HERMAN SHELTON INDIVIDUALLY AND ON BEHALF OF KEON SHELTON AS GUARDIAN v. RYDER TRUCK RENTAL OLD REPUBLIC INSURANCE COMPANY (2025)

Attorney Latisha Nixon-Jones appeals the trial court's January 14, 2025 judgment, dismissing her petition for intervention seeking to recover attorney's fees and costs she allegedly incurred while representing plaintiffs, Herman Shelton, individually and on behalf of Keon Shelton. The judgment also granted plaintiffs’ motion to disburse attorney's fees, which was filed through their enrolled counsel, Donovan and Lawler. The trial court dismissed Ms. Nixon-Jones’ petition for intervention after she “fail[ed] to appear, prosecute, and produce evidence” at the scheduled trial. Additionally, the trial court granted the motion of plaintiffs’ counsel, who was present at the hearing, to disburse attorney's fees based on the argument presented by counsel. For the following reasons, we affirm the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This matter arises out of a September 20, 2018 motor vehicle accident involving plaintiffs, Herman Shelton and his minor son, Keon Shelton. Following the accident, Mr. Shelton allegedly entered into a contingency fee contract with Ms. Nixon-Jones to represent him and his son in their claim against defendants, Ryder Truck Rental, Old Republic Insurance Company, and Keith Bond. Despite having been ordered to do so, however, Ms. Nixon-Jones failed to present a copy of the alleged contingency fee contract to the trial court and it is not contained in the record on appeal. Nonetheless, the record shows that on September 18, 2019, Ms. Nixon-Jones filed suit on behalf of plaintiffs against defendants.

On April 29, 2024, attorney Peter Donovan, and the law firm of Donovan and Lawler, enrolled as counsel of record for the Sheltons.¹ Trial of the case was originally set for two weeks later on May 13, 2024, and was later continued to September 23, 2024. Prior to trial, Mr. Donovan successfully mediated and resolved the plaintiffs’ case. On July 18, 2024, plaintiffs, through attorney Peter Donovan, filed a motion to disburse attorney's fees, which was originally set for hearing on August 27, 2024. On August 13, 2024, Ms. Nixon-Jones filed a motion for leave to file a petition for intervention, seeking to intervene in plaintiffs’ pending motion to disburse attorney's fees for the purpose of recovering attorney's fees and costs that she allegedly incurred while representing plaintiffs. On the morning of the August 27, 2024 hearing, Ms. Nixon-Jones filed a motion to continue. The trial judge granted Ms. Nixon-Jones’ request for a continuance and reset the matter to October 2, 2024.

On October 2, 2024, plaintiffs’ motion to disburse attorney's fees came for hearing. Both Ms. Nixon-Jones and Mr. Donovan were present. The trial judge converted the hearing into a status conference. At that time, Ms. Nixon-Jones’ petition for intervention was granted without objection from plaintiffs’ counsel, and all pending matters were set for trial on December 9, 2024. According to the trial judge, Ms. Nixon-Jones actively participated in the selection of the December 9, 2024 trial date and expressed no conflict. Additionally, in anticipation of the upcoming trial, the trial judge ordered Ms. Nixon-Jones to produce her billing statements, in addition to any medical records or medical billing statements, and provide them to Mr. Donovan within thirty days.

On November 12, 2024, Ms. Nixon-Jones fax-filed a motion to continue the agreed upon December 9, 2024 trial date. Ms. Nixon-Jones was notified by the trial judge's chambers via email on November 26, 2024—two weeks prior to trial—that her motion to continue would be denied. The original motion was “received via email for [the] record” by the Jefferson Parish clerk's office on November 27, 2024. The trial court formally denied Ms. Nixon-Jones’ motion on December 2, 2024.

The matter proceeded to trial as scheduled on December 9, 2024. Mr. Donovan appeared for trial on behalf of plaintiffs. Ms. Nixon-Jones did not appear, nor did she contact the court regarding her failure to appear. Because there was an ongoing criminal trial in progress, and to provide Ms. Nixon-Jones the chance to appear, the trial judge continued the matter to the following morning. At the trial judge's instructions, her chambers notified Ms. Nixon-Jones via email of the continuance and advised her that the matter was being reset to the following morning, December 10, 2024, in order to afford her the opportunity to appear and pursue her request at that time. Ms. Nixon-Jones responded, requesting that she be allowed to appear remotely, via telephone or Zoom. The trial court denied Nixon-Jones’ request for remote attendance and asked Ms. Nixon-Jones to appear in person. The judge's chambers also notified Mr. Donovan by telephone that the matter was being reset to the following morning, December 10, 2024.

