David Moak VS American Equity Insurance Company, Louisiana Dirt Haulers, Inc., Louis E. Ashley, Burlington Northern and Santa Fe Railway Company, National Railroad Passenger Corporation, NRPC, a/k/a Amtrak and Raymond Tyler
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1763 DAVID MOAK VERSUS G AMERICAN EQUITY INSURANCE COMPANY LOUISIANA DIRT HAULERS INC LOUIS E ASHLEY BURLINGTON NORTHERN AND ANTA FE RAILWAY COMPANY NATIONAL RAILROAD PASSENGER CORPORATION Na k C P R a AMTRAK AND RAYMOND TYLER Judgment rendered i MAY 7 20 10 On Appeal from the Sixteenth Judicial District Court Parish of St Mary State of Louisiana Docket Number 108 Division G 548 The Honorable Paul J Demahy Judge Presiding Jack W Harang Counsel for Plaintiff Metairie La David Moak Timothy F Daniels Counsel for Defendants Dow Michael Edwards New Orleans La Burlington Northern and Santa Fe Railway Company and National Railway Passenger Corporation George P Hebbler Jr Counsel for Defendants Metairie La American Equity Insurance Company Louisiana Dirt Haulers Inc and Louis E Ashley Robert L Maynard Intervenor Robert L Maynard Intervenor Lisa Roberge Moak Dennis P Couvillion New Orleans La Elizabeth W Ramirez Covington La BEFORE DOWNING GAIDRY AND McCLENDON JJ P rva DOWNING J In this appeal plaintiffappellant David B Moak appeals a trial court judgment that denied him a new trial The trial court ruled that his motion for a new trial was untimely because the time delays began to run when one of Mr s Moak counsel of record was notified of the judgment but the other was not For the following reasons we affirm the trial court judgment The underlying lawsuit arose from a traintruck accident occurring December 17 2000 Mr Moak the train engineer filed suit against a trucking company and the driver that allegedly caused the accident and the railroads for whom he worked hereinafter Amtrak Robert L Manard an attorney from New Orleans filed the suit December 14 2001 on Mr Moak sbehalf Mr Moak hired new counsel and on March 20 2003 attorney Richard H Barker IV officially enrolled On September 15 2004 Mr Barker filed a notice to all parties and to the clerk of court that his address had changed to 3500 N Hullen St Metairie La 70002 The record reflects that Mr Barker law partner Jack W Harang of the s law firm of Harang and Barker 3500 N Hullen St Metairie La 70002 began representing Mr Moak Mr Harang filed numerous pleadings on Mr Moak s behalf including a motion and order to continue a status conference Various pleadings and orders filed by the defendants were served upon Mr Moak through Mr Harang at 3500 N Hullen St Metairie La 70002 Sometime after January 2005 and prior to May 2006 a settlement agreement was reached Although there is no signed document in the record memorializing that agreement on May 12 2006 a show cause order was served on Mr Moak through his attorney of record Mr Harang at 3500 N Hullen St Metairie La 70002 ordering him show cause why the motion to enforce the settlement should not be granted 2 On October 10 2006 a judgment on the motion to enforce the settlement agreement was signed by the court Notice ofjudgment was sent by the St Mary Parish 16 J Clerk of Court on October 11 2006 to Richard H Barker C D IV 612 Gravier St New Orleans La 70130 but not to Jack W Harang at 3500 N Hullen St Metairie La 70002 On August 21 2008 Mr Moak represented by Jack Harang at 3500 N Hullen St Metairie La 70002 filed a motion to unseal the abstract of the settlement agreement on the grounds that the unsigned unconditional release was not signed by Mr Moak It also stated that there was a provision in the alleged agreement that Mr Moak had not agreed to and wanted to contest specifically that Mr Moak would never seek reemployment with Amtrak On October 9 2008 Amtrak filed its opposition claiming that the motion to unseal was nothing more than a veiled attempt to circumvent the settlement agreed upon four years previously and enforced by judgment two years earlier On January 26 2009 Mr Harang filed a motion for new trial claiming that the motion was timely since he as counsel of record was never served with the October 2006 judgment at the address that he always had 3500 N Hullen St Metairie La 70002 Louisiana Code of Civil Procedure article 1913 requires that notice of judgment shall be mailed by the clerk of court to the counsel of record for each party Mr Barker enrolled as Mr Moak counsel of record in March 2003 Mr s Harang was clearly a counsel of record since Mr Harang had been representing Mr Moak for several years had filed a number of pleadings into the record and had received service on behalf of Mr Moak The issue in this case is whether Mr Moak was given adequate notice of the judgment when the notice of that judgment was mailed to one counsel of record Mr Barker but not to the other Mr Harang 3 It is well settled that notice to an attorney of record is notice to the client Jones v Rodrigue 00 0900 p 10 La 1 Cir 11 771 So 275 281 App 00 3 2d We therefore hold that under the provision of article 1913 notice to at least one counsel for each of the party litigants is sufficient See Baker v Gidiere 315 2d So 90 92 La 3 Cir 1975 Lirette v Roe 93 0441 4 Cir App App La 94 13 1 631 So 503 505 and Rose v Tittle 09193 p 5 La 5 Cir 2d App 09 27 10 27 So 932 934 Even so article 1913 requirement that notice be 3d s sent to counsel of record dictates that the better practice is that the clerk send notice to all counsel of record Since we have concluded however that notice to Mr Barker was sufficient to notify Mr Moak and begin the delays for a request for new trial and appeal we find no merit in Mr Harang argument s Here the counsel of record Richard H Barker IV enrolled on March 20 2003 It is problematic that Mr Barker was served with the judgment at a completely different address than the one to which the previous notices were sent However since we have determined that Mr Moak was sufficiently notified according to the law the assignment of error is without merit and the judgment is affirmed DECREE We affirm the trial court judgment All costs of this appeal are assessed to plaintiffappellant David W Moak AFFIRMED 4 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1763 DAVID MOAK VERSUS AMERICAN EQUITY INSURANCE COMPANY LOUISIANA DIRT HAULERS INC LOUIS E ASHLEY BURLINGTON NORTHERN AND SANTE FE RAILWAY COMPANY NATIONAL RAILROAD PASSENGER CORPORATION Na ka AMTRAK AND RAYMOND TYLER C P R McCLENDON 7 concurs and assigns reasons I concur with the result reached by the majority See Fidelity Nat Bank of Baton Rouge v Calhoun 081685 pp 11 12 La 1 Cir 3 11 App 09 27 3d So 1119 1127
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