Robert W. Lovett, Jr. as Administrator, Etc. v. Starr Wheat Brown

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1749

ROBERT W. LOVETT, JR., AS ADMINISTRATOR OF THE ESTATE OF
ROBERT W. LOVETT

VERSUS

STAR WHEAT BROWN, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 02-5596
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********

Court composed of Sylvia R. Cooks, Billie Colombaro Woodard, and Marc T. Amy,
Judges.

REVERSED AND RENDERED.

Richard D. Moreno
Wright & Moreno, L.L.C.
Post Office Box 1416
Lake Charles, Louisiana 70602
(337) 439-6930
COUNSEL FOR APPELLANT AND DEFENDANT:
Attorney Ad Hoc, in Proper Person
William Coulter

Burlyne Van Dyke
Van Dyke–Dowers Law Firm
1302 Common Street
Lake Charles, Louisiana 70601
(337) 439-6930
COUNSEL FOR PLAINTIFF/APPELLEE:
Robert W. Lovett, Jr., as Administrator of the estate of Robert W. Lovett

Starr Wheat Brown
781 Jordan Deville Road
Longville, Louisiana 70652
(337) 725-4405
IN PROPER PERSON:
Starr Wheat Brown

WOODARD, Judge.

On appeal, we consider whether it was proper for the trial court to deny Richard
D. Moreno, the Defendant’s Attorney Ad Hoc, a reasonable fee for serving in that
capacity because the Defendant later retained him to serve as his private counsel. We
reverse.

*****

On November 12, 2002, Robert W. Lovett, Jr., as Administrator of the
succession of Robert W. Lovett (Decedent), filed a petition to include, in the
succession, certain assets that the Defendants, Star Wheat Brown and William Lamar
Coulter, allegedly removed from the Decedent’s estate. Specifically, Mr. Lovett
claimed that Mr. Coulter withdrew $56,160.96 (represented by five (5) certificates of
deposit on which the Decedent and Mr. Coulter were co-payees) from Whitney
National Bank sometime before or after the Decedent’s death.
On April 30, 2003, Mr. Lovett filed a “Motion and Order to Appoint Curator”
due to his inability to serve Mr. Coulter, an absentee and nonresident of Louisiana, via
Louisiana’s Long Arm Statute.1 The trial court granted this motion and appointed
Richard D. Moreno to serve as Attorney Ad Hoc for Mr. Coulter.
On May 6, 2003, Mr. Moreno was served on Mr. Coulter’s behalf. Immediately
thereafter, he tried to locate Mr. Coulter by purchasing newspaper advertisements,
employing a private investigator to search computer databases, and mailing copies of
the petition and citation to his last known address.
On approximately May 16, 2003, after receiving the copy of the petition and
citation that Mr. Moreno had mailed, Mr. Coulter contacted him to discuss this suit.
Subsequently, on June 9, 2003, he hired Mr. Moreno and the law firm of Wright
& Moreno, L.L.C. to defend him in this action.
On August 12, 2003, Mr. Moreno filed a motion to withdraw, as Attorney Ad
Hoc, in which he notified the trial court and opposing counsel that Mr. Coulter had
hired him and his law firm as regular counsel in this matter. He also requested that
the trial court set and tax as court costs the reasonable fee owed to him, under La.Code

1
See La.R.S. 13:3201; See also La.R.S. 13:3204.

1

Civ.P. art. 5096, for the services he provided while acting as Attorney Ad Hoc for Mr.
Coulter.
On September 25, 2003, the trial court signed an order, granting Mr. Moreno
leave to withdraw as Attorney Ad Hoc for Mr. Coulter. However, it denied his request
for compensation for serving as Attorney Ad Hoc, noting that its decision to withhold
payment was based on this court’s reasoning in Misko v. Capuder.2 In Misko, this
court opined that a trial court cannot allow the attorney ad hoc to receive the
reasonable fee, which Article 5096 mandates, when the absent defendant represented
by the attorney ad hoc subsequently hires the attorney ad hoc to serve as his/her
private counsel.3
On appeal, Mr. Moreno asserts that: (1) the trial court abused its discretion
when it denied him reasonable compensation under Article 5096 for the work he
performed as Attorney Ad Hoc before the Defendant retained him; (2) Misko is
contrary to prior jurisprudence and the plain language of Article 5096; (3) this court
should determine, on the record and without remand, the reasonable amount that the
Plaintiff owes him, which the trial court should have taxed as costs of court, for the
services he provided as Attorney Ad Hoc; and (4) he is entitled to an increase in
attorney fees for the work done on this appeal.

