Ronald Wilson v. Felipe's Ventures, L.L.C. and Hanover American Insurance Company

RONALD WILSON * NO. 2024-CA-0363

VERSUS *
COURT OF APPEAL
FELIPE'S VENTURES, L.L.C. *
AND HANOVER AMERICAN FOURTH CIRCUIT
INSURANCE COMPANY *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-05197, DIVISION “F-14”
Honorable Jennifer M. Medley
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge
Rachael D. Johnson)

Pius A. Obioha
Joseph R. Barbie Sr.
LAW OFFICES OF PIUS A. OBIOHA & ASSOCIATES, LLC
1550 North Broad Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

John E. Unsworth, III
LAW OFFICES OF ROBERT D. FORD
111 Veterans Memorial Blvd., Suite 1710
Metairie, LA 70005

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED

DECEMBER 27, 2024

JCL This appeal arises from a motion to enforce settlement. Plaintiff/appellant,

RML Ronald Wilson (“Wilson”), appeals the January 29, 2024 judgment of the district

RDJ court, which granted the motion to enforce settlement filed by

defendants/appellees, Felipe’s Ventures, LLC and Hanover American Insurance

Company (collectively “Felipe’s”). For the reasons that follow, we vacate the

judgment and remand for further proceedings.

On June 18, 2021, Wilson filed a petition for damages, alleging that he

sustained personal injuries on July 27, 2020, when he sat on a bench at Felipe’s

restaurant and the bench broke. Thereafter, on August 16, 2023, the matter

proceeded to mediation. A dispute arose as to whether, after mediation, Wilson

accepted Felipe’s settlement offer. On October 13, 2023, Felipe’s filed a motion to

enforce settlement. Wilson retained new counsel, and former counsel filed a

petition for intervention to recover a share of the attorney’s fees for the work

performed. On November 16, 2023, Wilson filed an opposition to the motion to

enforce settlement, arguing that mediation was unsuccessful, and he did not accept

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the settlement offer or grant his former counsel express authority to settle for the

terms that Felipe’s offered.

A hearing was scheduled on November 30, 2023 and was later continued to

January 24, 2024. However, no hearing took place. The district court cancelled the

hearing, due to an ongoing fifteen-day jury trial in its division, and considered the

motion to enforce on the briefs.1 On January 29, 2024, the district court granted the

motion to enforce and ordered that the settlement proceeds be placed in the registry

of the court pending resolution of the petition for intervention. On February 15,

2024, Wilson filed a motion for new trial, which the district court denied on April

24, 2024. Meanwhile, on March 14, 2024, the district court issued reasons for its

January 29, 2024 judgment. This appeal follows.

The Louisiana Civil Code defines a settlement or “compromise” as a

“contract whereby the parties, through concessions made by one or more of them,

settle a dispute or an uncertainty concerning an obligation or other legal

relationship.” La. C.C. art. 3071. The requirements for a valid settlement

agreement are articulated in La. C.C. art. 3072, which provides that the settlement

“shall be made in writing or recited in open court, in which case the recitation shall

be susceptible of being transcribed from the record of the proceedings.” “The party

who attempts to rely on the existence of a compromise agreement bears the burden

of proof to show that the requirements for a valid compromise are present,

1 The parties represent that the district court’s law clerk notified them via email that the hearing

was cancelled and the matter was submitted on the briefs. The email is not a part of this Court’s
record. The district court described these events, however, in its March 14, 2024 reasons for
judgment.

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including that the parties intended to settle.” Suire v. Lafayette City-Par. Consol.

Gov’t, 04-1459, 04-1460, 04-1466, pp. 24-25 (La. 4/12/05), 907 So.2d 37, 55.

Wilson’s arguments on appeal primarily address the sufficiency of the

evidence the district court considered in granting the motion to enforce settlement.

We do not reach the merits of whether a settlement exists, however, because the

district court’s failure to conduct a contradictory hearing was a procedural and

legal error.2

Ordinarily, an appellate court reviews a district court’s judgment granting a

motion to enforce a compromise agreement under the manifest error standard.

NOLA Title Co., L.L.C. v. Archon Info. Sys., LLC, 22-0697, p. 12 (La. App. 4 Cir.

4/13/23), 360 So.3d 166, 175, writ denied, 23-00682 (La. 9/19/23), 370 So.3d 467.

“This is because the existence or validity of a compromise depends on a finding of

the parties’ intent, an inherently factual finding.” Feingerts v. State Farm Mut.

Auto. Ins. Co., 12-1598, 13-0023, p. 4 (La. App. 4 Cir. 6/26/13), 117 So.3d 1294,

1297 (quotation omitted). As is generally the case in civil matters, findings of fact

are reviewed under the manifest error standard. Howard v. Louisiana Citizens

Prop. Ins. Corp., 10-1302, p. 3 (La. App. 4 Cir. 4/27/11), 65 So.3d 697, 699.

