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
2 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
3 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.
4 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
5 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.
6 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
7 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
8 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.
9 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
10 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
11 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
12 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
13 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
14 appellees’ counsel. Costs of this appeal are assessed to appellant, Pamela
Dunlap.
AFFIRMED.