*****

THE ATTORNEY AD HOC

The Louisiana Code of Civil Procedure Article 5091 provides, in part:

A. The court shall appoint an attorney at law to represent the
defendant, on the petition or ex parte written motion of the plaintiff,
when:

(1) It has jurisdiction over the person or property of the defendant,
or over the status involved, and the defendant is:

(a) A nonresident or absentee who has not been served with
process, either personally or through an agent for the service of process,
and who has not waived objection to jurisdiction.

2
147 So.2d 661 (La.App. 3 Cir. 1962).
3
Id.

2

....

B. All proceedings against such a defendant shall be conducted
contradictorily against the attorney at law appointed by the court to
represent him. . . .

C. The improper designation of the attorney appointed by the court
to represent such a defendant as curator ad hoc, tutor ad hoc, special
tutor, or any other title, does not affect the validity of the proceeding.

The attorney ad hoc must use reasonable diligence to communicate with the
nonresident or absent defendant and inform him/her of the pendency and nature of the
action or proceeding and of the time available for filing an answer or asserting a
defense.4
Furthermore, La.Code Civ.P. art. 5095 provides:

The attorney at law appointed by the court to represent a defendant
shall use reasonable diligence to inquire of the defendant, and to
determine from other available sources, what defense, if any, the
defendant may have, and what evidence is available in support thereof.

Except in an executory proceeding, the attorney may except to the
petition, shall file an answer in time to prevent a default judgment from
being rendered, may plead therein any affirmative defense available, may
prosecute an appeal from an adverse judgment, and generally has the
same duty, responsibility, and authority in defending the action or
proceeding as if he had been retained as counsel for the defendant.

Comment (a) to Article 5095 further explains that the attorney ad hoc’s sole function
is to defend the pending action or proceeding, and, as such, s/he does not have the
authority to force the defendant to become the actor by filing a separate suit in the
defendant’s name, by calling a third party defendant, or by reconvening.
In Johnson v. Jones, our supreme court identified the source of authority
granted to the attorney ad hoc:

A [attorney] ad hoc is appointed for a particular purpose under express
statutory authority. His powers are strictly limited to those conferred by
law, and cannot be extended to the performance of any other acts than
such as tend to the defense of the rights and the protection of the interests
of the absentee whom he represents.

4
La.Code Civ.P. art. 5094.

3

. . . The [attorney] ad hoc is not the attorney of the defendant. He has
no mission nor authority derived from [the defendant]. He represents
[the defendant] only by virtue of his appointment by the judge of the
district court under the authority conferred upon him by law. His
compensation is due him as [attorney] ad hoc, and not as counsel, of the
absent defendant.[5]

(Emphasis added.) Accordingly, the supreme court acknowledged that the duties
imposed upon the attorney ad hoc are statutory in nature; thus, s/he does not derive
authority from or owe duties to the absent defendant except those which the statute
imposes.6 If, however, the absent defendant ultimately retains the attorney ad hoc as
his/her private counsel, the attorney ad hoc’s statutory authority and duties cease.7

The Attorney Ad Hoc’s Reasonable Fee

In response to Plaintiff’s “Motion and Order to Appoint Curator” in this matter,
the trial court appointed Mr. Moreno to serve as Mr. Coulter’s attorney. In fulfillment
of his duties as Attorney Ad Hoc, Mr. Moreno found Mr. Coulter and informed him
of the suit brought against him, however, the trial court denied his request for
compensation for serving in that capacity. Mr. Moreno asserts that this decision was
incorrect. We agree.
Louisiana Code of Civil Procedure Article 5096 provides, in part:

The court shall allow the attorney at law appointed to represent a
defendant a reasonable fee for his services, which shall be paid by the
plaintiff, but shall be taxed as costs of court.

The attorney so appointed may require the plaintiff to furnish
security for the costs which may be paid by, and the reasonable fee to be
allowed, the attorney.

If the attorney so appointed is retained as counsel for the
defendant, the attorney shall immediately advise the court and opposing
counsel of such employment.

5
170 LA. 760, 129 So. 155, 156 (La.1930) (citations omitted).
6
Id.
7
See Tarver v. Allaun, 47 So.2d 440 (La.App. 2 Cir. 1950).

