PATRICIA VARNADO, INDIVIDUALLY AND ON BEHALF TOMMIE R. VARNADO, SR.
CITY OF NEW ORLEANS AND LEONARD D'ARENSBOURG
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-01274,
DIVISION "L-6" Honorable Kern A. Reese, Judge
Pichon Roderick "Rico"Alvendia Jeanne K. Demarest
Amy C. Fontenot ALVENDIA, KELLY & DEMAREST COUNSEL FOR
U. Grodner GRODNER LAW FIRM ATTORNEY FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Sandra Cabrina Jenkins
L. DYSART, JUDGE
Gaunichaux appeals a judgment of the trial court whereby
Melvin Owens, Jr., was determined to be the proper party to
be substituted as plaintiff in the captioned lawsuit. For the
reasons that follow, we affirm the judgment.
Varnado was killed in an accident on the Crescent City
Connection in New Orleans in 2004. His widow, Patricia
Varnado, filed a wrongful death and survival action lawsuit
against various parties, including the Louisiana Department
of Transportation and Development ("DOTD"). Mr.
Varnado's adult children from a prior relationship also
filed suit. The two lawsuits were consolidated; however, the
adult children settled with defendants, leaving only Mrs.
Varnado's claims. In December of 2012, Mrs. Varnado
agreed to settle with DOTD, but prior to the trial court
signing a consent judgment memorializing the settlement, Mrs.
Varnado died on March 10, 2013. The trial court signed a
Consent Judgment on March 20, 2013.
November 2013, Kenneth John Gaunichaux, filed a motion to
substitute himself as the proper party plaintiff in place of
Mrs. Varnado. He alleged that he and Mrs. Varnado were
married in 2006, and attached a copy of a marriage
certificate to his motion. He argued that he was entitled to
recover the settlement proceeds pursuant to La. Civ. Code
art. 2315.1. On November 13, 2013, the trial court signed an
order allowing Mr. Gaunichaux to be substituted as party
plaintiff. However, prior to distributing the settlement
funds to Mr. Gaunichaux, the DOTD questioned the validity of
the consent judgment, as it was signed after Mrs.
February 9, 2015, Melvin J. Owens, Jr., filed a Motion to
Vacate and Set Aside the Motion and Order to Substitute Party
Plaintiff, Patricia Varnado with Kenneth John Gaunichaux and
Motion and Order to Substitute Party Plaintiff, Patricia
Varnado with Melvin J. Owens, Jr. The motions set forth that
Patricia Varnado died intestate on March 10, 2013. Further,
the motions state that all damages awarded to her as the
widow of Tommie Varnado are her separate property, as the
damages are the result of an accident that occurred prior to
her marriage to Mr. Gaunichaux. Melvin J. Owens asserts that
as the sole heir of Patricia Varnado, he is the proper party
to represent her in the underlying lawsuit and the proper
party to receive the damage award. In further support for
vacating the motion substituting Mr. Gaunichaux as party
plaintiff, Mr. Owens argues that the motion filed by Mr.
Gaunichaux was defective in that it was not supported by a
death certificate and an affidavit of the moving party.
hearing was held on December 4, 2015 on the various
outstanding motions filed by the parties. After hearing
argument from counsel, the trial court ruled that Melvin J.
Owens, Jr., was the property party to receive the settlement
proceeds of the underlying lawsuit. A judgment was prepared
and signed January 4, 2016.
to signing the judgment, Mr. Gaunichaux filed a Motion for
Reconsideration, which was heard on January 15, 2016. The
trial court noted that the code of procedure does not
recognize a "motion for reconsideration, " but that
it would consider it as a motion for new trial. The trial
court signed a judgment denying the motion on June 21, 2016.
This appeal was filed timely.
Gaunichaux claims that La. Civ. Code art. 2315.1 controls who
should receive the damage award for the death of Patricia