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Calogero v. USA Agencies Casualty Insurance Company, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 4, 2019

GERALD J. CALOGERO
v.
USA AGENCIES CASUALTY INSURANCE COMPANY, INC.

          APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2014-01733-F, SECTION "A" Honorable Monique G. Morial, Judge

          Vincent J. Glorioso, Jr. Vincent J. Glorioso, III THE GLORIOSO LAW FIRM -AND- Stephanie A. Fratello-Adams ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT.

          Matthew W. Bailey McDonald G. Provosty IRWIN FRITCHIE URQUHART & MOORE, LLC COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA INSURANCE GUARANTY ASSOCIATION

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins.

          Edwin A. Lombard, Judge.

         A review of the record in this appeal filed by the plaintiff/appellant, Gerald Calogero, reveals that it was not timely filed and, consequently, this Court is without jurisdiction to consider it on the merits.

         Relevant Facts and Procedural History

         The litigation underlying this appeals stems from a February 7, 2014 automobile accident, wherein the plaintiff's vehicle was struck by the vehicle of an at-fault driver, Michael Klying, who was insured by USAgencies Casualty Insurance Company, Inc. (USAgencies). After the accident, the plaintiff submitted a claim to USAgencies and notified his own insurer, USAA Casualty Insurance Company (USAA), of the accident. USAgencies issued a check to the plaintiff for the damage to his vehicle on February 11, 2014, [1] but then stopped payment of he check. The plaintiff's insurer (USAA) issued a check to him for his property damage on February 25, 2014, and then initiated a subrogation claim against USAgencies.

         This lawsuit was filed on March 13, 2014, alleging that (1) under Louisiana bad faith statutes, USAgencies is liable for penalties and attorney's fees; and (2) USAgencies is liable for property damage, lost wages, and rental vehicle expenses. Subsequently, USAgencies was renamed Affirmative Casualty Insurance Company (Affirmative) and then, on April 11, 2016, declared insolvent. On July 12, 2017, based on Affirmative's insolvency, the Louisiana Insurance Guaranty Association (LIGA) filed a petition for intervention, asserting all of Affirmative's rights and duties pursuant to the LIGA law, La. Rev. Stat. 22:2051, et seq.[2]

         LIGA filed a motion for partial summary judgment which was granted on April 19, 2018, claiming a dollar-for-dollar credit for all sums that USAA paid Mr. Calogero and arguing that LIGA has no liability for the plaintiff's bad faith claims against USAgencies. In opposition to the motion, the plaintiff argued that LIGA is not entitled to immunity from attorney's fees arising from a bad faith claim. The district court granted partial summary judgment in favor of LIGA on April 19, 2018, dismissing the plaintiff's bad faith claims for penalties and attorney fees against LIGA and finding that he had already been compensated by USAA for his property damage and, therefore, had no further property damage claim against LIGA.

         The plaintiff's motion for reconsideration was denied on August 1, 2018. After a trial on September 12, 2018, the district court rendered judgment on September 28, 2018, finding: (1) USAgencies was liable to the plaintiff for $3, 105.81 plus court costs, interest, penalties, and attorney's fees due to bad faith; and (2) LIGA was found liable to the plaintiff for rental car expenses in the amount of $275.88 plus interest.

         On October 5, 2018, the plaintiff filed a motion to amend judgment and/or motion for new trial seeking to amend certain phraseology in the decretal language and a new trial on the issues of calculation of attorney's fees, court costs, and rental car expenses. On November 16, 2018, the district court denied the motion for new trial and a notice of signing judgment was issued by the clerk of court on the same date.

         The plaintiff filed a motion for devolutive appeal on January 11, 2019.

         Applicable Law

         The delay for appeal from First City Court of New Orleans is governed by La. Code Civ. Proc. art. 5002, which provides, in pertinent part, that "[a]n appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary." Although "the 10-day appeal delay provided for in La. Code Civ. Proc. art. 5002 commences to run upon receipt of notice of judgment rather than upon the mere mailing of said notice," Myles v. Turner, 612 So.2d 32, 35 (La. 1993) (emphasis in original), Rule 6, § 7 of the Rules of First City Court of the City of New Orleans specifically provides:

Section 7: When an attorney whose name is shown on any pleading as provided in Section 6 hereof moves his office from one location to another, he must change his address on all pleadings which he has previously filed an on which the former address has been shown. The failure to do so will bar such attorney from pleading the nonreceipt of notice mailed by the Court to his address originally shown on the pleadings.

