Opinion
No. 93-CA-1162.
February 11, 1994.
Kathy L. Torregano, City Atty., Bruce E. Naccari, Acting First Asst. City Atty., Milton Osborne, Jr., Deputy City Atty., New Orleans, for defendant-appellant.
Magdalen Blessey Bickford, Robert H. Urann, Robein, Urann Lurye, Metairie, for plaintiff-appellee.
Before PLOTKIN, WALTZER and LANDRIEU, JJ.
Defendant City of New Orleans (City) appeals a trial court judgment ordering it to execute compromise documents arising out of worker's compensable injuries to claimant Lloyd F. Price. We affirm.
Facts
Price, who is a firefighter employed by the City, contracted a blood disorder in the course and scope of his employment. On October 19, 1993, the City, acting through an assistant city attorney, wrote Price's attorney, on City of New Orleans stationery. The letter stated as follows:
As per our conversation of October 19, 1992, this letter is to confirm that the City of New Orleans accepts Mr. Price's diagnosed condition of Hepatitis "C" as a compensable work related injury under 23:1031.1.
It is my understanding that Mr. Price missed miss [sic] no time from work and is making this claim for medical benefits only. As such please provide copies of all related medical and bills in order that we may process this matter as expeditiously as possible.
Should you have any questions regarding this matter please do not hesitate to contact me.
A copy of that letter, in which the City both admits that the claimant's "diagnosed condition of Hepatitis "C" is a work related injury and requests copies of "all related medical and bills" so that they can be processed "as expeditiously as possible," was faxed to the administrative hearing officer assigned the case. Several copies of that letter, all of which contain a notation indicating that the letter was faxed to the hearing officer, appear in the record, and copy of the letter was in fact admitted during the hearing on the matter. See Transcript at page 7. Further, the City does not claim that the letter was never faxed to the hearing officer.
The plaintiff's attorney then submitted the proposed agreement to the hearing officer, who instructed the parties to confect a compromise agreement by November 2, 1992. Plaintiff's counsel prepared the documents and submitted them to the City, which failed to execute them. The hearing officer extended the date to November 12, 1992. However, the City still failed to respond. Price then filed a rule to show cause why the City should not be compelled to execute the compromise agreement. Following a scheduled hearing on the matter, for which no representative of the City appeared, the hearing officer issued a judgment compelling the City to execute the appropriate settlement documents based on the October 19, 1993 letter.
Confession of judgment
Price claims that the appeal in the instant case should be dismissed under the provisions of La.C.C.P. art. 2085 because the October 19, 1992 letter from the deputy city attorney to Price's attorney constituted a confession of judgment. That article provides as follows:
An 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. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.
The above provision was applied to a worker's compensation case by the Louisiana Supreme Court in Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La. 1979). In that case, an appeal by the employer in a worker's compensation case was dismissed because the court found that the employer had orally consented to the judgment in open court. The court held that no particular form is required for a valid judicial confession of judgment, stating as follows:
It is only necessary that the confession occur in the proceedings in the trial court and that it amount to an admission by a party to the validity of his opponent's claim in such a way as to leave no issue to be tried.
We find that the October 19, 1992 letter sent by the deputy city attorney to Price's attorney in the instant case was sufficient under the principles established by the Martin case to constitute a judicial confession. The statements in the letter were sufficient to "amount to an admission by a party to the validity of his opponent's claim in such a way as to leave no issue to be tried" since the city admitted not only that Price's injury was worker's compensable, but also that the city was liable for Price's medical benefits. The deputy city attorney's action in faxing the letter to the hearing officer was sufficient to meet the requirement that the confession "occur in the proceedings in the trial court." Under the circumstances, the hearing officer's judgment compelling the city to execute the settlement documents was appropriate.
In support of its appeal in this case, the city's primary argument centers around its contention that the letter in question is insufficient to constitute a valid compromise agreement under the special provision relating to compromise of worker's compensation claims found in LSA-R.S. 23:1272. That provision requires that the parties to a settlement agreement in a worker's compensation claim submit a petition "signed by all parties and verified by the employee or his dependent" to the director, who "shall determine whether the employee or his dependent understand the terms and conditions of the proposed settlement"; the statute also allows the director to hold a hearing in order to make such a determination. The city claims that the trial court judgment is wrong because no such signed, verified petition was ever submitted to the director.
We find no merit in this argument. Although a signed, verified petition is indeed required in order to constitute a valid compromise agreement, the trial judge in this case did not find that a valid compromise agreement existed; he simply ordered the defendant to execute the proper settlement documents so that a valid compromise, to which the defendant had judicially confessed by way of the October 19, 1992 letter, could be perfected. Thus, the trial court judgment is not in violation of the special requirements for valid compromise agreements in worker's compensation cases.