However, the determination of whether a contradictory hearing is required before

ruling on a motion to enforce settlement is a question of law. “Questions of law are

2 While not specifically assigned as error, Wilson complains in his brief that he was denied his

day in court. He first raised the argument in his motion for new trial that the district court
erroneously cancelled the hearing. Felipe’s argued that Wilson did not object to the district
court’s email or request a continuance. Regardless, this Court recently observed its authority to
review this issue, sua sponte, in the interest of justice. Walker v. Brown, 24-0198, p. 4 (La. App.
4 Cir. 5/17/24), 390 So.3d 427, 430 (citations omitted)(determining that the lower court’s ruling
on a motion for summary judgment “without giving the defendant the opportunity to argue the
merits of its motion … is a procedural and legal error.”)

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reviewed by appellate courts de novo, without deference to the legal conclusions of

the lower court.” Hummel v. Reg’l Transit Auth., 21-0226, p. 4 (La. App. 4 Cir.

11/10/21), 331 So.3d 421, 424 (quotation omitted).

The district court’s written reasons for judgment reflect the circumstances

leading to its cancellation of the hearing, as follows:

This matter was originally set for contradictory
hearing before this Court on January 24, 2024, on
Defendant’s Motion to Enforce Settlement, filed on
October 13, 2023, on behalf of Felipe’s Ventures, LLC,
and Hanover American Insurance Company. However,
on January 8, 2024, this Court commenced an estimated
fifteen-day jury trial in CDC No. 2022-07358 Hidalgo,
Hunter PHD v. Board of Supervisors of Louisiana
Agricultural and Mechanical College et al, Div. F-14.
The jury did not return a verdict until the eve of February
5, 2024. In Accordance with La. R. Dist. Ct. 9.0, and in
recognition of judicial efficiency, this Court determined
the above-referenced Pleading on the briefs submitted
and filed into the record.

Two recent appeals to this Court arose from essentially the same

circumstances, and in both of these appeals, this Court determined that the district

court lacked the authority to rule on a motion for summary judgment without first

conducting a contradictory hearing. Walker v. Brown, 24-0198, p. 3 (La. App. 4

Cir. 5/17/24), 390 So.3d 427, 430; Mangum v. Tate, 24-0260, p. 4 (La. App. 4 Cir.

5/29/24), 390 So.3d 452, 455. Observing nothing in the judgment to suggest that

the parties agreed to submit the matter on briefs, this Court held that La. C.C.P.

arts. 963(B) and 966(B) mandated a hearing on the motion and that the

aforementioned Code of Civil Procedure Articles supersede the local rule, La. R.

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Dist. Ct. 9.0.3 Walker, 24-0198, p. 3, 390 So.3d at 430; Mangum, 24-0260, p. 4,

390 So.3d at 455.

While Article 966 governs summary judgments,4 Article 963 is entitled “Ex

parte, contradictory, and unopposed motions; rule to show cause” and provides as

follows:

A. If the order applied for by written motion is one to
which the mover is clearly entitled without supporting
proof, the court may grant the order ex parte and without
hearing the adverse party.

B. If the order applied for by written motion is one to
which the mover is not clearly entitled, or which requires
supporting proof, the motion shall be served on and tried
contradictorily with the adverse party.

C. The rule to show cause is a contradictory motion.

D. An unopposed motion is one to which all affected
parties have consented prior to the filing of the motion.
The mover shall certify in the motion that the mover has

3 Louisiana District Court Rule 9.0 is entitled “ Daily Order of Business” and states:

To provide for the expeditious administration of justice to the
extent practicable, the court shall hear uncontested matters and the
trials of motions or exceptions on days on which trials on the
merits are not scheduled.

If uncontested matters and the trials of motions or exceptions are
heard on days on which trials on the merits are scheduled, the court
will, where practicable, maintain the following order of business:

(a) Uncontested matters, including default judgments.

(b) The trial of motions or exceptions that do not require the
testimony of witnesses.

(c) The trial of motions or exceptions that require the testimony of
witnesses.

(d) Trials on the merits.
4 Under La. C.C.P. art. 966(C)(1)(a), “[u]nless otherwise agreed to by all of the parties and the

court: [a] contradictory hearing on the motion for summary judgment shall be set not less than
thirty days after the filing and not less than thirty days prior to the trial date.”

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obtained the consent of all affected parties both to the
motion and to the accompanying order that is presented
to the court. Failure to certify that all affected parties
have consented requires the motion to be set for
contradictory hearing.

As the Walker Court explained:

La. C.C.P. art. 963 requires a contradictory hearing
when the mover is not clearly entitled or when there is a
need for supporting proof. . . .

