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LUCY BROOKS                                                    *   NO. 2008-CA-0908
VERSUS                                                         *
                                                                   COURT OF APPEAL
LOUISIANA CITIZENS FAIR                                        *
PLAN AND STATE NATIONAL                                            FOURTH CIRCUIT
INSURANCE COMPANY                                              *
                                                                   STATE OF LOUISIANA
                                                               *
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2006-9120, DIVISION “L-6”
HONORABLE KERN A. REESE, JUDGE
JUDGE PAUL A. BONIN
(COURT COMPOSED OF JUDGE JAMES F. MCKAY, III, JUDGE DAVID S.
GORBATY, JUDGE PAUL A. BONIN)
LUCY BROOKS
13 MADISON STREET
NATCHEZ, MS 39120
IN PROPER PERSON, PLAINTIFF APPELLANT
FRANK J. ACHARY
BIENVENU FOSTER RYAN & O'BANNON, LLC
1010 COMMON STREET
SUITE 2200
NEW ORLEANS, LA 70112
COUNSEL FOR LOUISIANA CITIZENS PROPERTY INSURANCE
CORPORATION, INCORRECTLY REFERRED TO AS LOUISIANA
CITIZENS FAIR PLAN
JANUARY 28, 2009
AFFIRMED




Lucy Brooks owned a one-half undivided interest in a home on East Hermes
Street in New Orleans.1  The home was collateral for a loan from Wilshire Credit
Corporation.  She had fallen behind in her monthly payments to Wilshire, and the
mortgage company instituted foreclosure proceedings on her home.2  She then filed
a petition for relief under Chapter 13 of the United States Bankruptcy Code.3  The
Chapter 13 filing effected an automatic stay of the foreclosure proceedings and Ms.
Brooks was allowed to remain in her home without threat of foreclosure so long as
she complied with the plan for repayment of her creditors and other conditions.
Almost immediately an issue arose with Wilshire Credit about whether she
was complying with her Chapter 13 plan by maintaining flood and hazard
insurance on her home.  She secured hazard insurance on her home through the
Powell Insurance Agency with the Louisiana Citizens Property Insurance
Corporation. The declarations sheet of the policy binder showed that the period of
coverage was from April 13, 2004 to April 13, 2005.  Ms. Brooks was paying the
1
Her mother, Ms. Lizzie Mathis, is also a co-owner of the remaining interest.
2
LaSalle National Bank v. Lucy Jones Brooks, Civil District Court for the Parish of Orleans, # 2004-05195 “G”.
3
In re Lucy J. Preston (nee Brooks), United States Bankruptcy Court for the Eastern District of Louisiana, # 2004-
12702.
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premium for the policy in installments, payable at her insurance agent’s office.
During this coverage period the creditor, it seems, occasionally forced place hazard
and flood insurance on the property from time to time due to dissatisfaction on its
part that Ms. Brooks was continuously maintaining the required insurance
coverages.
In any event, Ms. Brooks obtained a renewal policy from Louisiana Citizens
Property Insurance Company with the coverage period, according to the
declarations sheet, from April 17, 2005 to April 17, 2006.  About that same time
there was a hearing on the bankruptcy trustee’s motion to dismiss her case for non-
compliance with the plan.   On April 26, 2005 the bankruptcy court signed an order
in which her case was dismissed and the stay which had issued pursuant to 11
U.S.C. 362 was vacated.
On June 6, 2005 a notice of cancellation for non-payment premium of the
Louisiana Citizens’ policy number FZD 0333548 01 was sent to Ms. Brooks at her
home address as shown on the policy.  It showed that the amount due was $83.32
and that the policy would be cancelled effective June 30, 2005.   By June 27, 2005
Ms. Brooks apparently made the payment to her agent and who in turn remitted it
to the insurance company.4 The company issued a notice of reinstatement effective
June 30, 2005.  The policy was not cancelled.
