Wade v. Marine Services of Acadiana LLC, No. 2008 CA 2144 (La. App. 8/6/2009)
| Decision Date | 06 August 2009 |
| Docket Number | No. 2008 CA 2144,2008 CA 2144 |
| Parties | ALVIN J. WADE v. MARINE SERVICES OF ACADIANA LLC AND CAL DIVE INTERNATIONAL INC |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE 16TH JUDICIAL DISTRICT COURT PARISH OF ST MARY LOUISIANA, DOCKET NO 116 370 DIVISION G, HONORABLE CHARLES L PORTER JUDGE PRESIDING.
ALVIN J WADE, Plaintiff Appellant In Proper Person
TODD G CRAWFORD, Balch Bingham LLP Attorney for Defendants Appellees Marine Services of Acadiana LLC and Cal Dive International Inc
DENISE A VINET, Intervenor In Proper Person.
Before PARRO McCLENDON and WELCH, JJ.
Alvin J. Wade appeals a judgment denying his motion to declare a power of attorney invalid; granting a motion to enforce settlement filed by Marine Services of Acadiana, LLC (Marine Services) and Cal-Dive International, Inc. (Cal-Dive); ordering him to execute a receipt, release, indemnity, and hold harmless agreement; and ordering Marine Services to place settlement funds of $25,000 into the registry of the court. Based on the record before us, we affirm the judgment.
On July 25, 2006, while employed by Marine Services as a kitchen helper on a barge owned or operated by Cal-Dive, Wade allegedly slipped on ice in the freezer and fell, breaking his nose and straining his neck. In December 2006, he filed suit against Marine Services and Cal-Dive, seeking damages under the Jones Act and general maritime law for the injuries he had sustained. The defendants filed a general denial, and eventually, the case was scheduled for mediation on September 26, 2007. The defendants also filed a motion for Wade's deposition, to take place the same day in the event the mediation did not result in a settlement of the lawsuit.
Wade did not appear at the mediation, because he was incarcerated in the Ouachita Parish Correctional Center in Monroe, Louisiana. However, his attorney, Denise A. Vinet, appeared and presented a power of attorney dated August 13, 2007, which was signed by Wade and authorized his brother, Cecil Wade, to act on his behalf in negotiating and settling any and all claims he had against the defendants. Cecil took part in several hours of negotiations, after which the parties agreed to settle the lawsuit. A "Mediation Settlement Agreement" was executed by the parties, with Cecil signing on behalf of his brother. The settlement called for the defendants to pay Wade $25,000 and to set aside sufficient funds for nasal reconstruction surgery, on the condition that the surgery be completed within six months. It further stated that if Wade was "unable or unwilling to have the nose surgery proposed by Dr. Danna within 6 months, the funds revert to [Marine Services]."
The defendants sent the settlement funds and a receipt and release document to Vinet; she forwarded the document to Wade to be signed. However, he refused to execute it. Vinet then filed a motion to withdraw as his attorney and a petition of intervention for her attorney fees and expenses. Marine Services and Cal-Dive filed a motion to enforce the settlement agreement, which Wade opposed, and Wade filed a motion to declare the power of attorney invalid. The motions were set for hearing, and Wade filed motions to have several persons, including his brother, subpoenaed as witnesses.
At the hearing on February 6, 2008, Wade appeared, representing himself. The court denied Wade's subpoena requests, because the witnesses resided in other states and were beyond the court's subpoena power.1 Wade then asked for a continuance, so he could get his key witness and an attorney to represent him. Although the court did not formally deny the request for a continuance, the hearing was commenced. The defendants submitted into evidence the August 13, 2007 power of attorney, the September 26, 2007 Mediation Settlement Agreement, the notice of Wade's deposition, the notice of mediation, the letter to Vinet with settlement funds and the receipt and release document, Vinet's letter advising of her withdrawal and Wade's revocation of the power of attorney, the "Revocation of Power of Attorney" executed by Wade on November 21, 2007, and Wade's June 6, 2007 letter to Vinet in which he stated he was giving power of attorney to his brother, Cecil, to handle the litigation for him. Wade was called as a witness and identified his signature on the power of attorney and the revocation of the power of attorney. Vinet identified other documents and testified concerning the circumstances surrounding the power of attorney, the mediation, Wade's refusal to execute the receipt and release document, and her withdrawal as his counsel.
