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Varnado v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

April 26, 2017

PATRICIA VARNADO, INDIVIDUALLY AND ON BEHALF TOMMIE R. VARNADO, SR.
v.
CITY OF NEW ORLEANS AND LEONARD D'ARENSBOURG

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-01274, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Jeremy Pichon Roderick "Rico"Alvendia Jeanne K. Demarest Amy C. Fontenot ALVENDIA, KELLY & DEMAREST COUNSEL FOR PLAINTIFF/APPELLEE

          Donna U. Grodner GRODNER LAW FIRM ATTORNEY FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins

          DANIEL L. DYSART, JUDGE

         Kenneth 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.

         BACKGROUND:

         Tommie 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.

         In 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. Varnado's death.

         On 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.

         A 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.

         Prior 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.

         DISCUSSION:

         Mr. Gaunichaux claims that La. Civ. Code art. 2315.1 controls who should receive the damage award for the death of Patricia ...


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