Not very much later on July 22, 2005 a similar notice of cancellation for
non-payment of premium was sent to Ms. Brooks’ home address.  This time the
4 There is a copy of the agent’s check made payable to the company in the amount of $83.32.
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amount due was $204.16 for the installment that was then due.  This time the
policy was to be cancelled effective August 15, 2005.
On August 29, 2005 New Orleans met Hurricane Katrina and her winds.
The levees failed.  Ms. Brooks’ home was destroyed.
The Proceedings in the District Court
Ms. Brooks, without the benefit of counsel, filed suit in the Civil District
Court.  The district court allowed her to proceed without the prepayment of costs
on account of her “poverty or lack of means”.   La. C.C.P. arts. 5181 et seq.  The
defendants were Louisiana Citizens5 and State National Insurance Company.  She
alleged that the companies insured her home for the losses she sustained from the
storm.  The district court issued its case management order which it had
established to expedite the processing of the multitude of storm claims.
Louisiana Citizens filed a standard pleading in the Katrina cases, excepting
to the lawsuit on the grounds of a pending class action suit and admitting the
issuance of the policy to Ms. Brooks subject to its terms and conditions.  Its answer
set forth that it had tendered payment to her for any losses of covered perils.  Its
answer also specially pleaded, apparently contradictorily, that the policy was
“properly cancelled prior to August 28, 2005, and there was no coverage for the
loss alleged herein.”
State National answered, explaining that it was the forced placed insurer of
Wilshire Credit, the mortgagor.  It further explained that its policy included flood
5 She initially named this defendant as Louisiana Citizens Fair Plan, a not uncommon practice and error due to
materials issued by Louisiana Citizens Property Insurance Company, its correct legal name.
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coverage, although under another policy number, and that the total afforded
coverage for Ms. Brooks’ property was $80,000.  Its answer challenged Ms.
Brooks’ right to recover under State National’s policy as it was only insuring her
creditor’s interest.  State National also declared that it had adjusted the loss and
paid Wilshire Credit the full amount of the policy proceeds of $80,000.6
Louisiana Citizens filed a motion for summary judgment on the grounds that
the policy had been properly cancelled before the loss event.  Counsel for Ms.
Brooks enrolled.  State National filed its motion for summary judgment on the
grounds that Ms. Brooks was not an insured, having no right of action against it,
and that it had fully paid its liability to Wilshire Credit.  Ms. Brooks filed her
motion for summary judgment on the grounds that Louisiana Citizens had admitted
in its answer that it provided coverage and that the materials submitted by State
National in its motion established the extent of the losses.
Louisiana Citizens obtained leave of court to amend its answer and clarify
its position.
The district court granted State National’s motion and dismissed Ms.
Brooks’ claim against it with prejudice at her costs.  No appeal from this judgment
of September 12, 2007 was taken and it is now final.
The district court by judgment dated June 9, 2008 denied Ms. Brooks’
motion for summary judgment, but granted Louisiana Citizens’ motion for
6 We are unable to determine from the record before us whether this payment extinguished her debt to Wilshire
Credit.  In her Chapter 13 filing in 2004 she reported the claim as being in the amount of $74,723.
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summary judgment and dismissed her suit with prejudice.  She timely filed for a
devolutive appeal to this court from the June 9, 2008 judgment.
Review on Appeal
Ms. Brooks on appeal is without counsel.7
Appellate courts review summary judgments de novo under the same criteria
that govern the district court's consideration of whether summary judgment is
appropriate:  whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.  King v. Parish Nat’l Bank, 04-
0337, p. 7 (La. 10/19/04), 885 So. 2d 540, 545.  A motion for summary judgment
will be granted "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to material fact, and that mover is entitled to judgment as a matter
of law." La. C.C.P. art. 966(B).  Favored in Louisiana, the summary judgment
procedure is designed to secure the just, speedy, and inexpensive determination of
every action, and should be construed to accomplish those ends.   La. C.C.P. art.
966(A)(2).
Application of the Law to the Uncontested Fact
We have reviewed the materials introduced by Louisiana Citizens in support
of its motion for summary judgment.  These include the policy itself, with Ms.
