HUTTO v. STATE THROUGH LAW ENFORCEMENT OFFICERS AND FIREMEN SURVIVOR BENEFIT REVIEW BOARD (2020)

Writ application denied.

It is long-standing principle in our jurisprudence that as a general rule, attorney fees are not allowed except when authorized by statute or contract. Killebrew v. Abbott Laboratories, 359 So.2d 1275, 1278 (La. 1978), citing Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); Hernandez v. Harson, on rehearing, 237 La. 389, 111 So.2d 320 (1959). As noted by Justice Genovese in his dissent as well, there is absolutely no contract between the parties and no provision for attorney's fees in the statutes providing for survivor benefits of firemen. SeeLa. R.S. 40:1664-1665.4. Thus, in my view, partial summary judgment on this issue pursuant to La. C.C.P. art. 966(A)(3) is appropriate, and I would therefore grant defendant's writ application and reverse the lower courts’ rulings.

In this suit for firemen's survivor benefits, plaintiff also sought penalties and attorney fees. Defendant, State of Louisiana, through the Law Enforcement Officers and Firemen's Survivor Benefit Review Board, filed a Motion for Partial Summary Judgment, claiming plaintiff is not entitled to penalties and attorney fees. The trial court denied defendant's motion, and the court of appeal denied writs. A majority of this Court simply denied this writ, an action with which I vehemently disagree and can neither rationalize nor justify.

There are no facts in dispute. The issue before this Court is a simple legal question: Is plaintiff, if successful, entitled to penalties and attorney fees? The answer is even more simple: No, she is not. This Court cannot nonchalantly disregard the mandated summary judgment procedure.

It is well-settled that attorney fees are not allowed except where they are authorized by contract or statute. Smith v. State, Dep't of Trans. and Dev., 04-1317, p. 17 (La. 3/11/05), 899 So.2d 516, 527; Huddleston v. Bossier Bank and Trust Co., 475 So.2d 1082 (La. 1985). In this case, there is no contract involved, and it is undisputed that the relevant statutes, La. R.S. 40:1664-1665.4, contain no provision allowing a plaintiff to recover penalties or attorney fees from the Board.

There is no legal authority or justification for not granting defendant's Motion for Partial Summary Judgment. This is exactly what summary judgment was designed for—“to secure the just, speedy, and inexpensive determination of every action․” La. C.C. P. art. 966(A)(2). In a summary judgment proceeding, full or partial, the motion shall be granted, “if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). This is precisely the situation before us. The facts are not disputed; the law does not provide for penalties and attorney fees in a firemen's survivor benefit action; and, the defendant is entitled to summary judgment on that issue—period.

The majority in this case, by denying this writ, has inexplicably and implausibly ignored the core purpose of summary judgment. As a result, defendant must now spend more time, more effort, and more expense defending against a speculative claim for penalties and attorney fees, where none legally exists. The majority's denial of the writ constitutes an aberrance of summary judgment procedure. I would reverse the lower courts and grant defendant's Motion for Partial Summary Judgment.

Crichton, J., would grant and assigns reasons. Genovese, J., would grant and assigns reasons.