KAREN GAUTREAUX AND DESTINY GAUTREAUX v. JOHN DOE STIRGUS FATHER TUTOR OF THE MINOR CHILD DAVON RASHARD STIRGUS DRIVER OF THE VEHICLE MICHELLE GREEN AND THEIR LIABILITY INSURANCE CARRIER ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY (2025)

Appellant/defendant, Allstate Property and Casualty Insurance Company, appeals the trial court's January 18, 2024 judgment granting appellee/plaintiff Karen Gautreaux's motion for attorney's fees and costs. For the reasons that follow, we vacate the trial court's January 18, 2024 judgment and remand for further proceedings.

FACTS and PROCEDURAL HISTORY

On May 25, 2021, plaintiff Karen Gautreaux and her granddaughter, Destiny Gautreaux, were involved in a motor vehicle accident in LaPlace, in St. John the Baptist Parish. On May 20, 2022, plaintiff filed a lawsuit against defendants, John Doe Stirgus, as the natural tutor of the minor child, Davon Rashard Stirgus, Michelle Green, and their liability insurer, Allstate Property and Casualty Insurance Company (“Allstate”). Plaintiff subsequently entered into a settlement agreement with defendant, Allstate, wherein plaintiff Karen Gautreaux was to be paid the sum of Fifteen Thousand and 00/100 Dollars ($15,000.00) for a release of the defendants.

On October 2, 2023, plaintiff filed a “Motion for Attorney Fees Pursuant to LA R.S. 22:1973, Subsection A & B(2).” In the motion, plaintiff contended that on December 29, 2022, counsel for Allstate, Christopher Lawler, mailed a settlement check in the amount of Fifteen Thousand and 00/100 Dollars ($15,000.00) to settle plaintiff, Karen's claim with Allstate. The check was payable to Karen Gautreaux, the Faucheux Law Firm, and Medicare. The motion asserted counsel for plaintiff advised counsel for Allstate that their office was waiting for Medicare to advise them of the amount owed to Medicare. The motion asserted that on August 16, 2023, counsel for plaintiff received a letter from the Centers for Medicare and Medicaid Services advising the case had been reviewed, the case was resolved, and Karen Gautreaux did not owe any money to Medicare. Counsel for plaintiff contended he then advised counsel for Allstate, Peter Donovan, by email that Medicare should not be listed as a payee on the check, because Medicare was not owed any money, and requested a new check to be issued with only plaintiff and plaintiff's counsel's names listed as the payee. The motion additionally stated that plaintiff's counsel contacted Allstate's counsel several times, including an email sent on August 17, 2023 to Peter Donovan; an email sent on August 19, 2023, an email sent on September 21, 2023; and a phone call “to the secretary,” inquiring when the new check would be received. The motion further stated that counsel for plaintiff was advised on August 18, 2023 that another check was being issued with the proper payees and it would be arriving shortly; however, it has not arrived. The motion asserted that Allstate knowingly failed to pay a settlement within thirty days after an agreement was reduced to writing, constituting a breach of the insurer's duties under La. R.S. 22:1973 A & B. As a result, the motion stated plaintiff seeks to be awarded attorney's fees, penalties and costs pursuant to La. R.S. 22:1973 A & B(2). Plaintiff attached the following documents to the motion: (1) a letter dated December 29, 2022, which contained the settlement check payable to Karen Gautreaux, the Faucheux Firm, and Medicare; (2) emails sent to counsel for Allstate and Allstate's response that another check was being issued; and (3) the letter regarding Medicare.

A review of the record shows the following relevant facts regarding service of the motion on Allstate. A rule to show cause order setting the motion for attorney's fees on October 26, 2023, was filed on October 2, 2023, presumably with the motion for attorney fees. The October 2, 2023 order is not signed by the trial court. On October 25, 2023, another rule to show cause order setting the motion for attorney's fees on November 9, 2023 was filed. The order requested that the motion be served “Certified Mail Pursuant to CCP Art. 1313” on “Sean Donovan, Esq., Donovan & Lawler, APLC, 4640 Rye Street, Metairie, LA 70006.” This order is also not signed by the trial court. The record contains another copy of the rule to show cause order filed on October 2, 2023, wherein the trial court scratched out the October 26, 2023 date, and set the matter for November 9, 2023. The motion was signed by the trial court on October 27, 2023. The motion requested service on counsel for Allstate, “Sean Donovan,” by certified mail pursuant to La. C.C.P. art. 1313.