Brooks’ billing address which was her home, the notice of cancellation sent to that
7 The record does not show a motion to withdraw filed by her counsel in the district court.    However, her motion for
appeal was signed by her in proper person, she filed her original appellant’s brief and her reply brief in proper
person, and she appeared and ably and courteously orally argued her case in this court.  We also note that counsel
opposing her was at all times professional and considerate toward her.
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address, with a copy to her insurance agent, the certificate of mailing to her, and
the certification by affidavit of Connie Stelly that the mail was not returned to the
service provider for Louisiana Citizens.
The insurance policy, which is the agreement between the parties, authorizes
in Paragraph 17(b)(1) of the “Conditions” of the policy that the company may
cancel the policy for non-payment of the premium by giving the policyholder by
mail 10 days notice before the effective date of cancellation.  Proof of mail shall
constitute sufficient notice.  The notice to Ms. Brooks was mailed on July 22, 2005
and the effective date of August 15, 2005 was, of course, more than 10 days.
The provision of the policy is consistent with the controlling provisions of
law.  La. R.S. 22:636(A)(4) provides in pertinent part:
(4) Any policy may be cancelled by the company at any time
during the policy period for failure to pay any premium when due
whether such premium is payable directly to the company or its agent
or indirectly under a premium finance plan or extension of credit, by
mailing or delivering to the insured written notice stating when, not
less than ten days thereafter, such cancellation will be effective. . .
In Ms. Brooks’ opposition filed by her counsel, she confirms that her
insurance agent sent her on July 27, 2005 a courtesy reminder that her payment of
$204.16 must reach Louisiana Citizens by August 15, 2005.
Moreover, in her opposition memorandum she asserts that upon receiving
this notification she “remitted said amount to defendant on July 28, 2005”,
apparently without ever stating by payment through her agent.8  She attached to her
8 The opposition memorandum reports that a summary judgment had been denied in her case against the agent
pending in the 24th Judicial District Court for the Parish of Jefferson, entitled “Lucy Brooks v. Powell Insurance
Agency,” # 635-350 “B”.  Attached as exhibit, albeit unverified,  is the defendant’s motion and memorandum in
support of the motion for summary judgment and a photocopy of the judgment.  We have reviewed these
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memorandum an “affidavit” which declared that she is the plaintiff in this suit,
that she read “the entirety” of the opposition memorandum, and “all of the
allegations of fact contained therein are true and correct.”
She also attached a photocopy of an unverified document which appears to
have been generated first by Louisiana Citizens with a preprinted notation
“Agent’s Copy”, which appears to be a copy of the notice of cancellation mailed to
Ms. Brooks dated July 22, 2005.  On this document are handwritten notations and
stamped notations, none of which exist on Louisiana Citizens’ verified copy of the
notice of cancellation introduced with its motion.  One of the stamps added to the
document, situated on the payment coupon portion, shows “RECEIVED  JUL 28
2005   POWELL INSURANCE, INC.”   We are to infer, we understand, from this
stamp that it is the receipt by Powell Insurance Agency of the amount owed by her
to Louisiana Citizens.
Louisiana Citizens argues that its evidence established that it had not
received payment of the delinquent premium before August 15, 2005 and further
argues that Ms. Brooks introduced no countervailing evidence that she did timely
pay the overdue premium, entitling her to a continuation of coverage under the
policy.  We agree.
We have previously held in Kaufman v. Cleaton, 2003-0452, p. 3 (La. App.
4 Cir. 10/8/03), 861 So. 2d 586, 588 that
The “Verifying Affidavit” filed by the defendant making the
generalized assertion that “all of the allegations contained in her
Answer and in her ‘Memorandum in Opposition to Beatrice
Kaufman’s Motion for Summary Judgment’ are true and correct to the
attachments and note that the arguments set out by the insurance agent do not apply to the notice of cancellation
dated July 22, 2005, which we have under consideration, but to an earlier notice dated June 6, 2005, which we are
not considering.  Parenthetically we observe that payment must have been made for the June 6, 2005 otherwise the
cancellation would have been effected on June 30, 2005 and that the dispute about the July 22, 2005 notice would
never have arisen.