(emphasis added); see also, Rule 9.7, Rules of Louisiana District Court ("The correct mailing address, street address, phone number, facsimile number, and email address, if any, of the person signing the pleading, an in the case of an attorney, the Louisiana Bar Identification Number, shall appear below the signature.").

         Relevant Facts

         On April 16, 2019, this Court ordered the plaintiff to show cause in writing why the appeal should not be dismissed as untimely, considering that the motion for appeal was filed fifty-four days after the mailing of the notice of signing of judgment, well beyond the ten day delay for an appeal from a judgment rendered by a city court. In response, the plaintiff/appellant submitted the affidavit of his attorney, who attested that she never received the November 16, 2018, notice of signing of judgment from First City Court, and, moreover, that on November 1, 2018, she had moved her law office from 3900 North Causeway Blvd., Suite 1200, Metairie, Louisiana, to 3017 21st Street, Suite 211, Metairie, Louisiana. As acknowledged by the plaintiff's counsel, the record reflects that the November 16, 2018, notice of signing of judgment from First City Court was mailed to plaintiff through counsel at the address of 3900 North Causeway Blvd., Suite 1200. The record further reflects that throughout November 2018 and into January 2019, the counsel continued to use the 3900 North Causeway Blvd. address on pleadings and e-mail correspondence with both opposing counsel and the law clerk for the First City Court trial judge.[3]

         Conclusion

         In light of the relevant statutory requirements for filing a timely appeal and the Rules of Court regarding signed pleadings, the instant appeal is untimely and this Court is without jurisdiction to consider its merits. Accordingly, this appeal is dismissed with prejudice.

         APPEAL DISMISSED.

          LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

         I respectfully dissent from the majority's dismissal of this appeal. I would maintain the appeal as timely filed, as the record contains no evidence that Calogero's counsel received the notice of signing of judgment. I would, thus, decide the merits of the appeal, and for the reasons set forth in this dissent, I would affirm the April 19, 2018 judgment, amend the September 28, 2018 judgment and affirm as amended, and vacate the November 16, 2018 judgment.

         Timeliness of Appeal

         This case arises out of First City Court of New Orleans. The Supreme Court has made plain that the 10-day deadline, provided by La. C.C.P. art. 5002[1] within which to appeal a city court judgment, does not commence to run until "receipt of notice of judgment rather than upon the mere mailing of said notice." Myles v. Turner, 612 So.2d 32, 35 (La. 1993) (emphasis in original). The Fifth Circuit Court of Appeal for the State of Louisiana has held that where the record contains no evidence of the date on which the judgment or notice of signing was received, the appeal should be maintained. See, e.g., Morice v. Alan Yedor Roofing & Constr., 2016-0532, pp. 9-10 (La.App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079; Kaye v. Karp, 2017-0397, p. 3, n. 5 (La.App. 5 Cir. 12/27/17), 237 So.3d 614, 619, writ denied, 2018-0136 (La. 3/9/18), 237 So.3d 1193 (citing Hacienda Const., Inc. v. Newman, 2010-0018, pp. 4-5 (La.App. 5 Cir. 6/29/10), 44 So.3d 333, 336). I find these cases persuasive and adopt their holding.

         The following dates are relevant to this Court's inquiry. On November 16, 2018, the city court rendered the judgment ruling on the motion for new trial, and a notice of signing was issued by the clerk of court on the same date. Calogero did not file a motion for appeal until January 11, 2019, 54 days later.[2]

         No party filed a motion to dismiss this appeal as untimely. Nevertheless, "[a]ppellate courts have a duty to determine, sua sponte, whether the court has proper jurisdiction to consider the merits of an appeal filed in the court." Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.-New Orleans, 2018-0812, p. 2 (La.App. 4 Cir. 1/9/19), 263 So.3d 449, 451-52. "Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal." Tennebaum v. LeCompte, 2015-0008, p. 2 (La.App. 4 Cir. 8/12/15), 173 So.3d 1185, 1185 (citation omitted).

         Accordingly, this Court, on its own motion, issued an order to show cause why the appeal should not be dismissed as untimely. In response, Calogero submitted the affidavit of his attorney, who attested under oath that she never received the judgment or notice of signing from the city court. She also attested that the judgment was sent to a law office where she no longer practiced. The record contains conflicting information as to where counsel's office was located in November 2018. Calogero's counsel did not file anything in the lower court record advising of her law office's change of address during this period. Notably, according to the notice of signing, the judgment was actually not mailed to LIGA; rather it was mailed to: (1) Calogero's counsel's address of record, and (2) an address where Calogero, also an attorney, has a law office.[3] Nevertheless, nothing in the record informs this Court when or if Calogero's attorney received the judgment or notice of signing from the city court.