On the morning of December 10, 2024, Mr. Donovan appeared for trial. Again, Ms. Nixon-Jones did not. Due to her failure to appear and prosecute her claim on either December 9 or December 10, 2024, Mr. Donovan made an oral motion for an involuntary dismissal of Nixon-Jones’ petition for intervention. The trial court granted Mr. Donovan's motion and dismissed Ms. Nixon-Jones’ petition. Mr. Donovan then proceeded to present his case to the court on plaintiffs’ motion to disburse attorney's fees. The trial court granted plaintiffs’ motion to disburse attorney's fees and ordered that no funds were to be held for the benefit of Ms. Nixon-Jones or her law firm, stating the following:

[A]t this time the Court finds that there is no evidence before the Court to determine what cost, [Ms. Nixon-Jones] may have incurred, what work she may have done and at this time the Court is going to grant Mr. Donovan's motion to disburse attorney's fees and order that no funds be held in the registry of the Court for Ms. Nixon-Jones. No percentage be set aside because the Court has no evidence to determine what the appropriate amount is on either of those fronts, I don't know what the costa [sic] are, I don't know what work she did, she didn't appear.

This appeal timely followed.

ASSIGNMENTS OF ERROR

Ms. Nixon-Jones avers the trial court committed reversible error in (1) rescheduling the December 9, 2024 trial through ex parte communication with opposing counsel without timely notice to her, violating due process; (2) failing to consider her pretrial memorandum supporting her claim; (3) denying her motion to continue the trial; and (4) dismissing her motion for attorney's fees for failure to appear and prosecute despite prior agreement and judicial disposition.

DISCUSSION

Rescheduling of the Trial Date

Ms. Nixon-Jones avers that on December 9, 2024, the trial court “reset the hearing on its own motion, following an ex parte call with Plaintiff's counsel, without contemporaneous or sufficient notice to [her],” violating her due process rights. Specifically, Ms. Nixon-Jones contends the trial court coordinated and confirmed the new December 10, 2024 trial date with Mr. Donovan through a phone call, and only then gave notice to her via email. She further contends the trial court was aware that she lived out-of-state, yet denied her request to appear remotely for the December 10, 2024 trial, and then proceeded with the hearing without affording her the opportunity to be heard and present her case.

Plaintiff's counsel responds that the record does not support Ms. Nixon-Jones’ “specious” contentions. In particular, Mr. Donovan asserts, and the record confirms, that he appeared for the scheduled trial on December 9, 2024, and Ms. Nixon-Jones, who was aware two weeks prior that her motion to continue the trial would be denied, not only failed to appear, she did not contact him or the court to advise of her absence or the reason(s) therefor. The minute entry from December 9, 2024, provides the following, in part:

Attorney Peter Donovan appeared in open court on the morning of trial and Ms. Nixon Jones did not appear. Mr. Donovan was asked to return for 1pm for the start of trial as the court was in the middle of an ongoing criminal matter which began on 12/6/2024. At noon, the clerk called Mr. Donovan to inform him that the criminal trial would be continuing through the afternoon and that this matter would be reset to Tuesday December 10[,] 2024 at 9AM. Immediately thereafter, the clerk notified both counsel via email that the trial on the request to disburse attorneys fees [into which Ms. Nixon-Jones had intervened] would roll to tomorrow, 12/10/24. Counsel Latisha Nixon Jones (P3) did not appear in open court nor did she contact the court regarding her appearance today.

Ms. Nixon-Jones fax-filed a motion to continue on 11/12/24 and the original pleading was received on 11/27/24. The motion to continue was denied on December 2, 2024 and a copy was sent to Ms. Nixon-Jones. Counsel was notified that the continuance would be denied.2 Ms. Nixon-Jones requested a status conference with the court but did not follow up on scheduling the conference.

Ms. Nixon-Jones fax-filed her pre-trial order but the court cannot consider the pre-trial memorandum or attached exhibits until the original pleading is received by the clerk's office and filed into the record.

It is clear from the record that the trial court did not engage in ex parte communications with Mr. Donovan and did not “coordinate” with him the new trial date, as alleged by Ms. Nixon-Jones. Instead, the minute entry confirms that the trial court contacted Mr. Donovan via telephone to instruct him not to return to court at 1:00 p.m. to commence trial on his motion as previously instructed in open court, and to advise that, because of the ongoing criminal matter, the trial judge had “rolled to” the following morning, the motion to disburse attorney's fees and Ms. Nixon-Jones’ petition for intervention. We find the trial court clearly did not “violate due process” by continuing the December 9, 2024 trial to the following morning, given the ongoing criminal matter. This assignment of error is without merit.