4

(Emphasis added.) The first paragraph of Article 5096 is clear and unambiguous.
Therefore, we must apply it as written unless that application leads to absurd
consequences.8 In ABL Management, Inc. v. Board of Supervisors, our supreme court
further explained:

It is well established that when a statute is clear and free of
ambiguity, it must be given effect as written. Words and phrases shall
be read with their context and shall be construed according to the
common and approved usage of the language. When interpreting a
statute, the court should give it the meaning the Legislature intended. .
. . The Legislature is presumed to have enacted each statute with
deliberation and with full knowledge of all existing laws on the same
subject. A statute’s meaning and intent is determined after consideration
of the entire statute and all other statutes on the same subject matter, and
a construction should be placed on the provision in question which is
consistent with the express terms of the statute and with the obvious
intent of the Legislature in its enactment of the statute. Where it is
possible, the courts have a duty in the interpretation of a statute to adopt
a construction which harmonizes and reconciles it with other provisions.
. . . A construction of a law which creates an inconsistency should be
avoided when a reasonable interpretation can be adopted which will not
do violence to the plain words of the statute and will carry out the
Legislature’s intention. Ultimately, it is clear that the law provides that
the statute be accorded a fair and genuine construction. A reasonable
construction in light of the statute’s purpose is what is required.[9]

Also, we should avoid interpreting statutes in a manner that will lead to harsh or
unjust results.10
According to the clear language of Article 5096, the payment of a “reasonable
fee” to court appointed attorneys for their services is mandatory. That language,
providing for a “reasonable fee,” has no qualifications or limitations except those
inherent in the determination of reasonableness. Thus, nothing in Article 5096 or any
other provision prohibits an attorney ad hoc, who an absent defendant subsequently
retains, from being compensated for fulfilling his attorney ad hoc duties.

8
See ABL Mgmt., Inc. v. Bd. of Supervisors, 00-798 (La. 11/28/00), 773 So.2d
131.
9
Id. at 135 (citations omitted).
10
See Guste ex rel. Courville v. Burris, 427 So.2d 1178 (La.1983).

5

Therefore, we must apply Article 5096 as written and award Mr. Moreno a
reasonable amount for his service as Attorney Ad Hoc, as this interpretation will not
lead to harsh, unjust, or absurd consequences.
Nevertheless, we are mindful of this court’s seemingly contrary decision in
Misko. Specifically, the Misko court stated:

[Mrs. Capuder] urges that she is entitled to a reasonable allowance as
attorney’s fees, particularly because of the added legal expense
necessitated by these proceedings and by this appeal, and that these fees
should be taxed as costs under the provisions, of [Article 5096]. The
evidence shows that Mrs. Capuder was absent from the State of
Louisiana at the time the rule nisi was issued on September 20, 1961, and
accordingly, an attorney at law was appointed to represent her in this
proceeding. Later, however, she employed the same attorney as her
counsel and she has paid him a sum of money as his fee. She and her
counsel contend that the amount which she paid was inadequate and that
she is not financially able to pay any more.

In our opinion, attorney’s fees may not be allowed and taxed as
costs under the provisions of [Article 5096] if the attorney is retained as
counsel for the defendant subsequent to his appointment to represent her.
For that reason we feel that Mrs. Capuder’s demand that she be allowed
attorney’s fees and that they be taxed as costs must be rejected.[11]

This conclusion is contrary to Article 5096's clear mandate and leads to an unjust
result. Later, this court correctly noted in State in Interest of HLD v. CDM that
“ordering attorneys to serve without compensation is hardly practical, especially
considering modern economic conditions.”12
Furthermore, our supreme court, in In re Juakali,13 held that an attorney’s
attempt to collect attorney ad hoc fees directly from the located defendant without
court application or approval was actually an attempt to collect unauthorized fees and
clearly violated Article 5096's mandate that this fee “be taxed as costs of court.” In
fact, any steps taken by the attorney ad hoc to circumvent the court’s mandatory

11
147 So.2d at 664-65.
12
State in Interest of HLD v. CDM, 563 So.2d 360, 368 (La.App. 3 Cir. 1990).
13
Id.

6

involvement in setting this fee could result in the disciplinary counsel bringing formal
charges against the attorney ad hoc.14
For the reasons cited above, we hold that Mr. Moreno should receive a
reasonable fee that “shall be paid by the plaintiff, but shall be taxed as costs of court”
for the work he performed on behalf of Mr. Coulter as Attorney Ad Hoc.15

CONCLUSION

We set aside the trial court’s judgment and award Mr. Moreno $1,790.84 for
serving as Attorney Ad Hoc and $1,500.00 for his work on appeal to secure his
Attorney Ad Hoc fee.16 The Plaintiff, Mr. Lovett, in his capacity as Administrator,
must pay these amounts, which we tax as costs of court.17 We further assess all costs
of this appeal to the Plaintiff.

REVERSED AND RENDERED.

14
Id.
15
La.Code Civ.P. art. 5096.
16
See Light v. Crowson Well Serv., Inc., 313 So.2d 803 (La.1975).
17
See La.Code Civ.P. art. 5096; See also State of La., Dep’t of Transp. & Dev.
v. Falcone, 487 So.2d 588 (La.App. 4 Cir. 1986).

7