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Harris v. Union National Fire Insurance Co.

Court of Appeals of Louisiana, First Circuit

June 18, 2015

JERRY HARRIS AND ELNORA HARRIS
v.
UNION NATIONAL FIRE INSURANCE COMPANY

Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No. 136690 The Honorable Wayne Ray Chutz, Judge Presiding

Kent A. Lambert Katie L. Dysart Carnalla M. Kimbrough New Orleans, Louisiana Counsel for Defendant/ Appellant Bank of New York Mellon, Successor-in-Interest to JP Morgan Chase Bank as Trustee for the Registered Holder of Novastar Mortgage Funding Trust Series 2003-3 Novastar Home Equity Loan Asset-Backed Certificates Series 2003-3 and Ocwen Loan Servicing, LLC

DeVan Pardue Springfield, Louisiana Counsel for Plaintiffs/ Appellees Jerry Harris and Elnora Harris

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

THERIOT, J.

Bank of New York Mellon, successor-in-interest of J P Morgan Chase Bank as Trustee for the Registered Holder of Novastar Mortgage Funding Trust Series 2003-3 Novastar Home Equity Loan Asset-backed Certificates Series 2003-3 and Ocwen Loan Servicing, LLC (collectively, Defendants) appeal the trial court's judgment; allowing the plaintiffs, Jerry and Elnora Harris (Harrises), to file a pleading entitled "Second Amended Petition" without a contradictory hearing; imposing sanctions against Defendants; and challenging the judgment for not having a Rule 9.5 Certificate. Finding that it is impossible to determine whether the pleading entitled "Second Amended Petition" constitutes an amended petition or a supplemental petition, and that only the procedural requirements for an amended petition were met, we remand this matter to the trial court for a contradictory hearing to determine the nature of Harrises pleading.

FACTS AND PROCEDURAL HISTORY

The Harrises home located in Springfield, Louisiana, burned down on April 3, 2011. On April 3, 2012, the Harrises filed suit against the first named defendant, Union National Fire Insurance Company, seeking payment of the policy limits, penalties, and attorney fees. The Petition specifically provided:

WHEREFORE, plaintiffs pray that after due proceedings had, there be judgment in their favor and against the defendant in the full sum of Forty Thousand and No/100 Dollars, ($40, 000, 000), being the face amount of the policy, together with statutory penalties and attorneys fees, which will not exceed the amount of $75, 000.00 total, for the willful and capricious failure to pay the policy amount after being furnished all documents requested of the plaintiffs in this matter, all together with legal interest from the date of judicial demand and all costs of these proceedings.

The Harrises' Amended Petition was filed on April 9, 2012, and added the Defendants as parties to the suit. The Amended Petition further alleged that Defendants engaged in predatory lending and fraudulent practices for requiring inadequate amounts of insurance and for foreclosing on the property despite their having the amount of insurance the realtors required. The Harrises claimed special damages and general damages for mental anguish and damage to their credit together with attorney fees. Pertinent to this appeal, the Amended Petition added the following paragraph, numbered ''7''.

The total amount of damages sought by plaintiffs against all defendants will not exceed the amount of $75, 000.00, including attorneys fees and interest.

Defendants subsequently filed exceptions and answered the Petition and Amended Petition on June 5, 2012.

On November 15, 2013, the Harrises filed their Second Amended Petition. The Second Amended Petition included the language, "adding Paragraph 7-A to read as follows":

The total amount of damages sought by Plaintiffs against all Defendants will exceed the amount of $75, 000.00 including attorneys fees, interest and penalties; and Plaintiffs are ...

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