Pitre v. Bessette Development Corp.

126 So. 3d 869, 13 La.App. 3 Cir. 588, 2013 WL 5927859, 2013 La. App. LEXIS 2302
CourtLouisiana Court of Appeal
DecidedNovember 6, 2013
DocketNo. 13-588
StatusPublished
Cited by1 cases

This text of 126 So. 3d 869 (Pitre v. Bessette Development Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pitre v. Bessette Development Corp., 126 So. 3d 869, 13 La.App. 3 Cir. 588, 2013 WL 5927859, 2013 La. App. LEXIS 2302 (La. Ct. App. 2013).

Opinion

KEATY, Judge.

[; Attorney appeals a judgment rendered by the workers’ compensation judge (WCJ) reducing the amount of attorney fees that he could collect for his legal representation of plaintiff, Troy Pitre, from $15,000.00 to $8,316.60. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Pitre was injured in a work-place accident on November 5, 2007, while employed by Bessette Development Corporation. Two days later, Pitre hired attorney Scott Pias, appellant herein, to represent him with respect to his injuries arising out of that accident. In conjunction with that representation, Pitre signed a contract providing that he would pay “the statutory allowed amount of attorney fees, not to exceed 20 % of all recovery,” including any negotiated settlement.

On November 12, 2012, mediation took place at Pias’ office, and Pitre agreed to settle his claim against Bessette for a lump sum of $35,000.00 plus $6,583.00 in seed money to start a medical set-aside (MSA) annuity that would provide Pitre with $2,160.00 per year until his death to fund his future medical bills. The present value of the MSA at that time was $70,524.35. On December 10, 2012, the parties presented a Joint Petition for Approval of Workers’ Compensation Settlement (Joint Petition) to the WCJ. Included therein was Pias’ request for “approval of attorney’s fees in the statutory amount.” A Disbursement Sheet was attached to the Joint Petition that listed Pias’ calculation of the attorney fees owed to him as $21,104.87 but noted that he and Pitre had agreed to a reduced fee of $15,000.00. The Disbursement Sheet, which had been signed by Pitre, included language stating that he agreed that $15,000.00 was a reasonable fee and in accordance with the contract for representation that he had entered into with Pias.

|2On December 10, 2012, the WCJ signed the Motion and Order for Approval of Attorney Fee but amended it to specify that attorney fees were awarded in the amount of $8,316.60 and to exclude language stating that attorney fees were awarded at the “statutory rate of twenty percent (20%)” “as agreed upon by the parties, and in accordance with plaintiffs Affidavit attached hereto.” Thereafter, Pias filed a Motion and Order for Hearing Regarding Reduction in Attorney Fees. After a contradictory hearing, the WCJ signed a judgment stating that Pias was awarded attorney fees in the amount of $8,316.60 for his representation of Pitre. The judgment provided that said amount “represents twenty percent (20%) of the lump sum indemnity ($35,000), plus twenty percent (20%) of the seed money to fund the medical set-aside (MSA) account ($6,583).” The judgment further provided that “the attorney fees awarded in this case shall not include twenty percent (20%) of the present value of the medical set-aside (MSA) annuity for future medicals.”

[871]*871Pias timely appealed and now assigns the following errors:

1. The Court erred in ruling that it had subject matter jurisdiction to engage in what amounted to a disciplinary proceeding against an attorney, or otherwise determine whether an attorney is to receive a fee.
2. The Court committed legal error in reducing the fee approved by the client as being fair and reasonable without any determination of fairness. The fee was reasonable, especially without any objection of Mr. Pitre.
3. The Court committed legal error and violated Article 5, § 5(b) of the Louisiana Constitution, which provides that the Louisiana Supreme Court has exclusive original jurisdiction over disciplinary proceedings against a member of the bar.
4. The Court committed legal error in not allowing a fee to be taken on the present value of future medical expenses obtained in settlement or any indemnity collected prior to settlement.

| sIn addition to his appellant brief, Pias filed a Plea of Unconstitutionality of La. R.S. 23:11411 and 23:11432 in this court. Bessette’s attorney of record was notified of this appeal but has not filed a brief. This court notified the Attorney General of the State of Louisiana (the AG) of Pias’ claims of unconstitutionality, and his office also filed a brief in this matter.

DISCUSSION

At the January 30, 2013 hearing, the WCJ asked Pias how much money his client received in the settlement with Bes-sette. Pias responded that Pitre received the net amount of “$26,410.” Pias explained that the settlement was for $30,000.00 in cash and $6,583.00 for seed money to start an MSA. The WCJ then stated, “I think you are entitled to 20 percent of the amount of money the claimant recovered in the settlement or $8,316.60.”3 The WCJ then specified, “I am not at this time giving you a fee on the present day value of the annuity.”

Constitutionality

Pias asserts that La.R.S. 23:1141 is unconstitutional because it grants authority to an administrative law judge to review and determine attorney fee awards. He claims that La.R.S. 23:1143 is an unconstitutional legislative infringement of the authority of the Louisiana Supreme Court to govern attorney fees and to impose disciplinary action by creating a mechanism for an attorney to be divested of all or part of his fee.

|4The AG counters that the constitutionality of La.R.S. 23:1141 and 23:1143 is not properly before this court because the issue was not raised in the trial court and because Pias’ claims of unconstitutionality have not been specifically pled nor have the grounds for his claims been particularized. In addition, the AG submits that this court should decline to exercise its discretionary power of supervisory ju[872]*872risdiction in this matter because Pias’ constitutionality argument could have been asserted in the trial court.

In Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (footnote omitted), the Louisiana Supreme Court wrote, “the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.” Pias correctly points out that the supreme court has recognized that the aforementioned general rule does admit some exceptions. See Unwired Telecom Corp. v. Parish of Calcasieu, 03-732 (La.1/19/05), 903 So.2d 392; Vallo, 646 So.2d 859.

After review of the record in this matter, we can find no justification for Pias’ having failed to assert his claims of unconstitutionality in the trial court. The WCJ amended the order for approval of attorney fee to delete the reference to the “statutory rate” on December 10, 2012. Pias was put on notice that La.R.S. 23:1141 and 23:1143, the statutes regulating attorney fees in workers’ compensation matters, were relevant to the determination of the amount of attorney fees that he could recover in this matter. Thus, any constitutional challenge to those statutes should have been made at that time so that the parties could “be afforded the opportunity to brief and argue the issue” and so “[t]he record of the proceeding could then be reviewed to determine whether the party attacking the statute[s] sustained his or her ^burden of proof, and whether the trial court attempted to construe the statute[s] so as to preserve [their] constitutionality.” Vallo, 646 So.2d at 865.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. C & S Wholesale Services, Inc.
205 So. 3d 958 (Louisiana Court of Appeal, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
126 So. 3d 869, 13 La.App. 3 Cir. 588, 2013 WL 5927859, 2013 La. App. LEXIS 2302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitre-v-bessette-development-corp-lactapp-2013.