Ms. Nixon-Jones’ Pre-Trial Memorandum

Ms. Nixon-Jones alleges the trial court erred when it failed to consider her pre-trial memorandum, with attached exhibits, “which was properly filed and provided a detailed, unrebutted record of legal services rendered over the course of representation.” We disagree.

The record reflects that Ms. Nixon-Jones’ pre-trial memorandum and attachments were fax-filed at 3:39 p.m. on Friday afternoon, December 6, 2024, before the Monday trial date, December 9, 2024. The original memorandum was not received by the clerk's office and filed into the record until ten working days later on Friday, December 20, 2024, at 9:45 a.m.—after the trial had already taken place and judgment orally rendered.

Pursuant to La. R.S. 13:850(A), “the facsimile filing shall have the same force and effect as filing the original document, if the party complies with Subsection B of this Section.” [Emphasis added.] Pursuant to Subsection B, Ms. Nixon-Jones had “[w]ithin seven days, exclusive of legal holidays, after the clerk of court receive[d] the facsimile filing,” to deliver to the clerk of court the original pre-trial memorandum and attachments and the fees for the facsimile filing. La. R.S. 13:850(C), provides that “if the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect.” [Emphasis added.] Pursuant to La. R.S. 13:850(C), because the original of Ms. Nixon-Jones’ pre-trial memorandum and attachments were not received timely, the fax filing date of December 6, 2024, was without force or effect. We find the trial court properly did not consider her pre-trial memorandum. This assignment of error is without merit.

Motion to Continue the December 9, 2024 Trial Date

Ms. Nixon-Jones argues the trial court abused its discretion by denying her motion to continue the trial date. According to Ms. Nixon-Jones, her motion was filed on “good faith grounds,” based on a conflict with other work obligations out-of-state, and that no opposition was filed by plaintiffs’ counsel or prejudice asserted. Ms. Nixon-Jones avers the trial court's denial of her motion to continue was arbitrary, with no reasons given, and thus, constitutes reversible error.

In response, Mr. Donovan avers the trial court did not abuse its discretion in denying Ms. Nixon-Jones’ motion to continue as the hearing on his motion to disburse attorney's fees had twice been previously set. The matter was originally set for hearing on August 27, 2024, and was continued to October 2, 2024, to accommodate Ms. Nixon-Jones. At the hearing on October 2, 2024, which the trial court converted to a status conference, Mr. Donovan did not object to the trial court's granting of Ms. Nixon-Jones’ motion for leave to file her petition for intervention into his previously filed motion to disburse attorney's fees. Together with the trial judge, he and Ms. Nixon-Jones voluntarily agreed to the December 9, 2024 trial date to adjudicate both the motion to disburse attorney's fees and the merits of Ms. Nixon-Jones’ petition for intervention. Further, Mr. Donovan argues that Ms. Nixon-Jones was notified by the trial court on November 26, 2024, two weeks prior to trial, that her motion to continue was going to be denied. For these reasons, Mr. Donovan contends the trial court did not abuse its vast discretion in denying Ms. Nixon-Jones’ motion to continue. We agree.

Great deference is afforded to the trial judge in making pre-trial rulings, particularly a motion to continue trial, and absent a clear showing of an abuse of that discretion, the trial court's ruling will not be disturbed on appeal. See La. C.C.P. art. 1601; Newsome v. Homer Mem. Med. Ctr., 10-564 (La. 4/9/10), 32 So.3d 800; Krepps v. Hindelang, 97-980 (La. App. 5 Cir. 4/15/98), 713 So.2d 519, 526-27. A trial judge has wide discretion in the control of his docket, in case management, and in determining whether a motion for continuance should be granted. Krepps, 713 So.2d at 527. In deciding whether or not to grant a motion for continuance, the trial court may consider such factors as diligence, good faith, reasonable grounds, fairness to both parties, and the need for the orderly administration of justice. Shiver v. Lafayette City-Parish Consol. Government, 14-760 (La. App. 3 Cir. 12/10/14), 154 So.3d 789, 791. Of course, the discretion vested with the trial court to decide a motion to continue is not absolute nor may that discretion be exercised arbitrarily. Sauce v. Bussell, 298 So.2d 832, 834 (La. 1974). The reviewing court may disturb that ruling in what are considered extreme cases. Wilkerson v. Darden Direct Distribution, Inc., 53,263 (La. App. 2 Cir. 3/4/20), 293 So.3d 146, 154.