However, the trial court unilaterally, without the
parties’ consent, decided to forego the contradictory
hearing, due to a scheduling issue regarding an ongoing
trial and determined the motion on the pleadings. As a
basis for not conducting a contradictory hearing the trial
court cited the district court rule regarding the daily order
of business, Rule 9.0 and judicial efficiency, neither of
which allow a trial court to not conduct a hearing when
mandated by law.

It is recognized that Louisiana District Court Rule,
Rule 9.18, provides that “[o]ral argument is a privilege,
not a right, and is within the court’s discretion.”
However, although trial courts have the power to conduct
their proceedings in an orderly and expeditious manner –
the orders, rulings, decrees and judgments issued must be
based upon record evidence. See Econ. Carpets Mfrs. &
Distributors, Inc. v. Better Bus. Bureau of Baton Rouge,
Louisiana, Inc., 319 So. 2d 783, 785-786 (La. 1975).
Further, the orders of the court, unless an ex parte order,
“must be predicated upon evidence introduced into the
record, affording ample opportunity to those affected
thereby to contradict, rebut and otherwise support their
position in the matter.” Econ. Carpets Mfrs. &
Distributors, Inc., 319 So. 2d at 786. The exception to
this rule is when a party is clearly entitled to ex parte
relief, without a hearing or when a motion is certified as
being unopposed. See La. C.C.P. art. 963(A). However, a
contested motion, such as LSUHN’s motion for summary
judgment is required to be tried contradictorily. See La.
C.C.P. art. 963(B). La. C.C.P. art. 963(B) states that “[i]f
the order applied for by written motion is one to which
the mover is not clearly entitled, or which requires
supporting proof, the motion shall be served on and tried
contradictorily with the adverse party.” “The word ‘shall’
is mandatory…” La. C.C.P. art. 5053.

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Walker, 24-0198, pp. 4-6, 390 So.3d at 431-32 (footnote omitted); Mangum, 24-

0260, pp. 4-5, 390 So.3d at 455-56.

While a motion for summary judgment and motion to enforce settlement are

procedurally distinct,5 there can be no doubt that La. C.C.P. art. 963(B) applies to a

motion to enforce settlement. The motion to enforce is a contested motion

requiring supporting proof of the settlement’s existence. It is not an unopposed

motion to which a party is clearly entitled to ex parte relief. Therefore, unless the

parties agree otherwise, La. C.C.P. art. 963(B) mandates that “the motion shall be

served on and tried contradictorily with the adverse party.” While this Court has

not directly addressed the hearing requirement for a motion to enforce settlement,

other courts have reached similar conclusions. In Lennix v. Louisiana Farm Bureau

Cas. Ins. Co., 16-347, p. 2 (La. App. 5 Cir. 12/7/16), 207 So.3d 653, 654, the court

held that a rule to show cause, setting a hearing on a motion to enforce settlement,

was a contradictory motion, for which Article 963(B) required service on the

adverse party. In Landis Const. Co., L.L.C. v. State, 15-1167, p. 3 (La. App. 1 Cir.

2/29/16), 199 So.3d 1, 2, citing to La. C.C.P. art. 963, the court recognized that

“[w]hen a party raises a motion that must be proven, it is that party’s burden to

present evidence establishing the claims made therein.” When considering the

procedural sufficiency of a motion to enforce a consent judgment, the Landis court

determined that the exhibits merely attached to the memoranda (including the

consent judgment) had not been introduced and admitted into evidence at the

5 See Howard, 10-1302, p. 4, 65 So.3d at 700.

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hearing; consequently, the lower court erred in considering those exhibits and

relying on them to grant the motion. Id., p. 3, 199 So.3d at 2-3 (citing Denoux v.

Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88). Another

court, examining the same issue, vacated a judgment granting a motion to enforce

settlement where the lower court heard only argument of counsel and no evidence

had been introduced before the lower court on which to base the ruling.

Scheuermann v. Cadillac of Metairie, Inc., 11-1149, pp. 6-7 (La. App. 5 Cir.

5/31/12), 97 So.3d 423, 427.

In summary, Article 963 clearly intends that a contradictory motion

requiring supporting proof must be tried at a contradictory hearing. A motion to

enforce settlement requires supporting proof, and La. C.C.P. art. 963(B) mandates

a contradictory hearing. The district court lacked authority to rule on the motion to

enforce without conducting a contradictory hearing to receive evidence properly

offered and introduced by the parties. In ruling on the briefs, absent the consent of

the parties, the district court erred as a matter of law and its judgment must be

vacated.

Accordingly, for the reasons set forth in this opinion, we vacate the January

29, 2024 judgment of the district court, and we remand this matter for further

proceedings.

VACATED AND REMANDED

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