Pamela Dunlap v. Community Bank of Louisiana

Judgment rendered November 19, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,475-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

PAMELA DUNLAP Plaintiff-Appellant

versus

COMMUNITY BANK OF Defendant-Appellee
LOUISIANA

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 83,713

Honorable Amy Burford McCartney, Judge

*****

COLVIN, SMITH, MCKAY & BAYS Counsel for Appellant
By: James H. Colvin, Jr.
J. Clayton Caraway

THE COHN LAW FIRM, LLC Counsel for Appellee
By: David M. Cohn
Bartley P. Bourgeois

*****

Before PITMAN, THOMPSON, and ROBINSON, JJ.

THOMPSON, J.

Pamela Dunlap (“Dunlap”) and Community Bank of Louisiana (“the

Bank”) return in their ongoing dispute of funds held by the Bank, this time

over the availability and amount of the award to the Bank of attorney fees

and court costs. The underlying dispute between Dunlap and the Bank over

ownership of funds was resolved in Dunlap v. Cmty. Bank of La., 55,695

(La. App. 2 Cir. 06/05/24), 387 So. 3d 952). Subsequently, the Bank sought

to recover contractual attorney fees arising from the dispute, which the trial

court awarded in part. Dunlap appealed, arguing that the claim was not

properly pled or reserved below, and that the claim is barred by res judicata.

The Bank answered the appeal, claiming entitlement to the full amount of

attorney fees incurred. For reasons more fully detailed below, we affirm the

trial court’s award of attorney fees, reject increasing the previous award of

attorney fees, but do award additional attorney fees to the Bank in the

amount of $7,500 arising from Dunlap’s appeals.

FACTS AND PROCEDURAL HISTORY

Pamela Dunlap alleges she and her father visited the Gloster branch of

the Bank on March 4, 2021, because it was her father’s intention to donate to

Dunlap over one million dollars held in his money market deposit account

and four certificate of deposit accounts with the Bank. She alleges they

communicated to the Bank their desire for her father to add her as an owner

to the accounts and to donate those funds to her, or, alternatively, to create a

transfer of the accounts upon her father’s death to Dunlap. After the death of

her father Dunlap filed a petition against the Bank, alleging, among other

things, that the Bank failed to set up, advise, or ensure that her father fully

and legally donated the sums in the accounts to her. Dunlap alleged that the

Bank’s negligent misrepresentations during her prior visit breached the duty

owed to her by the Bank.

In response, the Bank filed its first exception of no cause of action,

which was sustained by the trial court.1 The trial court provided Dunlap

with the opportunity to amend her petition, and Dunlap filed a second

supplemental and restated petition. In response the Bank filed its second

exception of no cause of action. In its second exception of no cause of

action, the Bank expressly reserved any claim it may have to attorney fees as

follows:

Community Bank therefore respectfully prays that this Court:
[…] reserve unto Community Bank any and all claims and
rights it has against Plaintiff and/or other parties in interest,
including without limitation: 2) Community Bank’s claim for
attorneys’ fees and expenses in connection with this proceeding
and related proceedings [.]

The Bank’s reservation was repeated in its memorandum in support of the

peremptory exception.

After a hearing on the second peremptory exception,2 the trial court

sustained the exception and dismissed Dunlap’s lawsuit with prejudice. It is

from that final judgment that Dunlap previously filed a devolutive appeal

before this court. See Dunlap, supra. In that appeal,3 this Court affirmed

the trial court’s grant of the Bank’s exception of no cause of action

dismissing this case with prejudice. The judgment4 from the trial court

1
March 4, 2023
2
August 17, 2023
3
June 5, 2024
4
August 17, 2023

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sustaining the exception did not mention attorney fees, and this Court did not

address the issue in that appeal.

While the first appeal was pending and before this Court’s final

judgment was issued, the Bank filed5 in the trial court a “motion to set

attorney fees and tax costs,” pursuant to La. C. C. P. art. 2088. Introduced

as evidence at the hearing6 on that motion was the Account Agreement

incorporated in the documents signed by Dunlap and her father when they

originally visited the bank in March 2021, adding Dunlap to his accounts.