Our review of the record indicates that no extreme case existed here. The record is devoid of acts of diligence, good faith, or reasonable grounds on the part of Ms. Nixon-Jones to support her motion to continue trial. Although Ms. Nixon-Jones claims that she had a conflict with depositions in a different matter and professional work obligations out of state, the trial judge stated that on October 2, 2024, two months prior to trial, Ms. Nixon-Jones was present and participated in the selection of the December 9, 2024 trial date, and was given oral notice of same. Moreover, a review of her motion to continue indicates that, while Ms. Nixon-Jones referenced the work-trip obligations out of state, she did not assert that she had a “conflict with depositions in another matter” as she argues in her brief on appeal. This begs the question of whether there actually was a conflict with depositions in a different matter, and if so, whether Ms. Nixon-Jones either should have known of those conflicts on October 2, 2024, when she voluntarily selected the trial date, or whether those deposition dates were actually chosen after Ms. Nixon-Jones had voluntarily agreed to the trial date set in the instant matter.

Further, as to the alleged conflict with other work-related obligations out of state, Ms. Nixon-Jones neither specified to the court what those obligations were, other than to state that she had “a work trip to Europe, which was scheduled prior to the Court's setting of the trial date,” and “three additional work-related trips in November and December, making it difficult to be physically present in Louisiana to adequately prepare for deposition and trial.” [Emphasis supplied.] Ms. Nixon-Jones did not say that she could not be physically present for trial, only that it would be difficult to be physically present. Again, Ms. Nixon-Jones was present and participated in selecting the December 9, 2024 trial date, at which time she did not express any conflict or objection.

After review, we find that under the circumstances, it was within the trial judge's vast discretion to deny Ms. Nixon-Jones’ motion to continue trial and that this is not an instance whereby this Court should disturb that ruling. This assignment of error is without merit.

Dismissal of the Petition for Intervention

Ms. Nixon-Jones avers that even if the trial court's denial of the continuance was proper, its decision to dismiss her motion for attorney's fees was excessive and punitive. Ms. Nixon-Jones further avers the trial court's dismissal of her “intervention was fundamentally flawed because opposing counsel expressly stated during the October 2, 2024 hearing that he did not oppose” her intervention, which statement “operates as a binding judicial admission.”

We find no merit to Ms. Nixon-Jones’ argument. While plaintiff's counsel lodged no objection on October 2, 2024, to Ms. Nixon-Jones’ petition seeking to intervene in his motion for disbursement of attorney's fees—which petition the trial court deemed as merely an opposition to Mr. Donovan's motion—she still bore the burden of proving the merits of her petition and of establishing what attorney's fees and costs she was allegedly owed. Ms. Nixon-Jones apparently understood this as evidenced by her filing of the pre-trial memorandum and attachments, which she alleges on appeal “provided a detailed, unrebutted record of legal services rendered over the course of representation,” including “documentation showing 257 hours of work, [and] 271 emails coordinating medical care and client communication.”

Further, although Mr. Donovan acknowledged that Ms. Nixon-Jones may have been owed attorney's fees and costs, we find—as did the trial court—that the record is devoid of any information establishing what, if any, amounts she may have been due. The alleged contingency-fee contract between Ms. Nixon-Jones and the Sheltons was never produced, thus the trial court—nor this Court—had any way of knowing the terms of her alleged representation of the Sheltons; i.e., whether they agreed to an hourly fee or a contingency fee, as she alleges. The only indication of work performed by Ms. Nixon-Jones was contained in her self-serving pre-trial memorandum, which was not timely or properly filed and, thus, was not considered by the trial court.³ Moreover, Ms. Nixon-Jones, nor any representative of L.N. Jones Law Firm, LLC, made an appearance, brought forth witnesses, or admitted into evidence any documents, to prove the legal services Ms. Nixon-Jones alleges she rendered and/or the costs she claims she is owed. Ms. Nixon-Jones was notified that the trial was not going to be continued and she made no effort to attend or have another attorney argue and present evidence and testimony on her behalf.⁴

Louisiana Code of Civil Procedure Article 1672(A) provides that a judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice. The trial court has much discretion in determining whether a motion for dismissal should be granted. See La. C.C.P. art. 1672(A); LaBranche v. Landry, 23-1358 (La. App. 1 Cir. 8/20/24), 395 So.3d 303.

