GERALD J. CALOGERO
USA AGENCIES CASUALTY INSURANCE COMPANY, INC.
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
composed of Judge Edwin A. Lombard, Judge Joy Cossich
Lobrano, Judge Sandra Cabrina Jenkins.
A. Lombard, Judge.
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.
Facts and Procedural History
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,  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.
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,
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.
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.
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.
plaintiff filed a motion for devolutive appeal on January 11,
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
(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.").
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
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.
LOBRANO, J., DISSENTS AND ASSIGNS REASONS.
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.
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 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.
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
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).
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. 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.
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
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
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.
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.
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).
and Procedural History
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.
February 11, 2014, USAgencies issued a check to Calogero in
the amount of $3, 105.81 for the damage to his
vehicle. 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