Notice
The City further argues that the trial court judgment should be reversed because the record contains no evidence that the City received valid notice of the hearing on the motion to compel. This argument must fail for two reasons. First, the claimant's attorney submitted a copy of a letter in which she personally informed the City Attorney of the scheduled hearing. Again, the City does not claim that the City Attorney did not receive this letter, but instead argues simply that nothing in the record shows that the City received notice. However, it is well-settled that the mailing of notice to a party's attorney of record is sufficient to meet the due process requirements. Coleman E. Adler Sons, Inc. v. Waggoner, 538 So.2d 1131 (La.App. 5th Cir. 1989).
Second, a claim that a judgment was entered in the absence of proper notice is essentially a claim that the judgment is a relative nullity under the provisions of La.C.C.P. art. 2004 because of fraud or ill practice. Such judgments may only be attacked through a motion for new trial, Hicks v. Schouest, 381 So.2d 977 (La.App. 4th Cir. 1980), or through the filing of a petition for nullity. See Coleman, 538 So.2d 1131; Viso v. Favie, 502 So.2d 1130 (La.App. 4th Cir.), writ denied 503 So.2d 465 (La. 1987). The defendant in this case chose to attack the judgment through the appeals process. The dissent would have us consider those arguments despite the fact that no motion for new trial or petition for nullity has been filed, saying that La.C.C.P. arts. 2005 and 2164 give this court the authority to consider any error of record. However, the codal articles on nullity very clearly delineate the types of nullities which may be attacked collaterally on appeal in La.C.C.P. art. 2002. Judgments obtained in the absence of compliance with procedural due process requirements are not included. Such judgments have always been considered by Louisiana courts as relative nullities. See Coleman 538 So.2d at 1133. Thus, we are foreclosed by the Code of Civil Procedure from even considering this issue.
Conclusion
Accordingly, the City's appeal of the trial court judgment compelling it to execute settlement documents is dismissed.
APPEAL DISMISSED .
LANDRIEU, J., dissents with reasons.
After a claim was filed with the Office of Worker's Compensation by claimant, Lloyd F. Price, and subsequent to an answer filed by Rosenbush Claims Service on behalf of the City of New Orleans denying claimant's allegations, the following letter, on stationary of the City of New Orleans Law Department, was sent to Claimant's counsel by Richard C. Bates, an Assistant City Attorney:
"Dear Ms. Blessy:
As per our conversation of October 19, 1992, this letter is to confirm that the City of New Orleans accepts Mr. Price's diagnosed condition of Hepatitis "C" as a compensable work related injury under 23:1031.1.
It is my understanding that Mr. Price missed no time from work and is making this claim for medical benefits only. As such, please provide copies of all related medical and bills in order that we may process this matter as expeditiously as possible.
Should you have any questions regarding this matter please do not hesitate to contact me.
Sincerely,
Richard C. Bates
cc: Judge Edgar Corey"
The letter indicates that a copy was intended for the Administrative Hearing Officer, but that copy does not appear in the record nor is it noted in the Minutes of the Court.
On the next day, October 20, 1992, probably at the request of claimant's counsel, the Administrative Hearing Officer issued an order to claimant's counsel and Milton Osborne, City Attorney, continuing the case until November 2, 1992 "for the submission of a joint petition for settlement". Claimant's counsel, after not receiving the proposed compromise documents, prepared them herself and sent them to Richard C. Bates for execution by the City.
After being told on November 13, 1992 that the city would not execute the compromise documents, claimant's counsel on November 16, 1992 filed a Rule to Show Cause Why City Attorney Should Not Be Compelled To Execute Compromise Documents. The rule was fixed by order of the Administrative Hearing Officer to be heard on December 4, 1992. (emphasis added)
There is no indication in the record that any representative of the City was served with a copy of this order. However, claimant's counsel attaches to her brief a copy of a letter, dated November 23, 1992, addressed to Richard C. Bates, advising that the Rule to Show Cause was set to be heard on December 4, 1992 at 8:45 a.m. That letter is not in the record.
On December 4, 1992, the Rule was heard by the Administrative Hearing Officer. The City of New Orleans was not represented. No evidence was introduced and no witnesses testified. On December 7, 1992, the following judgment was signed:
"JUDGMENT
This cause came for hearing on December 4, 1992, on Rule to Show Cause Why City Attorney Should Not Be Compelled To Execute Compromise Documents filed by plaintiff, Lloyd F. Price, Jr.
PRESENT: Magdalen C. Blessey, counsel for plaintiff, Lloyd C. (sic) Price[.]
The Court, having considered the pleadings, the memoranda and the argument of counsel, does hereby:
IT IS ORDERED, ADJUDGED AND DECREED that the City of New Orleans be compelled to execute the Compromise as defined in the City Attorney's letter of October 19, 1992, specifically to pay all medical expenses and bills arising from plaintiff's occupational disease, Hepatitis "C", incurred in the course and scope of his employment.