         The majority's premise for dismissing this appeal is Local Rule 6 § 7 of the First City Court of New Orleans, a city court procedural rule that requires counsel of record who moves his office to "change his address on all pleadings which he has previously filed and on which the former address has been shown." This local rule also states that "failure to do so will bar such attorney from pleading the nonreceipt of notice mailed by the Court to his address originally shown on the pleadings." The majority reads this local rule to conclusively bar this Court from finding no evidence of Calogero's counsel's receipt of the notice of signing. Under the majority's analysis, this Court is forced to assume that Calogero's counsel received the notice of signing on an unspecified date, but failed to file a motion for appeal within 10 days. The majority cites to no code article, statute, or reported jurisprudence that supports its position. I disagree with such a reading, and I find that it runs afoul of the Supreme Court's holding that the 10-day appeal delay under La. C.C.P. art. 5002 commences upon receipt of the notice of signing of judgment. See Myles, 612 So.2d at 35.

         The Supreme Court has explicitly held that "local rules of court cannot conflict with legislation." Rodrigue v. Rodrigue, 591 So.2d 1171, 1171 (La. 1992). See also Clark v. Dep't of Police, 2012-1274, p. 7 (La.App. 4 Cir. 2/20/13), 155 So.3d 531, 536. A court's authority to enact local procedural rules arises from La. C.C.P. art. 193, which allows such court to "adopt rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law." (Emphasis added.) Even so, "the primary objective of all procedural rules should be to secure to parties the full measure of their substantive rights." Unwired Telecom Corp. v. Par. of Calcasieu, 2003-0732, p. 10 (La. 1/19/05), 903 So.2d 392, 401 (citations omitted). "It bears remembering that rules of procedure exist for the sake of substantive law and to implement substantive rights, not as an end in and of itself." Id.

         "Local rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose." Vincent v. Vincent, 2011-1822, p. 12 (La.App. 4 Cir. 5/30/12), 95 So.3d 1152, 1161 (citations omitted). "Further, the trial court has great discretion in the construction, interpretation, application and enforcement of its own rules." Id., 2011-1822, pp. 12-13, 95 So.3d at 1161.

         The record does not show that the city court applied this local rule in this litigation, and the majority gives no reason why this Court is bound by the city court's local rule on appeal. No party complained of either the timeliness of this appeal or application of this local rule, and the parties have now waived these arguments. See Lingo v. Lingo, 52, 105, p. 10 (La.App. 2 Cir. 4/11/18), 249 So.3d 932, 938 ("A local court rule cannot deprive a litigant of his right to access to the court … the parties, hearing officer, and original judge operated as if there had been a tacit waiver of the local court provision" setting deadline for filing written objections). Moreover, the record has never been supplemented with any evidence of Calogero's counsel's receipt of the judgment or the notice of signing. Rather, Calogero's counsel, an officer of the court, attests under oath that she never received the judgment or notice of signing, and this Court has no evidence to the contrary.

         In sum, I simply find no authority for the proposition that counsel's failure to lodge in the lower court notice of her change of address creates a jurisdictional defect imputable to her client, which in turn deprives this Court of appellate jurisdiction over this case. Rather, I would follow Myles' and the Fifth Circuit's interpretation of La. C.C.P. art. 5002. Because the date of receipt of the notice of signing of judgment cannot be "firmly established," I would maintain the appeal as timely, "as appeals are favored under the law, and any doubt as to the timeliness of an appeal shall be resolved in favor of maintaining, rather than dismissing an appeal." Kaye, 2017-0397, p. 3, n. 5, 237 So.3d at 619 (citing Hacienda Const., Inc., 2010-0018, pp. 4-5, 44 So.3d at 336).

         Merits of Appeal

         Factual and Procedural History

         This is a bad faith action for failure to pay an automobile insurance claim. This litigation stems from a February 7, 2014 automobile accident, wherein Calogero's vehicle was struck by the vehicle of an at-fault driver, Michael Klying. At the time of the accident, USAgencies provided automobile insurance coverage to Klying, and USAA provided coverage to Calogero. Following the accident, Calogero submitted a claim to USAgencies and notified USAA of the accident. USAgencies did not contest its liability for the accident.

         On February 11, 2014, USAgencies issued a check to Calogero in the amount of $3, 105.81 for the damage to his vehicle.[4] Calogero deposited said check. On February 17, 2014, however, USAgencies stopped payment on its check, and Calogero's account was debited $3, 105.81 plus $12.00 for a deposit item returned fee. USAgencies did not reissue any payment to Calogero for his property damage. On February 25, 2014, USAA issued a check to Calogero in the ...


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