Waters v. Allstate Ins. Co.

• Decision Date: 31 March 1999
• Docket Number: No. 98-CA-0590.,98-CA-0590.
• Citation: 731 So.2d 1001
• Parties: Eric Anthony WATERS v. ALLSTATE INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

731 So.2d 1001

Eric Anthony WATERS v. ALLSTATE INSURANCE COMPANY.

No. 98-CA-0590.

Court of Appeal of Louisiana, Fourth Circuit.

March 31, 1999.

Catherine J. Smith, New Orleans, Louisiana, Counsel for Plaintiff/Appellee.

Robert H. Cooper, Christopher M. Landry, Blue Williams, L.L.P., Metairie, Louisiana, Counsel for Defendant/Appellant.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MOON LANDRIEU, and Judge JAMES F. McKAY, III.

LANDRIEU, Judge.

This case concerns the district court's grant of the plaintiff's motion for new trial and its judgment in favor of the plaintiff following the new trial.

The plaintiff suffered a residential burglary at his home on North Rocheblave during the evening of January 28, 1994. He notified his insurer, the defendant, Allstate Insurance Company, through his agent on January 29, 1994, and through Allstate's claims office on January 31, 1994. On February 11, 1994, an Allstate representative interviewed the plaintiff at his home. The representative, Ms. Nancy Howard, requested documentation to support the claim. On April 14, 1994, the plaintiff submitted the requested documentation and a sworn statement of his loss to Allstate's claims office. On the same date, he appeared at Allstate's counsel's office to give an examination under oath. On June 2, 1994, Allstate notified the plaintiff's counsel that it was denying the claim on the basis of concealment or fraud.

Thereafter, in January of 1995, the plaintiff sued Allstate. The matter came to trial on January 21, 1997; post-trial briefs were filed on March 2, 1997. On April 7, 1997, the district court issued its judgment in favor of the plaintiff, awarding him $4,767.00, plus court costs and interest from the date of demand. In its written judgment, the district court applied a business property limitation, denied the plaintiff's request with regard to the stereo equipment, finding that the receipt submitted in support of the loss was "invalid," and denied the plaintiff's request for attorney fees and penalties, finding that Allstate had not acted arbitrarily and capriciously in denying the plaintiffs claim.

The plaintiff timely filed a motion for new trial on April 15, 1997. On April 16, 1997, the district court denied the motion for new trial, writing the following: "Denied. Hearing not necessary. Further no memo in support." This was followed by the judge's signature. In different color ink, the language above was modified to strike-through "Hearing not necessary. Further" and to add under the judge's signature, "Memo in support needs to be filed." The changes are initialed "tfl." There is no date indicating when the changes were made.

The defendant, however, has submitted the "true" copy of the motion for new trial served on it on April 22, 1997. This copy shows that the motion is "Denied" in handwriting, but the judge's name is typed on the signature line.

Subsequently, on April 29, 1997, the plaintiff filed a "Memorandum in Support of Motion for New Trial." Although the record does not contain a rule to set the matter for a hearing, the district court on the same date, April 29, 1997, fixed a hearing for the motion on May 23, 1997. The record indicates the defendant on May 6, 1997, was personally served with a notice of the hearing on the motion for new trial set for May 23, 1997. The record does not show that a copy of the memorandum in support of the motion was served on the defendant.¹

At any rate, the record does not establish that a hearing was held on May 23, 1997. There is also no indication this hearing was reset. However, on September 1997, the district court granted the plaintiff's motion for new trial.² In its judgment, the court acknowledged that the plaintiff had submitted a motion for new trial on the basis that the award of $2,772.00 dollars for the loss of the camera equipment was clearly contrary to the law and evidence. The court noted, "Plaintiff's counsel submitted a memorandum in support of its motion for a new trial and the Court took the matter under advisement." The court then stated:

After review of the facts of the case and review of [the] transcript of testimony given during the trial, the Court is of the opinion that a new trial is warranted only as to the issue of damages in regards to the loss of plaintiff's camera equipment. The Court grants a new trial and will hear testimony relative to the value of the camera equipment and whether or not it was used for business purposes.

The court then set a new trial on September 19, 1997.