New Orleans, Louisiana, this 7th day of December, 1992.
EDGAR K. COREY JUDGE"
While Ms. Blessey, throughout these proceedings, has conducted herself with exceptional professionalism, the procedure recommended by the Administrative Hearing Officer was ill advised and his judgment clearly wrong.
Pretermitting the strict requirements of La.Rev.Stat.Ann. § 23:1272 (West 1992) which controls the compromise of Worker's Compensation claims, there was no binding agreement between the parties. La.Civ. Code Ann. art. 3071 (West Supp. 1993) defines a compromise and it is clear none existed here. Claimant's counsel, on advice of the Administrative Hearing Officer, filed a Rule To Show Cause Why City Attorney Should Not Be Compelled To Execute Compromise Documents. The Administrative Hearing Officer rendered judgment compelling the City of New Orleans . . . "to execute the compromise as defined in the City Attorney's letter of October 19, 1992,. . .".
In order to avoid the problem that a "compromise" presents, the majority has grounded its position on the principle of confession of judgment. In so doing, it faces even greater problems. An answer was filed by the City denying claimant's allegations. Bates' letter was addressed to plaintiff's counsel and not the Court. It was neither authenticated nor introduced as evidence at the hearing. The letter itself references a conversation with claimant's counsel which is not of record. The acknowledgment that claimant's hepatitis is work related is clearly predicated on that conversation and the assurance that the claim is for medical expenses only. Furthermore, the letter was not treated by the Administrative Hearing Officer as a confession of judgment, but as a compromise.
If the judgment with all of its infirmities is left to stand and claimant later contends that he is totally and permanently disabled, is the City not foreclosed from contesting that the claimant's hepatitis was work related?
If there was a compromise or a confession of judgment, the facts supporting the claim are irrelevant, however, it is worth noting that claimant's allegation of work related hepatitis is based solely on a letter in the record but not introduced into evidence from Dr. Catherine J. Murray, dated March 23, 1992 and addressed "To Whom It May Concern", which reads as follows:
"I have been seeing Lloyd Price since October of 1991. He has chronic hepatitis "C" with chronic active hepatitis."
"His only risk factor for this was contact with blood products experienced as a fireman. This makes it highly likely that this was contracted at work."
Claimant was never examined by the City and never deposed. Why then would the City place itself at risk for future disability claims by a confession of judgment that claimant's condition was work related?
What is clear is that an oral agreement was entered into by Bates to pay claimant's related medical bills. There was no confession of judgment by the City in the proceedings that plaintiff has hepatitis or that it was work related.
Had the Court set this matter for a hearing on the merits and properly notified the City, and had the claimant introduced the doctor's report and the Bates' letter into evidence, it would have been appropriate for the Administrative Hearing Officer to have rendered a judgment on the merits in favor of claimant and against the City. This was not done. It came before the court on a rule to force the city attorney to sign the compromise documents.
The majority also dismisses the City's claim that it was not served with the order of the Administrative Hearing Officer setting the Rule to Show Cause.
Citing La. Code Civ.Proc.Ann. art. 2004 (West 1990) they find that the City must bring a separate action of nullity. This matter is on appeal and any error of record, not requiring further evidence, called to this court's attention is properly before the court and must be considered. See La. Code Civ.Proc.Ann. arts. 2005 (West 1990) and 2164 (West 1961).
The claimant's petition was served through William Aaron, City Attorney. It was answered by Rosenbush Claims Service. On October 20, 1992, the Administrative Hearing Officer sent notice to Milton Osborne, City Attorney, that the matter was continued until November 2, 1992 for submission of a joint petition for settlement.
Not until claimant's counsel filed on November 10, 1992, the Rule to Show Cause and filed there with Bates' October 19, 1992 letter to her, does Bates name appear anywhere in these proceedings. Irrespective of the City's later motion to substitute counsel of record, Bates was never counsel of record in this matter. He made no appearance and no pleading bears his name. He was an attorney in the City Attorney's Office with whom counsel for claimant conferred. After sending the letter of October 19th, he advised claimant's counsel on November 13, 1992, that he had been instructed not to proceed with the "compromise". Claimant's counsel's letter of November 23, 1992 to Bates advising him that the Rule to Show Cause was set for December 4th, does not satisfy the requirement of notice to the City under La. Code Civ.Proc.Ann. arts. 1313, 1314 (West 1984) and 1571 (West 1990) or the Administrative Procedure Act, La.Rev.Stat. Ann. § 49:950 (West 1987).
I would vacate the judgment of the Administrative Hearing Officer and remand the case for a trial on the merits.