The transcript of the November 9, 2023 hearing shows that plaintiff's counsel was present but counsel for Allstate was absent. The case was called, counsel for plaintiff introduced himself, and the following exchange occurred:

The Court:

Have you been in touch with Mr. Lawler?

Mr. Faucheux:

I have called him and have not heard back from him. Your Honor, as you can see, there were checks issued in this matter, but they were issued to Ms. Gautreaux, myself and Medicare.

The Court:

Okay

Mr. Faucheux:

Those were returned and there's been emails back and forth since that time where they have said that they were mailing us or hand delivering to us the check with just her name and my name on it. That never has occurred.

The Court:

Okay.

Mr. Faucheux:

So what we're doing since more than 30 days has passed since all of that has occurred, is asking for attorney's fees under Louisiana Revised Statute Article [sic] 22:1973; Subsection A & B(2).

The Court:

All right. Let me just confirm. There was service, it looks like service of process?

The Clerk:

It was going to be served Article 1313, Certified Mail.

Mr. Faucheux:

Your Honor, that was sent out on November 1st of 2023 and we have the receipt for all of that and the tracking number, but we haven't gotten the green card back.

The Court:

Okay. Do you have any major representations on the record. The one thing that the Court will need in order to render a judgment will be the –

Mr. Faucheux:

The green card.

The Court:

Correct.

Mr. Faucheux:

Okay.

The Court:

So can you supplement the record and maybe file that once you've gotten a return on the green card?

Mr. Faucheux:

I will, Your Honor.

The Court:

I appreciate that.

Mr. Faucheux:

And do you want me [sic] prepare the judgment?

The Court:

You can prepare the judgment as well. I just need to have the documentation of service.

Mr. Faucheux:

Now, should I put the settlement statement in there for the amounts that would be due to the client after attorney's fees have been deducted and court cost?

The Court:

You can -- if the terms of the settlement are publishable –

Mr. Faucheux:

Yeah. It's just limited power –

The Court:

Okay. That's fine. You can include that information Mr. Faucheux. Do you want to maybe submit that within the next ten business days?

Mr. Faucheux:

Yes, ma'am.

The Court:

Okay.

Mr. Faucheux:

Your Honor, the settlement statement, I will submit that as Exhibit Number 2 and the green card will be Exhibit Number 1.

The Court:

All right. Thank you. Is there anything further?

Mr. Faucheux

That's it, Your Honor.

The Court:

Thank you.

The trial court issued a written judgment on January 18, 2024, rendering judgment in favor of plaintiff and ordering Allstate to pay plaintiff Karen Gautreaux the sum of Five Thousand Two Hundred Fifty and 00/100 Dollars ($5,250.00) in attorney's fees and Six Hundred Ninety and 44/100 Dollars ($690.44) in court costs. Notice of Judgment was issued to Allstate and counsel for plaintiff on January 19, 2024. Allstate was served with the judgment on January 25, 2024.

Allstate filed the instant timely suspensive appeal.

LEGAL ANALYSIS

On appeal, Allstate asserts the following assignments of error: (1) the trial court erred in awarding attorney's fees and costs to plaintiff because plaintiff failed to execute proper service and notice of the motion; (2) the trial court erred in awarding attorney's fees and costs to plaintiff because plaintiff failed to present a prima facie case and sufficient evidence for the relief sought; and (3) the trial court erred in rendering a judgment against Allstate when plaintiff failed to establish that Allstate breached La. R.S. 22:1973 A & B(2).

Due to the procedural defects as stated herein, the January 18, 2024 is vacated and the matter is remanded for further proceedings.

La. C.C.P. art. 963 provides, in pertinent part:

B. If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

Additionally, Rule 9.8 of Louisiana's District Court Rules provides in pertinent part:

(a) Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, shall be accompanied by a proposed order requesting that the exception or motion be set for hearing․

***

(c) Time between filing and hearing. In cases other than juvenile and family law proceedings, no hearing on an exception or motion will be scheduled until at least fifteen calendar days after filing. A party seeking to have an exception or motion heard less than fifteen days after filing shall show good cause and shall state in the exception or motion the reasons why an expedited hearing is necessary. [Emphasis in original and added.]

Further, Rule 9.9 of Louisiana's District Court Rules provides, in pertinent part:

(b) ․ The memorandum for motions and exceptions, other than motions for summary judgment, shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time․

(c) ․ A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum so it is received at least eight calendar days before the scheduled hearing ․ [Emphasis added.]