In, LaBranche, the trial court set for hearing all pending matters, including all pending motions and documents filed by Mr. LaBranche. When Mr. LaBranche failed to appear for the hearing, the Attorney General requested that Mr. LaBranche's case be dismissed. The trial court granted the request, stating that it would dismiss the case and cast Mr. LaBranche with costs of the proceedings. The appellate court affirmed finding that the dismissal of Mr. LaBranche's dismissal was proper pursuant to La. C.C.P. art. 1672(A)(1).

In Samanie & Barnes v. Lawler, 619 So.2d 1166 (La. App.1 Cir. 1993), acting pursuant to La. C.C.P. art. 1672, the trial court dismissed the defendant's proceeding to determine reimbursement for attorney's fees after the defendant failed to attend the hearing scheduled on the matter. The appellate court affirmed, finding no abuse of the trial court's discretion given that the defendant, nor his counsel, appeared for the trial. Id. at 1169. The court stated that dismissal can be made on application of any party when plaintiff fails to appear on the day set for trial and when that appearance may be personally or through attorney. Id.

Similarly, in Colomb v. State Farm Ins. Companies, 02-1279 (La. App. 3 Cir. 3/5/03), 839 So.2d 1121, the appellate court held that the trial court was warranted in dismissing a personal injury claim, as well as the worker's compensation insurer's intervention, where no valid reason existed on record for the motorist's absence at trial. Id.

In the instant case, Ms. Nixon-Jones failed to appear for either the December 9, 2024 or December 10, 2024 trial. Consequently, pursuant to La. C.C.P. art. 1672(A), the trial court properly granted the request of plaintiffs’ counsel for an involuntary dismissal of Ms. Nixon-Jones’ petition for intervention due to her failure to appear, prosecute, and bring forth evidence of her claim. The trial court did not clearly abuse its discretion by dismissing this action after neither Ms. Nixon-Jones nor anyone from her law firm appeared for trial.

CONCLUSION

For the foregoing reasons, the trial court's judgment dismissing Ms. Nixon-Jones’ petition for intervention and granting plaintiffs’ motion to disburse attorney's fees is affirmed.

AFFIRMED

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. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

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 NOVEMBER 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

25-CA-234

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE JACQUELINE F. MALONEY (DISTRICT JUDGE)

P. M. DONOVAN (APPELLEE)

EMMA M. BARTON (APPELLEE)

ROSS M. REBOUL (APPELLEE)

KYLE P. KIRSCH (APPELLEE)

LATISHA L. NIXON-JONES (APPELLANT)

MAILED

FOOTNOTES

1.   Although the record does not contain a formal motion filed by Ms. Nixon-Jones to withdraw as counsel of record for the Sheltons, the transcript reveals that in October 2021, Ms. Nixon-Jones notified Mr. Shelton via email that she was withdrawing as counsel from her remaining personal injury cases in Louisiana, including the Sheltons’ case, and that the Sheltons would need to obtain new counsel withinthirty days. The transcript further indicates that from 2021 until some point in 2024, Ms. Nixon-Jones was voluntarily ineligible to practice law in the State of Louisiana, due to a conflict of interests with out-of-state work commitments.

2.   The December 10, 2024 transcript provides the following:COURT: My clerk notified [Ms. Nixon-Jones] on Tuesday, November 26, 2024, that I would deny the motion to continue once the original was received and that the matter would be heard on December 9, 2024, which was yesterday. Ms. Nixon-Jones received that Email and responded to it on November 26, 2024, at 2:02 p.m. indicating that she wanted to know the reason why the continuance would be denied. The Court through the clerk, offered to have a phone conference with all counsel in this case to discuss this trial date and Ms. Nixon-Jones never responded and never scheduled any sort of conference, phone conference or zoom conference to discuss this trial or the fact that her motion had been denied, but she was fully aware the motion was going to be denied once the original was received.

3.   Ms. Nixon-Jones’ representation of the Sheltons during the four years this case was pending is further complicated by the fact that, as the record reveals, for approximately three of those four years, she was admittedly ineligible to practice law in the state of Louisiana.

4.   While the trial court has discretion in determining the amount of attorney's fees based on its own knowledge, the evidence, and its observation of the case and the record, there is nothing in the record to support the extent of the services Ms. Nixon-Jones claims she rendered on behalf of the Sheltons. See Busters Frozen Custard, LLC v. Lancaster Mfg., Inc., 15-947 (La. App. 3 Cir. 4/27/16), 190 So.3d 1239, 1256 (citing Stanley v. Crowell & Owens, LLC,, 15-395 (La. App. 3 Cir. 10/7/15), 175 So.3d 1204, 1207-08, writ denied, 15-2035 (La. 1/18/16), 184 So.3d 694).

SUSAN M. CHEHARDY CHIEF JUDGE