Opinion
2012 CA 0753
12-21-2012
LEONARD BRACKENS v. GEORGIA PACIFIC, ET AL PAYNE & KELLER, EMPLOYER - LAMBERT & NELSON (REFERRING ATTORNEY) AND THEIR PROFESSIONAL INSURER AND PLAINTIFF STEERING COMMITTEE
Peggy M. H. Robinson Baton Rouge, Louisiana Attorney for Plaintiff-Appellant Leonard Brackens Hugh P. Lambert Cayce C. Peterson Candice C. Sirmon New Orleans, Louisiana Attorneys for Defendant/Appellee Lambert & Nelson
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF IBERVILLE
STATE OF LOUISIANA
DOCKET NUMBER 70715, DIVISION "D"
HONORABLE WILLIAM C. DUPONT, JUDGE
Peggy M. H. Robinson
Baton Rouge, Louisiana
Attorney for Plaintiff-Appellant
Leonard Brackens
Hugh P. Lambert
Cayce C. Peterson
Candice C. Sirmon
New Orleans, Louisiana
Attorneys for Defendant/Appellee
Lambert & Nelson
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ. Mc DONALD , J.
This matter derives from litigation involving a chemical spill in the Georgia Gulf Corporation facility in Iberville Parish, Louisiana, in September 1996. Mr. Leonard Brackens and numerous others were injured as a result of exposure to these chemicals. On the advice of retained counsel, defendants Lambert and Nelson, he settled and compromised his claims. He now attempts to nullify this settlement; that is the focus of the present litigation.
Particularly, appellant filed a petition on September 8, 2011, in the Eighteenth Judicial District Court "To Vacate Order and Declare Judgment an Absolute Nullity." The petition alleged that Mr. Brackens was injured while in the scope of his employment on September 26, 1996. It also alleged Mr. Brackens was never informed of the availability of Workers' Compensation relief by the attorneys that were representing him at the time. Instead Mr. Brackens was advised to settle his claims as a tort settlement. He signed a release of all claims in return for a tort settlement, and an order was signed on October 27, 1999 by a workers' compensation tribunal approving the compromise agreement in which the appellant and appellee, Payne & Keller, et al were parties. It is appellant's position that he was coerced into agreeing to the settlement of his tort claim and any workers' compensation. Also, he argues that his attorneys are guilty of fraud, ill practice, collusion, and conspiracy.
Mr. Brackens' former attorneys, who are defendants in this suit, filed several exceptions and a motion for sanctions. Subsequently, on November 7, 2011, the plaintiff-appellant filed A Motion for Leave to File First Supplemental and Amending Petition. The issues were heard in the trial court on November 14, 2011.
The judge had several problems with the petition. After requesting clarification from the plaintiff-appellant, the judge informed counsel that among his problems was the fact that he did not have authority to declare the work of the workers' compensation tribunal null. The trial court denied the motion to file a supplemental and amending petition, and dismissed the petition with prejudice, commenting, "I have looked at this record from one end to the other. I've read all of your documents that y'all have submitted to me. ... This is the most frivolous case I've seen in thirty years of practice."
The trial court then heard defendant's exceptions raising the objections and motion. The trial court sustained the exceptions of res judicata and prescription. The trial court also heard testimony and received evidence regarding the time and effort that had been spent defending what the defendants asserted were frivolous claims. The defendants noted that not only had the allegations been reviewed in the First Circuit Court of Appeal, but also that the plaintiff-appellant had filed a complaint with the disciplinary council asserting the same allegations. Sanctions in the amount of eleven thousand eight hundred fifty dollars {$11,850.00) and costs of the proceedings in the amount of one thousand one hundred and eighty dollars and seventy-seven cents ($1,180.77) were awarded jointly against Mr. Brackens and his attorney.
Appellant alleges that the trial court erred by failing to liberally grant plaintiff-appellants' Motion for Leave to File First Supplemental and Amending Petition; erred in granting defendants-appellees' Peremptory Exceptions of Res Judicata and Prescription; and erred in granting defendant-appellees' Motion for Sanctions.
We note the expenditure of time and energy by the trial court on these matters. With regard to the allegation that plaintiff-appellant was unaware of the chemicals to which he was exposed and his injuries at the time of agreeing to settle, we note that the settlement agreement provides that the "WORKER alleges that he/she sustained injuries and/or damages as a result of his/her employment ... when he/she claims he/she was exposed or may have been exposed to certain chemicals, including, but not limited to [specified chemicals] and/or other chemicals and/or substances, known or unknown, toxic or otherwise ..." We find that this language is sufficient to cover all claims, existing or potential, and all chemical exposures, known and named, or determined in the future. To settle these claims, plaintiff-appellant received two hundred seventy-five thousand, five hundred thirty-one dollars and 48/100 cents ($275,531.48). These claims were heard by the Worker's Compensation tribunal and reviewed by the First Circuit Court of Appeal. See Brackens v. Payne and Keller Co., Inc. 2006-0865 (La. App. 1st Cir. 9/5/07), 970 So2d. 582.
With regard to the claims of legal malpractice, we note that the same allegations were previously filed by Mr. Brackens by letter to the disciplinary council in 2000. Those records do not exist; but an affidavit attests to the fact that Mr. Brackens didn't pursue the matter. Factually, the action taken by his former counsel, as recited by his present counsel, indicate several considerations that were covered extensively, and that militate in favor of Mr. Brackens accepting the settlement. As a legal matter, any claims he may have had against his counsel for matters they handled for Mr. Brackens in 1999, prescribed many years ago.
After a thorough review of the record and the evidence, we find no error on the part of the trial court. Accordingly, this matter is affirmed, and this opinion is issued in compliance with Uniform Rules Court of Appeal, Rule 2-16.1.B. Costs are assessed against Leonard Brackens.
AFFIRMED.