Neely v. Hollywood Marine, Inc.

• Decision Date: 30 December 1987
• Docket Number: No. CA,CA
• Citation: 518 So.2d 1151
• Parties: Randy NEELY v. HOLLYWOOD MARINE, INC. and Tenneco Oil Company. 7523.
• Court: Court of Appeal of Louisiana — District of US

Page 1151

518 So.2d 1151

Randy NEELY v. HOLLYWOOD MARINE, INC. and Tenneco Oil Company.

No. CA 7523.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 30, 1987.

Rehearing Denied Feb. 11, 1988.

Writ Granted April 4, 1988.

Lawrence D. Wiedemann, W. Lloyd Bowers, Wiedemann & Fransen, New Orleans, for appellant.

Robert S. Reich, Rufus C. Harris, III, L.R. DeBuys, IV, Terriberry, Carroll & Yancey, New Orleans, for appellees.

Before KLEES, CIACCIO and ARMSTRONG, JJ.

CIACCIO, Judge.

This is an appeal from a judgment of the district court which granted summary judgment and dismissed the appellant's petition of intervention. We affirm.

On May 13, 1985, intervenor, the law firm of Wiedemann & Fransen entered into a contract of representation with the plaintiff Randy Neely. On June 13, 1985 the intervenor filed a petition seeking damages on behalf of the plaintiff for serious injuries he sustained as a deckhand aboard the M/V Creole Janice. On November 21, 1985 plaintiff discharged his attorneys of record. The following day, November 22, 1985, Neely entered into a release of liability with defendants Hollywood Marine, Inc. and Tenneco Oil Company. In consideration of $50,000, plaintiff discharged the defendants from any and all liability arising from the maritime accident. Defendants also agreed to pay all medical expenses that might be incurred in connection with two surgical procedures contemplated by plaintiff, provided the surgery took place within 1 year from the date of the release.

On November 25, 1985, Wiedemann & Fransen filed a petition of intervention seeking reimbursement of medical expenses and costs, as well as an enforcement of its contingent fee, or alternatively, legal fees of $200,000 on the basis of quantum meruit. They annexed a copy of the contingent fee contract which had been executed by the plaintiff. On December 5, 1985 defendants answered the intervention with a general denial.

On December 12, 1985 plaintiff, Randy Neely, and defendants Hollywood Marine, Inc. and Tenneco Oil Company filed a joint motion to dismiss plaintiff's suit with prejudice, based upon the parties' contract of compromise and release. On that date, the district court rendered an order of dismissal and final judgment, which dismissed, with prejudice, the plaintiff's suit against these defendants.

On February 26, 1986 defendants filed a motion for summary judgment and memorandum in support thereof as well as a statement of uncontested facts which alleged the following:

(1) Plaintiff, Randy Neely discharged his attorneys, Wiedemann & Fransen on November 21, 1985.

(2) On November 22, 1985 plaintiff granted defendants, Hollywood Marine, Inc. and Tenneco Oil Company a full and complete release from any and all claims arising from plaintiff's alleged accident.

(3) On November 25, 1985 attorneys Wiedemann & Fransen filed their contingency fee contract with the court.

The intervenors amended their petition of intervention on March 5, 1986 to allege the nullity of plaintiff's release and nullity of the court's order dismissing plaintiff's suit. They also filed a memorandum in opposition to the motion for summary judgment, but they did not dispute the defendant's statement of uncontested facts.

On October 28, 1986 the trial court granted the defendant's motion for summary judgment and dismissed the petition of intervention. The court found that the "intervenor's contingency fee contract was not timely filed" and "the compromise agreement ... was satisfactory and enforceable...." The intervenor has filed a devolutive appeal of this judgment.

The sole issue presented on appeal is whether the trial court erred in granting the defendant's motion for summary judgment dismissing the petition for intervention.

On appeal the intervenor alleges that the mental capacity of the plaintiff precluded his valid confection of the receipt and release. Additionally, they urge that since they filed their intervention and contract of employment on November 25, 1985 and the compromise agreement and motion to dismiss were not filed until December 12, 1985 (with notice thereof received March 4, 1986) that the disposition of the suit occurred after their intervention and was, hence, void.

The Louisiana Code of Civil Procedure provides for summary judgment:

Art. 966. Motion for summary judgment; procedure

A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.

B. The judgment sought shall be rendered forthwith 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.

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We first address the intervenor's contention that the release and receipt are null and void.

The intervenor has admitted that on November 21, 1985 plaintiff discharged them and hence they do not represent the plaintiff.

In Scott v. Kemper, 377 So.2d 66 at 70 (La., 1979), the Louisiana Supreme Court discussed the right of an attorney whose client desires to (or has) discharge(d) him:

Thus an attorney can neither force his continued representation of a client who wishes to discharge...