Underlying La. C.C.P. art. 963 and La. District Court Rules, Rules 9.8 and 9.9 is a fundamental tenet of our justice system: the protection of a litigant's right to notice and an opportunity to be heard. Renaudin v. Bosworth, 23-499 (La. App. 5 Cir. 08/14/24), 398 So.3d 139, 142. The record shows that plaintiff did not request or show good cause for setting the hearing fewer than 15 days after filing, and the order setting the hearing was not served timely so that it was received by Allstate at least 15 days before the hearing. Because of the untimely service, Allstate was not able to file an opposition at least eight days before the hearing. Accordingly, upon review, we find plaintiff's motion for attorney's fees did not satisfy the requirements of La. C.C.P. art. 963 or La. District Court Rules, Rules 9.8 and 9.9, as it was not filed, set, or served on Allstate in a proper and timely manner nor did it provide Allstate sufficient notice and an opportunity to be heard.

Here, although the motion was filed October 2, 2023, the trial court did not sign the order setting the motion for hearing until October 27, 2023, and the motion was set for hearing on November 9, 2023. At the hearing, counsel for plaintiff stated that he mailed the order setting the motion for hearing to counsel for Allstate, pursuant to La. C.C.P. art. 1313, on November 1, 2023. However, plaintiff's counsel stated he did not have the green card showing service. It is undisputed that as of the date of the hearing, the record was void of any evidence that Allstate was served with the motion. Despite the absence of proof of service, the trial court allowed plaintiff to argue the motion and ultimately granted the motion.

As to the issue of service, the trial court attempted to correct the absence of service in the record by allowing plaintiff to supplement the record with the green card after the hearing once it was received by plaintiff's counsel. The record shows that the green card evidencing proof of service was placed in the record in January 2024, a few months after the hearing. The green card shows that counsel for Allstate received notice of the hearing on November 9, 2023, the day of the hearing. Thus, it is possible and highly likely that Allstate did not receive service and notice of the hearing until after judgment was rendered granting plaintiff's motion for attorney's fees. Regardless of the time of day it was received on November 9, 2023, the service was not timely. Allstate was clearly not served by certified mail at least 15 days prior to the hearing and was not given the opportunity to file an opposition or defend against the motion. Obviously, service on the date of a hearing completely deprives the responding party of the most fundamental components of due process: notice, and the opportunity for a hearing and to be heard.

Furthermore, we find plaintiff did not meet her burden of proof as to the merits of the motion for attorney's fees. No evidence was authenticated, offered or introduced into evidence at the hearing. Instead, the trial court granted the motion after receiving only a brief unsworn statement by plaintiff's counsel that a check was issued to plaintiff, plaintiff's counsel and Medicare, the check was returned, emails were sent between the parties and Allstate said they were sending new check, plaintiff has not received the new check, more than 30 days have passed, and plaintiff is entitled to attorney's fees under La. R.S. 22:1973 A & B(2). Not only did plaintiff's counsel not introduce any evidence referred to in his unsworn statement to the trial court regarding the facts of this case, he did not even introduce the insurance policy or the settlement agreement entered into by the parties. After the trial court granted the motion, plaintiff's counsel requested to place in the record a settlement statement prepared by him, which included the settlement amount minus requested attorney's fees and costs. Plaintiff's counsel offered no testimony or evidence as to the alleged amounts for attorney's fees and costs that were included on the settlement statement he prepared. No other proof was provided by plaintiff to establish entitlement to attorney's fees, if any, under La. R.S. 22:1973. Therefore, not only was service not proper or timely, plaintiff did not meet her burden of proving entitlement to attorney's fees and costs.

DECREE

Accordingly, for the reasons stated herein, we vacate the trial court's January 18, 2024 judgment and remand for further proceedings.

VACATED and REMANDED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 12, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-284

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

40TH DISTRICT COURT (CLERK)

HONORABLE NGHANA LEWIS (DISTRICT JUDGE)

JAMES L. DONOVAN, JR. (APPELLANT)

ROBERT R. FAUCHEUX, JR. (APPELLEE)

MAILED

P. M. DONOVAN (APPELLANT)

SEAN M. DONOVAN (APPELLANT)

ATTORNEYS AT LAW

4640 RYE STREET

METAIRIE, LA 70006

STEPHEN J. WINDHORST JUDGE