Roman v. LRASIF Claims Management

81 So. 3d 895, 11 La.App. 5 Cir. 393, 2011 La. App. LEXIS 1509, 2011 WL 6187104
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-CA-393
StatusPublished
Cited by5 cases

This text of 81 So. 3d 895 (Roman v. LRASIF Claims Management) 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
Roman v. LRASIF Claims Management, 81 So. 3d 895, 11 La.App. 5 Cir. 393, 2011 La. App. LEXIS 1509, 2011 WL 6187104 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|2The claimant in this worker’s compensation proceeding, Cristian Roman, appeals the judgment in favor of the defendant/employer, Consolidated Companies, Inc. d/b/a Conco Food Services (CONCO), granting summary judgment and dismissing Mr. Roman’s compensation claim with prejudice. Mr. Roman, who is unrepresented on appeal, specifies several errors, which we pretermit since we find merit to his argument that he did not receive notice of the motion for summary judgment hearing. For the following reasons, we reverse and remand.

Procedural History

On November 29, 2010, CONCO filed a motion for summary judgment seeking dismissal of the compensation claim. CON-CO moved for summary judgment urging that Mr. Roman forfeited his right to further benefits by violating La.R.S. 23:1208 (providing civil and criminal penalties for misrepresentations concerning benefit payments) and Mr. Roman, who had been paid indemnity |sbenefits during the period of his disability, was not entitled to additional benefits. Defense counsel certified that a copy of the motion, memorandum, and supporting documents was served by mail on opposing counsel. On that day, the Office of Worker’s Compensation (OWC) judge set the matter for hearing on January 7, 2011. The order requested service on Mr. Roman through his attorney of record, Brett E. Emmanuel. A few weeks after the OWC judge set the matter for hearing, however, Mr. Emmanuel filed a motion to withdraw as counsel on December 14, 2010. Mr. Emmanuel never filed any opposition to the motion for summary judgment. He represented that Mr. Roman had been “advised concerning the status of his claim” and that he advised Mr. Roman by means of the attached letter that he no longer represented Mr. Roman.

Two days later, the OWC judge signed an ex parte order granting the motion to withdraw. Mr. Emmanuel’s letter to Mr. Roman, dated December 15, 2010, advised [897]*897Mr. Roman that he would no longer represent him. The letter stated that Mr. Emmanuel enclosed a copy of the notice of trial set for January 24, 2011. He further advised Mr. Roman that the motion for summary judgment was set for January 7, 2011. That letter is the only purported personal notice to Mr. Roman contained in the record since the order setting the date only requested service on Mr. Emmanuel. The attorney’s letter referenced “certified return receipt requested 7009 2820 0002 8821 9101” sent to Mr. Roman at 10110 Douglas Oak Circle, Apt. 202, Tampa, Florida 33610. There is no return receipt with that number contained in the record to indicate that Mr. Roman received notice of the hearing through counsel.

The matter came for hearing on January 7, 2011. Mr. Roman was not present. The OWC judge stated:

RNotice of this hearing was sent to Mr. Roman at his last known address. That mail has gone unclaimed. And what we are here to do this morning is hear a motion for summary judgment brought by the employer in this matter, which motion, in fact, is unopposed.

The record contains return receipts for certified mail, none of which indicate the Mr. Roman personally had notice of the hearing.

On the same date that Mr. Emmanuel filed the motion to withdraw, he also filed a petition for intervention. In his motion to withdraw, Mr. Emmanuel provided the court with Mr. Roman’s address: 10110 Douglas Oak Circle, Apt. 202, Tampa, Florida 33610 as well as his telephone number.

On December 22, 2010, the clerk sent copies by certified mail of the withdrawal and intervention to Mr. Roman, neither of which provided notice of the hearing date. That mailing, however, was undeliverable. Apparently the OWC judge was referring to the undeliverable mail advising of the withdrawal and intervention. The record reveals that the mail was sent to the wrong address: 10100 Douglas Oak, rather than 10110 Douglas Oak. The clerk resent these pleadings by certified mail to the correct address on January 5, 2011, two days before the hearing. According to the record, Mr. Roman received that mailing on January 10, 2011, after the hearing date.

The OWC judge rendered judgment on January 12, 2011. The clerk certified that she mailed that day, by certified mail, a copy to Mr. Roman at the 10110 address. According to the record, Mr. Roman received the notice of judgment on January 20, 2011. Mr. Roman filed a timely notice of appeal complaining that he never received notice of the hearing date.

Analysis

Mr. Roman asserts that he personally did not receive notice. He does not dispute that his counsel at the time was served with notice of the hearing.

IsCONCO responds that Mr. Roman received notice first through his former attorney of record when the attorney was served with notice of the hearing, and second when his attorney provided notice of the hearing date by his letter informing Mr. Roman he was withdrawing. There is however, no indication in the record that Mr. Roman ever received notification of the hearing date.

CONCO also relies on La. Admin Code, tit. 40, pt. I, § 5547 concerning withdrawal of counsel, urging that counsel complied with the procedure for withdrawal:

A. When an attorney seeks to obtain an ex parte order to withdraw as counsel for a party, he shall include in his application the last known address of the claimant along with a statement that he has given written notice to the party he [898]*898was previously representing that he is no longer of counsel to him and of the status of the case on the court’s docket. The attorney shall certify to the court that he has given notice to all counsel of record at the same time and in the same manner as notification to the court. A copy of such written notice and certification shall be attached to the application for the ex parte order for withdrawal. An attorney who has been permitted by ex parte order to withdraw shall give notice of same to all parties.
B. Counsel of record who withdraws or is discharged prior to submission of the case, and desires to assert a claim for fees, must attach a statement to that effect and set forth the period of time during which his client was under his or her representation. Counsel shall also file a lien form, to be developed by the Director, identifying any lien he may have on the pending claim for payment of attorney fees.

Mr. Roman, however, does not challenge the OWC judge’s granting the motion to withdraw. Further, a statement by counsel that he has given written notice to the party of the status of the case is inadequate due process notice. That statement does not indicate that Mr. Roman received notice.

At the time the motion for summary judgment was filed in this matter, Mr. Emmanuel was counsel of record for Mr. Roman and could have been served on his behalf with any pleading subsequent to the filing of the original petition in ^accordance with La.C.C.P. arts. 1312-1314. However, shortly thereafter, counsel withdrew.

We find that in this circumstance counsel’s withdrawal before the hearing where the unrepresented litigant’s claim was dismissed without any indication in the record that the claimant received notice from the OWC judge, implicates due process cerns.

A judgment granting summary judgment is a final judgment. La.C.C.P. art. 968. “It is a basic principle of our legal system that a final judgment cannot be rendered against a party who has not been provided with proper notice.” Chaney v. Coastal Cargo, Inc.,

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81 So. 3d 895, 11 La.App. 5 Cir. 393, 2011 La. App. LEXIS 1509, 2011 WL 6187104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-v-lrasif-claims-management-lactapp-2011.