Succession of Achille Bijeaux v. Mildred Bourque Broyles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1342

SUCCESSION OF ACHILLE BIJEAUX

VERSUS

MILDRED BOURQUE BROYLES, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2005-3771
HONORABLE PATRICK MICHOT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of, John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

APPEAL DISMISSED.

Stanford B. Gauthier, II
Kristi D. Husher
Attorney at Law
1405 West Pinhook Road, Suite 105
Lafayette, LA 70503
(337) 234-0099
COUNSEL FOR PLAINTIFF/APPELLEE:
Succession of Achille Bijeaux

James Patrick MacManus
Attorney at Law
Post Office Box 4708
Lafayette, LA 70502
(337) 234-1720
COUNSEL FOR DEFENDANT/APPELLEE:
Mildred Bourque Broyles

George Phillip Shuler, III
Michael D. Spencer
Chaffe McCall, LLP
1100 Poydras Street, Suite 2300
New Orleans, LA 70163
(504) 585-7000
COUNSEL FOR DEFENDANT/APPELLEE:
John Hancock Life Insurance (U.S.A.)

Thomas A. Roberts
Barrasso, Usdin, Kupperman
909 Poydras Street, Suite 2400
New Orleans, LA 70112
(504) 589-9700
COUNSEL FOR DEFENDANTS/APPELLANTS:
Citigroup Global Market, Inc. and
David Alford

Gabriel A. Crowson
McGlinchey Stafford
643 Magazine Street
New Orleans, LA 70130
(504) 586-70130
COUNSEL FOR DEFENDANTS/APPELLANTS:
Citigroup Global Market, Inc. and
David Alford

PETERS, Judge.

On October 31, 2007, this court issued a rule for the appellants, Citigroup

Corporate and Investment Banking, Inc. d/b/a Smith Barney and David Anderson

Alford, to show cause why the appeal in the instant case should not be dismissed as

having been taken from a non-appealable interlocutory ruling. For the reasons below,

we dismiss the appeal.

Appellee, Succession of Achille Bijeaux, filed the instant action claiming that

defendant, Mildred Bourque Broyles, with the assistance of the other defendants to

this action, had fraudulently purchased two annuities with the decedent’s funds. The

appellants responded to the action claiming that the succession’s claims must first be

submitted to arbitration in accordance with the contracts executed by the decedent.

Following a hearing on the motion seeking to compel arbitration, the trial court

denied the demand for arbitration, citing the relators’ failure to introduce the

agreements containing the arbitration clauses into evidence.

Appellants filed both an application for supervisory review of this ruling

denying the arbitration and an appeal. This court denied the application for writs and

separately affirmed the trial court’s ruling on appeal. See Succession of Bijeaux v.

Broyles, 2006-1172 (La.App. 3 Cir. 2/7/07), 951 So.2d 490.

Meanwhile, in addition to seeking appellate review of the trial court’s ruling,

appellants filed in the trial court a Motion to Reconsider Dilatory Exception of

Prematurity and Motion to Compel Arbitration and Stay Proceeding. Consideration

of this motion was delayed pending this court’s review of the above-referenced

supervisory writ application and appeal. Once this court rendered its rulings, though,

the trial court set the motion for reconsideration for hearing. At the hearing, the trial

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court denied the motion for reconsideration. Once again, appellants have filed an

application for supervisory writs and an appeal from the trial court’s ruling.

Appellants argue that the agreements at issue in this litigation are subject to the

Federal Arbitration Act, 9 U.S.C. §§1, et seq. Appellants assert that since the result

of the trial court’s ruling denying the motion to reconsider is to deny the appellants’

demand for arbitration, federal law mandates that an appeal be permitted from this

ruling. We disagree.

The Louisiana Code of Civil Procedure does not expressly provide for a motion

to reconsider. However, La.Code Civ.P. art. 865 provides that “[e]very pleading shall

be so construed as to do substantial justice. In La.Code Civ.P. art. 5051, the code

further provides that “[t]he articles of this Code are to be construed liberally, and with

due regard for the fact that rules of procedure implement the substantive law and are

not an end in themselves.” In light of the jurisprudential philosophy of liberal

construction of pleadings, in Clement v. American Motorist Ins. Co., 98-504 (La.App.

3 Cir. 2/3/99), 735 So.2d 670, 672, this court set forth the standard for review of a

trial court’s ruling on a motion to reconsider as follows:

Accordingly, the sole issue before us is whether the trial court abused its
discretion in declining to grant the motion to reconsider. As an interlocutory
order, a motion to reconsider is like a motion for new trial. The denial of a
motion for new trial is reviewable only under our supervisory jurisdiction for
abuse of discretion. Cormier v. McDonough, 96-305 (La.App. 3 Cir.
10/23/96); 682 So.2d 814.

Thus, like the denial of a motion for new trial, the review of a denial of a motion to

reconsider is an interlocutory ruling.

The ruling at issue in this appeal is the refusal of the trial court to reconsider

its prior ruling which was affirmed by this court on appeal. Thus, we hold that this

judgment is not a ruling denying a request to compel arbitration and, therefore, is not

subject to the federal law regarding judgments on demands for arbitration.

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Louisiana Code of Civil Procedure Article 2083, recently amended, now

provides the following, “[a]n interlocutory judgment is appealable only when

expressly provided by law.” Under the revised article, a judgment denying a motion

to reconsider is not appealable because it has not expressly been provided by law.

Therefore, this court lacks appellate jurisdiction of this matter. Accordingly, the

appeal is dismissed.

APPEAL DISMISSED.

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