The pertinent Account Agreement contains a clause stating:

ATTORNEYS’ FEES AND EXPENSES. You agree to be
liable to us for any loss, costs or expenses, including reasonable
attorneys’ fees to the extent permitted by law, that we incur as a
result of any dispute involving your account, and you authorize
us to deduct any such loss, costs or expense from your account
without prior notice to you. This obligation includes disputes
between yourself and us involving the account and situations
where we become involved in disputes between you and an
authorized signer, another joint owner, or a third party claiming
an interest in the account. It also includes situations where you,
an authorized signer, another joint owner, or a third party takes
action with respect to the account that causes us, in good faith, to
seek the advice of counsel, whether or not we actually become
involved in a dispute.

Dunlap and her father’s signatures appear on the separate Account

Information documents, that contain express acknowledgements of their

receipt of the Account Agreement and other disclosures, as indicated below:

5
February 29, 2024
6
December 16, 2024

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The Bank sought recovery of its attorney fees incurred totaling $133,915.35

in responding to Dunlap’s petition. Following the hearing and introduction

of testimony and evidence, the trial court ruled that Dunlap did owe

contractual attorney fees to the Bank and set the amount of attorney fees at

$60,000 plus court costs in the amount of $896.09.

Dunlap now appeals this award and the amount of attorney fees.

Dunlap also filed an exception of res judicata, arguing that because the

merits of the matter have been litigated, and the final judgment from the trial

court in the earlier appeal is silent as to attorney fees, the Bank failed to

properly plead the issue, and it is therefore barred. The Bank filed an

answer to this appeal, arguing that the trial court failed to award the full

amount of attorney fees incurred, and requests additional attorney fees and

costs be awarded for this second appeal

DISCUSSION

Dunlap asserts several assignments of error. We will focus first on

those related to the award and amount of attorney fees imposed, which

include:

Assignment of Error No. 1: The trial court erred in considering whether
contractual attorney fees were owed, when such a claim was never
pleaded by the Bank prior to the August 24, 2023 final judgment
dismissing this case with prejudice.

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Assignment of Error Number 2: The trial court erred in considering the
issue of attorney fees when the issue of attorney fees was not awarded
by or reserved in the August 24, 2023 final judgment dismissing this
case with prejudice.

Assignment of Error Number 4: The trial court erred in awarding
contractual attorney fees because Dunlap never signed a contract nor
verbally agreed to pay the Bank such fees.

Assignment of Error Number 5: The trial court erred in awarding
contractual attorney fees because the attorney fees clause contained in
the unsigned account agreement does not apply to suits involving tort-
based recovery.

Assignment of Error Number 6: The trial court erred in resolving a
substantive claim to attorney fees by use of a summary proceeding,
instead of a trial on the merits before a jury.

Dunlap argues that the Bank failed to join the issue of contractual

attorney fees prior to the final judgment, which dismissed the case with

prejudice. Dunlap asserts that the Bank could have properly pled and filed

its attorney fees claim at any time before the final judgment, and that the

issue of attorney fees was not properly reserved by the Bank or referenced in

the final judgment dismissing the case. Dunlap has asserted an exception of

res judicata, arguing the claim is barred because a final judgment has issued,

and the issue of attorney fees was not properly raised during the pending

litigation. Dunlap further argues that the evidence from the hearing on the

motion to set attorney fees improperly expanded the pleadings because the

attorney fee issue was not previously raised.

Dunlap also argues that La. C. C. P. art. 2088 may not be used to

assert and fully adjudicate a wholly new, substantive cause of action for

attorney fees that was not pleaded or awarded prior to final judgment

dismissing the suit. La. C.C.P. art. 2088 provides that trial courts are

divested of jurisdiction over cases once the appeal was granted. She asserts

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that La. C. C. P. art. 2088 merely provides that if attorney fees are awarded

by a final judgment, then the trial court maintains jurisdiction to quantify

those attorney fees that were awarded while the appeal is pending. Dunlap

asserts that because the final judgment is silent as to attorney fees, the issue

was not properly pled by the Bank and should be barred, and that the trial

court is divested of jurisdiction to take any action in awarding attorney fees.

