defendants have appealed
from the trial court's judgments denying their motion to
stay and granting summary judgment in favor of Plaintiff in
the suit on the promissory note/guaranty (No. 78952/52,
issue of whether a court should stay or compel arbitration is
a question of law. Swaggart v. Doe, 50, 739 (La.App.
2 Cir. 04/05/17), 216 So.3d 1118, writ denied,
17-0758 (La. 09/22/17), 227 So.3d 822); Hansford v.
Cappaert Manufactured Housing, 40, 160 (La.App. 2 Cir.
09/21/05), 911 So.2d 901, writ denied, 05-2338 (La.
03/17/06), 925 So.2d 542; Conagra Poultry Co. v.
Collingsworth, 30, 155 (La.App. 2 Cir. 01/21/98), 705
So.2d 1280; Williams v. Keller Williams Realty,
14-0202 (La.App. 4 Cir. 11/05/14), 154 So.3d 605;
Hennecke v. Canepa, 96-0772 (La.App. 4 Cir.
05/21/97), 700 So.2d 521, writ denied, 97-1686
(10/03/97), 701 So.2d 210. The applicable standard of review
for questions of law is whether the trial court was legally
correct or incorrect. Id.
failure of a party to arbitrate in accordance with the terms
of an agreement may be raised either through a dilatory
exception of prematurity demanding dismissal of the suit or
by a motion to stay the proceedings pending arbitration, as
was done in the case sub judice. Swaggart,
supra; Long v. Jeb Breithaupt Design Build Inc., 44, 002
(La.App. 2 Cir. 02/25/09), 4 So.3d 930; Wied v. TRCM,
LLC, 30, 106 (La.App. 2 Cir. 07/24/97), 698 So.2d 685.
R.S. 9:4202 provides:
If any suit or proceedings be brought upon any issue
referable to arbitration under an agreement in writing for
arbitration, the court in which the suit is pending, upon
being satisfied that the issue involved in the suit or
proceedings is referable to arbitration under such an
agreement, shall upon application of one of the parties stay
the trial of the action until an arbitration has been had in
accordance with the terms of ...