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best of her information, knowledge, and belief,” is not sufficient to
meet the La. C.C.P. art. 967 requirements that summary judgment
affidavits “set forth specific facts.”
Accordingly, we disregard the “affidavit” filed by Ms. Brooks.  Her reference to
and verification of the “allegations of fact” contained in it do not “set forth specific
facts.”
Next we evaluate the unverified document which was submitted by Ms.
Brooks in connection with her opposition.  We must, at best, infer from the
document that it somehow constitutes a business record of Powell Insurance and,
more importantly, that it is proof that Ms. Brooks made her premium payment to
her insurance agent.   La. C.C.P. art. 967(A) also requires that an opposing affidavit
“shall set forth facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”
No affidavit was submitted or introduced by Ms. Brooks attesting to the
authenticity of this document.   “In summary judgment proceedings, a document
that is ‘not certified or attached to an affidavit is not of sufficient evidentiary
quality to be given weight in determining whether or not there remain genuine
issues of material fact.”   Stuart v. New City Diner, 1999-2270, p. 9 (La. App. 4 Cir.
3/15/00), 758 So .2d 345, 350.  We have reinforced this in our holdings in Granier
v. Avondale Industries, Inc., 2005-1085, p. 5, (La. App. 4 Cir. 8/16/06), 940 So. 2d
678, 681 where we reiterated the holding in Williams v. Memorial Medical Center,
2003-1806, pp.14-15, (La. App. 4 Cir. 3/17/04), 870 So. 2d 1044, 1053:
In meeting the burden of proof, unverified documents, such as letters
or reports, annexed to motions for summary judgment are not self-
proving and therefore will not be considered; “merely stapling them to
a motion for summary judgment” does not “magically” transform
such documents into competent summary judgment evidence.   Schully
v. Hughes, 2000-2605, p. 5 (La. App. 4 Cir. 6/5/02), 820 So. 2d 1219,
1222.
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These cases are jurisprudential expressions of the requirements set out in La. C. E.
arts. 803(6), 901(A), and 902 when applied to summary judgments.
Since Ms. Brooks did not introduce her own affidavit on her own personal
knowledge specifically declaring that she had paid the overdue premium to
Louisiana Citizens and since she introduced no affidavit of a qualified person to
which the document would have been attached, Delcambre v Price, 1999-0223, p.
4 (La. App. 4 Cir. 3/24/99), 738 So.2d 593, 595 ( “. . . where business records are
concerned, the courts have deemed it sufficient that the affiant be qualified to
identify the business records as such”),  we are compelled to conclude that there is
no genuine issue of material fact precluding the granting of summary judgment in
favor of Louisiana Citizens.
Ms. Brooks has also appealed the denial of her motion for summary
judgment.  Her contentions, in addition to those addressed concerning Louisiana
Citizens’ motion, are that Louisiana Citizens “admitted” coverage in its original
answer and invited her to mediate her claim prior to the filing of summary
judgment motions.  As we stated earlier, Louisiana Citizens was permitted by the
court without objection from Ms. Brooks’ counsel to amend its answer.  La. C.C.P.
art. 1151.  The amendment in effect deleted the boilerplate averment of “tender”
and simply substituted a denial of Ms. Brooks’ allegation in paragraph 7 of her
petition.    Ms. Brooks’ motion simply did not take this amendment into
consideration.  The resulting pleadings by Louisiana Citizens cannot be
characterized as a “judicial confession” on its part.  With regard to Louisiana
Citizens’ counsel invitation to Ms. Brooks to mediate her claim, an offer to
9




compromise a disputed claim is no evidence of the validity of the claim.  La. C.E.
art. 408(A).
Therefore, we also conclude that the denial of Ms. Brooks’ motion for
summary judgment was correct as she was not entitled to the relief she sought.
Decree
The judgment rendered on June 9, 2008 in these proceedings is affirmed.
AFFIRMED
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