Dunlap also argues that the underlying action in this case is a tort claim

against the bank, not a contract case or a case over ownership of the

accounts, and thus, the recovery of attorney fees is not provided for by

contract in the Account Agreement. Dunlap argues she is seeking damages,

and this is not a dispute regarding her account.

Dunlap is effectively asserting it was the intention of her and her

father for the visit to the Bank to add her to his accounts as an estate

planning tool. Estate planning is more appropriately delegated to legal

counsel in the drafting of wills, trusts, and acts of donation. Dunlap’s

assertions that the “intention” of the visit to the Bank were somehow

bumbled may sound in an action for legal malpractice, but for the fact that

Dunlap and her father bypassed legal counsel in the process of addressing

these assets of more than one million dollars. Their claims regarding the

accounts trigger the provisions of the Account Agreement regarding the

Bank’s right to recover its reasonable attorney fees, and the Bank and its

employees are not held to any legal malpractice standard or similar avenue

for recovery for any impact it may have had on the alleged estate plans

intended by Dunlap and her father.

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Res Judicata

Louisiana Revised Statutes 13:4231, which sets forth the doctrine of

res judicata, provides as follows:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on
appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and the judgment bars a subsequent
action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with
respect to any issue actually litigated and determined if its
determination was essential to that judgment.

Simply put, res judicata bars re-litigation of a subject matter arising

from the same transaction or occurrence of a previous suit. Therefore, the

court must determine whether the second action asserts a cause of action that

arises from the same transaction or occurrence as the subject matter of the

first action. Newburger v. Orkin, L.L.C., 20-534 (La. App. 3 Cir. 5/5/21),

320 So. 3d 465, writ denied, 21-00782 (La. 10/1/21), 324 So. 3d 1061.

Diamond B Constr. Co., Inc. v. Dep’t. of Transp. & Dev., 02-0573 (La. App.

1 Cir. 2/14/03), 845 So. 2d 429.

Attorney Fees

As a rule, attorney fees are not allowed in Louisiana unless they are

authorized by statute or provided for by contract. State v. Wagner, 10-0050

(La. 5/28/10), 38 So. 3d 240; Quinlan v. Sugar-Gold, 53,348 (La. App. 2

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Cir. 3/11/20), 293 So. 3d 722. Dunlap suggests that language unilaterally

authorizing the bank to recover attorney fees, which is buried in pages of

bank documents a customer receives when a new bank account is opened,

should not be elevated to contractual status. Dunlap argues that unlike

situations in which the parties to an agreement must acknowledge particular

waivers of rights or creation of obligations, the Bank simply embedded in its

documents what some may consider completely one-sided and onerous

provisions, allowing only the Bank to recover its attorney fees in disputes,

even if the Bank was unsuccessful.

While the content and placement of lopsided provisions permitting the

Bank to recover its attorney fees may be an important consideration in

deciding to do business with it, there is no doubt the disclosure in its entirety

was provided to Dunlap and she signed the forms acknowledging receipt of

same. Signatures are not mere ornaments. Tweedel v. Brasseaux, 433 So.2d

133 (La. 1983). A person who signs a written instrument is presumed to

know its contents and cannot avoid its obligations by contending that he did

not read it, or that it was not explained or that he did not understand it.

Smith v. Leger, 439 So.2d 1203 (La. App. 1 Cir.1983). Dunlap is deemed to

have read and understood those provisions. The banking relationship

established and agreed to by Dunlap was one where she had the option of

researching and seeking other commercially available alternatives with less

onerous conditions if she so chose. Dunlap elected not to do so, signed the

forms, and is held to their terms.

When it comes to awarding and fixing the amount of attorney fees,

courts may inquire into the reasonableness of attorney fees as part of their

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inherent authority to regulate the practice of law, regardless of the language

of the statutory authorization or the method employed by the trial court in

fixing the award. Smith v. State, 04-1317 (La. 3/11/05), 899 So. 2d 516;

Brightwell v. City of Shreveport, 54,824 (La. App. 2 Cir. 2/8/23), 356 So. 3d

586, and citations therein. Factors to consider in assessing the

reasonableness of a fee include (1) the ultimate result obtained, (2) the

responsibility incurred, (3) the importance of the litigation, (4) the amount of

money involved, (5) the extent and character of the work performed, (6) the

legal knowledge, attainment, and skill of the attorneys, (7) the number of

appearances involved, (8) the intricacies of the facts involved, (9) the

diligence and skill of counsel, and (10) the court’s own knowledge. State v.

