Crystal R. Moffett and Marcus D. Moffett v. Michael Lyons

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-744

CRYSTAL R. MOFFETT AND MARCUS D. MOFFETT

VERSUS

MICHAEL LYONS, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 80484
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

David R. Rabalais
The Dill Firm
825 Lafayette Street
Lafayette, LA 70502
(337) 261-1408
COUNSEL FOR DEFENDANTS/APPELLANTS:
Michael Lyons
Houston Specialty Ins. Co.
Shannon Gaspard Trucking, LLC

Bart J. Hebert
J. Brent Barry
Boyer & Hebert, LLC
401 E. Mills Avenue
Breaux Bridge, LA 70517
(337) 332-0616
COUNSEL FOR PLAINTIFFS/APPELLEES:
Crystal R. Moffett
Marcus D. Moffett

SAVOIE, Judge.

Defendants appeal the trial court’s judgment denying their motion for court

costs filed pursuant to La.Civ.Code art. 970. For the following reasons, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

This appeal arises from an auto accident between Plaintiff Crystal Moffett

and Defendant Michael Lyons. Mrs. Moffett and her husband filed suit seeking

damages allegedly resulting from the accident. On June 25, 2015, prior to trial,

Defendants filed a motion for judgment on offer of judgment in accordance with

La.Civ.Code art. 970 for $87,500 “inclusive of costs, interest, attorney’s fees, and

any other amount which may be awarded.” Ultimately, the jury awarded Mrs.

Moffett with a total of $40,000 in damages.1

On May 25, 2016, Defendants filed a motion to fix costs arguing that the

$40,000 awarded by the jury was over 25% less than the amount they offered, and

therefore, in accordance with La.Code Civ.P. art. 970, they were entitled to

$51,521.73 in costs. On September 21, 2016, Plaintiffs filed a Motion to Tax

Costs seeking a total of $33,126.95. A hearing was held on the parties’ respective

motions on November 3, 2016.

The trial court ultimately granted Plaintiffs’ motion, and taxed as costs

Plaintiffs’ expenses totaling $14,473.93, which included: $2,031.79 for medical

records expense; $7,885.00 as expert fees, and $4,557.14 in judicial interest. The

judgment further ordered that each party bear their own court costs.2

1
Plaintiffs’ appeal of the damages award is at issue in Moffett v. Lyons, 17-742 (La.App. 3 Cir.
__ / __/18), __ So.3d ___, wherein we increased the total damages awarded to $43,447.
2
Plaintiffs’ appeal of the portion of the trial court’s judgment assessing each party with its own
court costs is the subject of Moffett v. Lyons, 17-743 (La.App. 3 Cir. __ / __/18), __ So.3d ___,
wherein we affirmed.

The trial court also denied Defendants’ motion for costs. In its reasons for

judgment, the trial court found that the total awarded was in fact less than 25% of

the Defendants’ offer, as contemplated by La.Code Civ.P. art. 970; however, it also

found that because this article is punitive, and the total awarded was not much less

than 75% of the offer, Plaintiffs were reasonable in going to trial.

Defendants appeal arguing that the trial court erred by “impos[ing] a

‘reasonableness’ requirement that is not found in the text or jurisprudence

interpreting La. Code Civ. Proc. Art. 970.”

ANALYSIS

Louisiana Code of Civil Procedure Article 970 states in pertinent part as

follows (emphasis added):

A. At any time more than twenty days before the time specified
for the trial of the matter, without any admission of liability, any party
may serve upon an adverse party an offer of judgment for the purpose
of settling all of the claims between them. The offer of judgment shall
be in writing and state that it is made under this Article; specify the
total amount of money of the settlement offer; and specify whether
that amount is inclusive or exclusive of costs, interest, attorney fees,
and any other amount which may be awarded pursuant to statute or
rule. . . .

....

C. If the final judgment obtained by the plaintiff-offeree is at
least twenty-five percent less than the amount of the offer of
judgment made by the defendant-offeror . . . , the offeree must pay the
offeror’s costs, exclusive of attorney fees, incurred after the offer was
made, as fixed by the court.

....

E. For purposes of comparing the amount of money offered in
the offer of judgment to the final judgment obtained, which judgment
shall take into account any additur or remittitur, the final judgment
obtained shall not include any amounts attributable to costs, interest,
or attorney fees, or to any other amount which may be awarded
pursuant to statute or rule, unless such amount was expressly
included in the offer.

2

We first consider whether the judgment against Defendants is at least

twenty-five percent less than their $87,500 offer. In other words, for La.Code

Civ.P. art. 970(C) to be applicable, the judgment against Defendants must be

$65,625, or less.

Because Defendants’ offer was inclusive of costs and interest, we consider

the total amount of costs and interest assessed to the Defendants, in addition to the

amount of damages awarded to Plaintiffs, when comparing the total judgment to

Defendants’ offer. Therefore, we calculate the amount of the judgment against

Defendants for purposes of La.Civ.Code. art. 970 to be $66,475.86. This includes:

$43,447.00 in damages awarded against Defendants; 3 $14,473.93 for Plaintiffs’

expenses taxed as costs and legal interest; and $8,554.93 for Defendants’ own

court costs, which the trial court assessed to Defendants.4 Because this amount is

greater than $65,625.00, Defendants are not entitled to costs contemplated by

La.Code Civ.P. art. 970(B). Therefore, the remainder of the issues raised by

Defendants on appeal are moot.

CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment denying

Defendants’ motion to fix costs. Costs of this appeal are assessed to Defendants.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

3
See Moffett v. Lyons, 17-742 (La.App. 3 Cir. __ / __/18), __ So.3d ___, wherein we increased
the total damages awarded to $43,447.
4
We note that in its written reasons, the trial court calculated the amount of the judgment against
Defendants for purposes of La.Code Civ.P. art. 970 using the Plaintiffs’ court costs, which may
have been inadvertent given the total was similar in number to Defendants’ costs. However,
Defendants were not cast with Plaintiffs’ court costs therefore we do not consider Plaintiffs’
costs in our calculation.

3