Thibodeaux v. Conoco Phillips Co.

952 So. 2d 912, 6 La.App. 3 Cir. 1282, 2007 La. App. LEXIS 413, 2007 WL 675816
CourtLouisiana Court of Appeal
DecidedMarch 7, 2007
Docket06-1282
StatusPublished
Cited by4 cases

This text of 952 So. 2d 912 (Thibodeaux v. Conoco Phillips Co.) 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
Thibodeaux v. Conoco Phillips Co., 952 So. 2d 912, 6 La.App. 3 Cir. 1282, 2007 La. App. LEXIS 413, 2007 WL 675816 (La. Ct. App. 2007).

Opinion

952 So.2d 912 (2007)

Juanita THIBODEAUX, et al.
v.
CONOCO PHILLIPS CO., et al.

No. 06-1282.

Court of Appeal of Louisiana, Third Circuit.

March 7, 2007.

*914 Randall A. Smith, Smith & Fawer, L.L.C., New Orleans, Louisiana, for Appellants, Douglas M. Schmidt, Peter Borstell, Law Offices of Douglas M. Schmidt, APLC, Douglas M. Schmidt, APLC.

Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, Louisiana, for Appellee, Patrick A. Juneau, Jr., Special Master.

Richard F. Zimmerman, Jr., Jennifer A. Hataway, Kantrow, Spaht, Weaver, & Blitzer, Baton Rouge, Louisiana, for Appellees, Plaintiffs' Steering Committee, Robert H. Schmolke, Calvin C. Fayard, Jr., Drew A. Ranier.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.

SULLIVAN, Judge.

This is a dispute over the allocation of attorney fees in a class action. Appellants appeal the trial court's refusal to approve the payment of attorney fees and expenses according to an agreement reached among attorneys representing claimants in the class and the issuance of a preliminary injunction enjoining Appellants from proceeding in a suit in another court to enforce the fee agreement. Appellees filed a motion to dismiss this appeal, arguing Appellants' waived their right to appeal by acquiescing in the trial court's order awarding attorney fees.

Facts

The parties to this appeal are attorneys who represented plaintiffs in a class action suit which was settled. In conjunction with the settlement, a fund for the payment of attorney fees and expenses was established. During the course of the litigation, a Plaintiffs' Steering Committee (PSC) was appointed by the trial court. The PSC and some attorneys of members of the class entered into agreements among themselves for the allocation of attorney fees and expenses. Pursuant to that agreement, Appellants were to receive $4 million in fees. On September 21, 2005, the trial court held a hearing on the issue of attorney fees. The trial court refused to approve the fee agreement, finding that it was unreasonable, against public policy, and unethical because it violated the Rules of Professional Conduct.[1] The trial court then awarded fees as recommended by the court-appointed Special Master which it deemed reasonable and equitable. It awarded Appellants $2,490,966.67, not the $4 million provided in the fee agreement.

Appellant Doug Schmidt attended the hearing. He did not object to the proceeding and accepted the fees awarded to Appellants by the trial court. Mr. Schmidt signed a Receipt, Release, and Unconditional Acquiescence in Judgment (Release), which stated in part:

2. . . . (b) Releasor has read and reviewed the Attorneys' Fees Order and Judgment and is thus fully aware of the Court's award of attorneys' fees and/or costs to Releasor and/or the Firm, as contained therein; (c) Releasor and the Firm are bound by all of the terms, conditions, and obligations contained in the Attorneys' Fees Order and Judgment; and (d) Releasor is satisfied that *915 the Court's award of attorneys' fees and/or costs to Releasor and/or the Firm as contained in the Attorneys' Fees Order and Judgment is fair and adequate.
3. Without limiting the foregoing, in consideration of the Court's award of attorneys' fees and/or costs to Releasor and/or the Firm as contained in the Attorneys' Fees Order and Judgment, Releasor and the Firm hereby voluntarily and unconditionally: (a) acquiesce in the Attorneys' Fees Order and Judgment and the Court's award of attorneys' fees and/or costs to Releasor and/or the Firm, as contained therein, (b) waive any right to appeal, petition, bring a writ or law suit or request court review or extraordinary relief from or with respect to the Attorneys' Fees Order and Judgment, (c) release and forever discharge any and all claims for any amounts whatsoever, including, but not limited to, claims for attorneys' fees and costs, whether common benefit or otherwise, arising out of or related to any of the Releases, whether part of the Class Action and/or the Pending Actions or in any way related to the Class Action and /or the Pending Actions, that Releasor and/or the Firm have, or may have had, against any one or more of the Released Parties, the PSC, . . .

(Emphasis added.)

On November 28, 2005, Appellants filed a lawsuit in the Civil District Court of New Orleans, in which they asserted claims of breach of contract and unfair trade practices against members of the PSC. The PSC sought a preliminary injunction to enjoin Appellants from proceeding with that litigation. After a hearing, the trial court granted the injunction based on the Release. On November 30, 2005, Appellants filed this appeal.

Motion to Dismiss Appeal

Pursuant to La.Code Civ.P. art. 2085, "[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him." This court addressed the dismissal of an appeal where an appellant acquiesced in a settlement of his claim, stating: "The acquiescence that prohibits an appeal, or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If the thing commanded to be done or given is done or given, there has been acquiescence in the judgment." West v. Bruner Health Group, Inc., 03-152, p. 8 (La.App. 3 Cir. 10/29/03), 866 So.2d 260, 267, writs denied, 04-913, 04-935 (La.6/18/04), 876 So.2d 805, 806 (quoting Times Picayune Publ'g Corp. v. New Orleans Aviation Bd., 99-237, p. 5 (La.App. 5 Cir. 8/31/99), 742 So.2d 979, 982, writ denied, 99-2838 (La.12/10/99), 751 So.2d 257).

Appellants sought attorney fees and were awarded attorney fees by the trial court which they accepted and in conjunction therewith signed the Release. Their acquiescence to their fee award prohibits this appeal. However, our discussion cannot end here because Appellants attack the validity of the trial court's judgments.

Consent

Appellants claim they acted under duress which vitiates their consent to the acceptance of the fees and the execution of the Release. Louisiana Civil Code Article 1959 provides:

Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party's person, property, or reputation.
Age, health, disposition, and other personal circumstances of a party must *916 be taken into account in determining reasonableness of the fear.

Appellants lived and had their offices in the New Orleans area. They urge that they were so negatively impacted by Hurricane Katrina they were compelled to accept the trial court's fee award and execute the Release. Comment (b) to Article 1959 explains that the article contemplates two kinds of duress. One is physical duress; the other occurs where "a person makes an improper threat that induces a party who has no reasonable alternative to manifest his assent." La.Civ.Code art. 1959, Comment (b).

Some Louisiana courts have held that economic stress does not constitute legal duress as contemplated by Article 1959. See Sid-Mar's Rest. & Lounge, Inc. v. Gardner, 02-1109 (La.App. 5 Cir. 3/25/03), 844 So.2d 178; Aubert v. Entergy Corp., 00-30 (La.App. 5 Cir. 5/30/00), 762 So.2d 288; Adams v. Adams,

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Related

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183 So. 3d 684 (Louisiana Court of Appeal, 2015)
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Thibodeaux v. Conoco Phillips Co.
952 So. 2d 918 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
952 So. 2d 912, 6 La.App. 3 Cir. 1282, 2007 La. App. LEXIS 413, 2007 WL 675816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-conoco-phillips-co-lactapp-2007.