Williamson, 597 So. 2d 439 (La. 1992); Quinlan v. Sugar-Gold, supra. The

appellate court reviews an award of attorney fees for an abuse of discretion.

Covington v. McNeese State Univ., 12-2182 (La. 5/7/13), 118 So. 3d 343;

Quinlan v. Sugar-Gold, supra.

La. C. C. P. art. 2088 provides, in pertinent part, with emphasis added:

A. The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the
appellate court attaches, on the granting of the order of
appeal and the timely filing of the appeal bond, in the case
of a suspensive appeal, or on the granting of the order of
appeal, in the case of a devolutive appeal. Thereafter, the
trial court has jurisdiction in the case only over those
matters not reviewable under the appeal, including the right
to do any of the following:

***

10. Set and tax costs, expert witness fees, and attorney
fees.

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La. C. C. P. art. 2592 provides, in pertinent part, that summary

proceedings may be used for trial or disposition of the following matters

only:

(1) An incidental question arising in the course of judicial
proceedings, including the award of and the determination of
reasonableness of attorney fees.

In response to Dunlap’s arguments, the Bank asserts that Dunlap is

contractually liable to the bank for its costs and attorney fees associated with

the defense of this lawsuit. The Bank argues that the executed signature

cards and Account Agreements provide clear terms and conditions, which

specifically provide for attorney fees in this case. We agree.

The Bank is entitled to its attorney fees and costs based on the

contract that Dunlap signed, not simply because it prevailed in the lawsuit

below. With the issue of a right to recover attorney fees addressed, the next

consideration is whether the Bank properly reserved the right to enforce

those provisions or whether the right was lost as the judgment sustaining the

exception and judgment from this court on subsequent appeal remain silent

on that specific topic.

We find the Bank successfully reserved its right to recover attorney

fees and costs associated with the lawsuit in the peremptory exceptions it

filed in this matter. Importantly, in both its first and second exception of no

cause of action and supporting memoranda, the Bank specifically stated that

it reserved “any and all claims and rights it has against Plaintiff and/or other

parties in interest, including without limitation, a) Bank’s claim for

attorneys’ fees and expenses in connection with this proceeding and related

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proceedings.” There was no challenge asserted by Dunlap to that assertion

beforehand.

La. C. C. P. art. 2088 provides the proper procedural device to

determine attorney fees and costs. Additionally, pursuant to La. C. C. P. art.

2592, the use of summary proceedings was appropriate in this matter, as it

was used to address incidental questions arising in the course of judicial

proceedings, including the award of and the determination of reasonableness

of attorney fees.

The nature of the hearings on the exceptions of no cause of action,

which allow no evidence and are based solely on the pleadings, prevented

the Bank from specifically arguing its claim for attorney fees when the trial

court was considering the merits of its peremptory exception. Though there

was a final judgment from the trial court on the merits of the peremptory

exception, a final judgment had not issued from this Court in the lawsuit.

Therefore, the trial court retained jurisdiction of the attorney fee issue, and

the motion was properly filed in the trial court while the appeal was still

pending.

We also find that res judicata does not apply in this instance. Because

the issue of attorney fees was specifically reserved for later litigation, the

trial court’s final judgment did not have the effect of barring the Bank’s

claims regarding attorney fees. The claims were properly reserved by the

only available vehicle to do so, and then properly raised by the motion to tax

costs and fix attorney fees, in accordance with La. C. C. P. art. 2088 after the

exception had been ruled on by the trial court. The Bank did not seek to

amend the August 24, 2023, final judgment from the trial court; rather, it

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sought to determine and assess attorney fees in the trial court, which retained

jurisdiction of that issue. Accordingly, we find assignments of error 1, 2, 4,

5, and 6 are without merit.

Assignment of Error Number 3: The trial court erred in overruling all
of Dunlap’s many objections to the admissibility of evidence in
connection with contractual attorney fees at the December 16, 2024,
hearing.

