150 So. 3d 418
La. Ct. App.2014Background
- Proctor’s Cove II, LLC borrowed $550,000 from First Bank in 2004; Milton Gagnon and Michael Thompson guaranteed the note. After payments, First Bank sued in 2007 asserting a remaining balance (later alleged as $70,706.10).
- Defendants filed reconventional demands alleging a settlement and misapplication of payments; the trial court dismissed those reconventional claims on exceptions. Multiple procedural motions and interventions followed.
- First Bank moved for summary judgment against the LLC and the guarantors in 2012–2013. Defendants did not file opposing memoranda; at the hearing First Bank failed to formally introduce the exhibits attached to its motions.
- The trial court struck pleadings filed by Keith Gagnon on behalf of Proctor’s Cove because he was not a licensed attorney; the court denied that the resulting rulings were absolute nullities.
- The trial court granted summary judgment for First Bank against Proctor’s Cove, Thompson, and Gagnon. On appeal the Fifth Circuit reversed the summary judgments and remanded, but affirmed the striking of pleadings by the non‑attorney.
Issues
| Issue | First Bank's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether trial court properly struck pleadings filed by a non‑attorney (recusal motion) | Striking was proper because Keith Gagnon was not a licensed attorney in violation of La. R.S. 37:213 | Proctor’s Cove claimed right to self‑representation through its member and that striking denied due process | Court: Affirmed striking; non‑attorney may not file pleadings for the LLC here (statutory prohibition applies) |
| Whether summary judgment was appropriate on the promissory‑note claim | Bank argued evidence (affidavit, emails, guaranty) showed default and entitlement to judgment | Defendants argued genuine issues: misapplication/misallocation of payments, existence of settlement, and overpayment creating disputable balance | Court: Reversed summary judgments — First Bank failed to have evidence formally admitted at the hearing under the version of La. C.C.P. art. 966 in effect then; genuine issues remain |
| Whether rulings after the recusal motion are absolute nullities | Bank implied court actions post‑recusal motion were valid | Defendants argued all subsequent orders were void because recusal process was mishandled | Court: Rejected defendants’ claim that subsequent judgments were absolute nullities (because recusal motion was properly stricken) |
| Whether the 2013 amendment to La. C.C.P. art. 966 (deeming attached evidence admitted) applies retroactively on appeal | Bank relied on evidentiary attachments and post‑2013 rule to argue admissibility | Defendants relied on pre‑2013 rule requiring formal admission at hearing | Court: Applied the pre‑2013 version in effect at the hearing (concluding evidence must have been formally admitted); thus evidence attached but not admitted could not be considered |
Key Cases Cited
- First Bank & Trust v. Proctor’s Cove II, LLC, 37 So.3d 1019 (La. App. 5 Cir. 2010) (prior interlocutory history of parties' reconventional demand and appeal posture)
- Glass v. Home Depot U.S.A., Inc., 50 So.3d 832 (La. App. 5 Cir. 2010) (standard of review for summary judgment)
- Cook v. Asbestos Corp., Ltd., 123 So.3d 731 (La. App. 5 Cir. 2013) (evidence attached to motion must be formally admitted at hearing under pre‑2013 art. 966)
- Midland Funding, LLC v. Urrutia, 131 So.3d 474 (La. App. 5 Cir. 2013) (discussing retroactivity of 2013 amendment to art. 966)
- Gutierrez v. State Farm Fire & Cas. Ins. Co., 128 So.3d 509 (La. App. 5 Cir. 2013) (applying the version of art. 966 in effect at the time of the hearing)
- Mason v. T & M Boat Rentals, LLC, 137 So.3d 741 (La. App. 4 Cir. 2014) (holding the 2013 amendment to art. 966 is substantive and not retroactive)