Wade's attempt to represent himself was totally ineffectual; he wanted to read some statements and questions that had been prepared for him before the hearing, which he referred to as his "guidelines." Whenever he had the opportunity to speak, his incoherence and unfamiliarity with the proceedings rendered his efforts futile. Eventually, the court orally granted the defendants' motion to enforce the settlement agreement.2 On March 4, 2008, Wade filed a "Motion and Order to Hold in Abeyance," seeking a new hearing on the motions; this was denied by the court.3 A judgment denying his motion to invalidate the power of attorney, granting the motion to enforce the settlement, and setting time limits for the execution of documents and payment of the settlement funds was signed March 7, 2008.4
In this appeal. Wade contends the trial court erred in enforcing the settlement for several reasons. First, he claims the power of attorney was not valid, because (1) it was not executed by him or his brother in the presence of the notary, Vinet; (2) it was not notarized in Ouachita Parish, as it stated; and (3) Vinet did not affix her seal or bar roll number to the document. Second, he claims that the mediation settlement agreement was executed through fraud, duress, and error, because Cecil was misled and coerced into signing it by Vinet and the defendants. Third, he alleges that the agreement contained an impossible condition-that he obtain the surgery on his nose from Dr. Danna within six months-which he could not fulfill, because he was incarcerated and would not be released in time to have that surgery done. Finally, he argues that the court abused its discretion in waiting until the morning of the hearing to advise him that his subpoenas would not be issued, in denying his request for a continuance, and in not allowing him to present his case.
Wade argues that the power of attorney is not valid, because it misstates the circumstances under which it was executed and was not properly signed by the notary. Vinet identified a letter in which Wade told her he wanted his brother, Cecil, to handle the litigation for him, because it was difficult for him to do so from prison. She testified that she prepared the power of attorney form and sent it to Wade, who signed it in prison. It was then sent to Cecil, who signed it in Florida, and she signed as notary in her office in Baton Rouge. The document does not include her notary seal or her bar roll number. Wade contends that the power of attorney is not valid, because the form incorrectly states that it was signed in Ouachita Parish in the presence of the notary and two witnesses. He also claims Vinet was required to affix her seal and bar roll or notary number in order for the document to be valid.
The power of attorney at issue, being a contract of mandate, is governed by the provisions of the Louisiana Civil Code, articles 2989-3032. In re Succession of Aucoin, 99-2171 (La. App. 1st Cir. 11/8/00), 771 So.2d 286, 288. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. LSA-C.C. art. 2989. The contract of mandate is not required to be in any particular form, unless the law prescribes a certain form for an act, in which case, a mandate authorizing the act must be in that form. See LSA-C.C. art. 2993. Express authority is required in order to enter into a compromise or settlement. See LSA-C.C. art. 2997(5).
Under these provisions, it is clear that a power of attorney does not have to be in any particular form in order to be effective, unless it grants authority to do an act for which a particular form is required. No particular form is required for a written settlement agreement. See LSA-C.C. art. 3072. In this case, the power of attorney expressly grants Cecil authority to "compromise, settle and adjust, with each and every person or persons, all actions, accounts, dues and demands, subsisting or to subsist between him [Wade] and them ... in such manner as his said attorney-in-fact shall think proper." Therefore, the requirement of Article 2997(5) was met. Wade admitted he signed the document and intended to give Cecil full authority to act for him. Therefore, we find that the power of attorney is valid, and the trial court did not err in denying Wade's motion to invalidate it.
Wade claims that Cecil was misled and coerced by Vinet and the defendants into signing the mediation settlement agreement. Therefore, he contends it is invalid, because consent was obtained through fraud, duress, and error. He also contends that the mediation settlement agreement contained an impossible condition-that he obtain the surgery on his nose from Dr. Danna within six months-which he could not fulfill, because he was incarcerated and would not be released in time to have that surgery done.
A compromise (or settlement) is a contract in which the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. See LSA-C.C. art. 3071. It must be in writing or recited in open court. See LSA-C.C. art. 3072. A settlement...
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