Dunlap argues that the Account Agreements and other disclosures

containing the attorney fee provision were not authenticated documents and

should not have been allowed to be introduced as evidence at the hearing on

the issue of attorney fees. She also points out that those Account

Agreements and disclosures were not individually signed by anyone.

Dunlap has not, however, pointed to any law or jurisprudence which requires

individual or authenticated signatures on each page of incorporated and

referenced provisions of an agreement.

The trial court is granted broad discretion in its evidentiary rulings,

which will not be disturbed on appeal absent a clear abuse of discretion.

Fields v. Walpole Tire Serv., LLC, 45,206 (La. App. 2 Cir. 5/19/10), 37 So.

3d 549, writ denied, 10-1430 (La. 10/1/10), 45 So. 3d 1097. At trial, a party

must make a timely objection to evidence that party considers to be

inadmissible and must state the specific ground for the objection. La. C.E.

art. 103(A)(1); La. C.C.P. art. 1635. On appeal, this court must consider

whether the complained of ruling was erroneous and whether the error

affected a substantial right of the party. Fields, supra. The determination is

whether the error, when compared to the record in its entirety, has a

substantial effect on the outcome of the case, and it is the complainant’s

burden to so prove. If there is no substantial effect on the outcome, then a

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reversal is not warranted. Fields, supra; Crisler v. Paige One, Inc., 42,563

(La. App. 2 Cir. 1/9/08), 974 So. 2d 125.

We find that the trial court correctly overruled Dunlap’s objections to

the evidence concerning attorney fees at the hearing on its attorney fees

motion. The record contains copies of the Account Agreement, as well as

the acknowledgement page containing Dunlap’s signature. As reproduced

and noted above, the acknowledgment page that Dunlap signed specifically

states she received the Account Agreement, which clearly provides for

attorney fees in any dispute with the Bank regarding her account. We find

that the trial court acted properly, within its broad discretion, in determining

that the Account Agreements were properly admitted as evidence and

permitting the testimony of bank employees on the topic. Accordingly, this

assignment of error is without merit.

Assignment of Error Number 7: The trial court’s award of $60,000 in
attorneys’ fees was excessive, as this case was dismissed by exception of
no cause of action and did not involve any discovery, written or
otherwise.

Finally, Dunlap argues the attorney fee of $60,000 is excessive,

asserting the litigation included only two exceptions of no cause of action,

and did not involve the introduction of evidence or any discovery. The Bank

argues that the attorney fee award is not excessive, because the matter

involved claims against a financial institution based on negligence and

contract, and involves intricate factual details that needed to be addressed

with extensive research and considerable skill. The Bank also argues that

the matter came before this Court in the prior appeal, requiring extensive

briefing and oral arguments in both appearances before this court concerning

this matter. The Bank asserts that it proved over $133,915.35 in attorney

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fees that were incurred, from a lawsuit where Dunlap sought over

$1,000,000.00 from the Bank in the accounts at issue.

The trial court, in balancing the necessary experience and expertise

with the complexity and breadth of issues addressed, determined a

reasonable attorney fee award would be $60,000. We find that the trial

court’s award of $60,000 in attorney fees was neither excessively high nor

abusively low. The trial court, following a detailed hearing, considered the

issue and amount in reaching its final award of attorney fees and was not

manifestly erroneous in reaching its conclusions. As such, Dunlap’s final

assignment of error is likewise without merit.

The Bank seeks to have the original attorney fee award increased to

$133,915.35, and requests additional attorney fees necessitated by this

appeal. The same rationale in reviewing the attorney fee award and denying

Dunlap’s request to reduce those fees applies to the analysis of the Bank’s

request to increase the attorney fee award. After a thorough review of the

record, we conclude the trial court did not abuse its wide discretion in fixing

the original attorney fee award of $60,000, and denying the Bank’s request

for an increase on that awarded below. We do, however, find the Bank is

entitled to an additional attorney fee for this appeal in the amount of $7,500,

plus all costs.

CONCLUSION

The trial court’s ruling awarding attorney fees in the amount of

$60,000 and costs in the amount of $896.00 is affirmed. Additionally, we

award an attorney fee of $7,500 for the necessary work on appeal by

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appellees’ counsel. Costs of this appeal are assessed to appellant, Pamela

Dunlap.

AFFIRMED.

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