Because neither party was notified of the new trial date, the district court on September 30, 1997, amended its judgment of September 4, 1997, reiterating that the motion for new trial was granted and that the new trial was set for October 10, 1997. The matter was heard on that date; however, no new testimony was taken, as certified by the court reporter.

On October 22, 1997, the district court again rendered judgment in favor of the plaintiff. The district court found that the camera equipment was not subject to the business property limitation and increased the award for the loss of the camera equipment to $7,700.00.³ The court further found that the receipt submitted by the plaintiff for the stereo equipment was invalid. Reasoning that the defendant had not introduced evidence contradicting the plaintiff's testimony that he had owned the stereo equipment and that it had been stolen, the court awarded the plaintiff $1,981.21 for the loss of the stereo equipment. The total award, therefore, was increased from $4,767.00 to $11,676.21, plus costs and interest from date of judicial demand. The court again denied the plaintiff's request for attorney fees and penalties.

Allstate appeals the district court's grant of the motion for new trial and the district court's judgment of October 22, 1997. The defendant asserts four assignments of error:

(1) The district court erred in granting the motion for new trial (a) because the court had already denied the motion for failure to provide a supporting memorandum and (b) because the evidence presented at the first trial supported the original judgment.

(2) The district court erred in not setting the motion for new trial for a contradictory hearing.

(3) The district court erred in determining that the camera equipment was not subject to the business deduction.

(4) The district court erred in awarding the plaintiff for loss of the stereo equipment when the order granting the motion for new trial had limited the scope of the new trial solely to the issue of the camera equipment.

The plaintiff has answered Allstate's appeal. He seeks the attorney's fees and penalties denied by the district court. He maintains Allstate acted arbitrarily and capriciously in failing to pay his claim within thirty days of the date the claim was made.

In its first assignment of error, the defendant asserts the district court erred in granting the motion for new trial on September 4, 1997, because it had already denied the motion on April 16, 1997. The defendant further asserts the motion was properly denied, because no supporting memorandum was filed pursuant to Rule 8, section 2, of the local rules of the Civil District Court. The defendant argues that, by holding the matter open for the filing of the supporting memorandum, the district court effectively extended the time period for the filing of the motion for new trial, an extension it had no authority to grant. The plaintiff counters that the district court, when it set a hearing on the motion for new trial after the memorandum in support was filed, effectively granted a rehearing on the motion for new trial. He also argues that the granting of the new trial ex proprio motu on September 4, 1997, was proper under the court's authority set forth in La.Code Civ. Proc. art. 1973.

We disagree with both characterizations of the district court's actions. Nothing in the local rule cited by the parties mandates the district court deny or dismiss a motion for new trial for failure to file the memorandum in support thereof. Accordingly, it was within the court's discretion to dismiss the motion on that basis. The court, however, chose not to do so, instead noting on the judgment in the record that a memorandum in support of the motion should be filed. Though the district court should have set a date for the filing of the memorandum and though the defendant's copy of the motion indicates the motion was denied without conditions, the defendant did not appear at the hearing on the motion, a hearing of which it had notice. Apparently neither party appeared on May 23, 1997; consequently, the district court, as it indicated in its judgment of September 4, 1997, "took the matter under advisement." Accordingly, we do not find that the district court after its initial ruling of April 16, 1997, lacked authority to entertain the motion for new trial and to render a ruling thereon.

We also find that the district court properly ruled on the motion for new trial without first conducting a contradictory hearing. Though the defendant may be correct that no hearing was conducted before the district court issued its ruling on September 4, 1997, it is clear that the court set such a hearing for May 23, 1997, and that the defendant was given notice of the hearing on May 6, 1997. That the defendant decided not to appear at the hearing, choosing instead to rely on the apparent denial of the motion, did not require the court to schedule another hearing on the motion for new trial before it issued its ruling. At any rate, there is no absolute right to a contradictory hearing on a motion for new trial. See Gennings v. Newton, 567 So.2d 637, 640 (La.App. 4 Cir.1990)

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The defendant next argues the district court erred in granting the motion for new trial, because the law and the evidence introduced at the first trial supported the district court's original judgment. In his motion for new trial, and...