Opinion
NO. 2017 CW 0886
06-30-2017
HENRY NORRIS WILLIAMS, ET AL v. THE DOW CHEMICAL COMPANY, ET AL
In Re: ExxonMobil Corporation, applying for supervisory writs, 18th Judicial District Court, Parish of Iberville, No. 74597. BEFORE: McDONALD, McCLENDON, WELCH, HOLDRIDGE AND PENZATO, JJ.
WRIT GRANTED IN PART WITH ORDER; DENIED IN PART. Parties are free to contract for any lawful object. La. Civ. Code art. 1971. However, a contract is absolutely null when it violates a rule of public order; absolute nullity may be invoked by any person or declared by the court on its own initiative. La. Civ. Code art. 2030. A court may intercede on behalf of a non-settling defendant when the remaining party demonstrates that the settlement would cause legal prejudice in the form of a denial of a procedural or substantive right. Collins v. Coastline Construction, 820 F.Supp. 270, 273, (E.D.L.A. 1993). In civil matters, as well as criminal matters, the right to counsel includes the right to legal representation of one's choice; this right is one of constitutional dimensions and can be overridden only if it can be proven that there is a compelling reason to do so. Disaster Restoration Dry Cleaning, LLC v. Pellerin Laundry Machinery Sales Co., Inc., 2005-0715 (La. 4/17/06), 927 So.2d 1094, 1101.
Accordingly, the writ is granted in part. We hereby vacate the June 26, 2017 ruling denying ExxonMobil Corporation's motion "that the Illegal Provisions Contained in the Settlement Agreement Between Plaintiffs' [sic] and The Dow Chemical Company Be Declared Null and Be Stricken From the Settlement Agreement." The trial court is instructed to order the production of the settlement agreement at issue for an in camera inspection. See La. Civ. Code art. 3072. Following such inspection and any other evidentiary hearing the court deems necessary for proper adjudication, the court shall reconsider and rule on ExxonMobil's above-described motion and issue a new ruling thereon. In the event the court determines that the settlement agreement is not subject to nullification in whole or in part (see La. Civ. Code art. 2034), the court shall continue the trial for such time as it deems reasonable for ExxonMobil to designate and adequately prepare substitute counsel. The court shall supply this court with a copy of its ruling. To the extent the application seeks other relief, it is denied.
Trial of this matter shall remain stayed pending rendition of the trial court's new ruling on ExxonMobil's motion, at which time the stay is lifted.
PMc
AHP
JMM
Holdridge, J. concurs. The settlement agreement entered into by the plaintiff necessitates that the trial judge continue the trial as to ExxonMobil. The continuance should be granted at plaintiff's costs since it was the language of his agreement that required the continuance of the trial.
Welch, J. dissents. I would deny on the showing made. This court does not have the record nor a copy of the settlement agreement between plaintiffs and Dow Chemical. This court does not know if Mr. Bienvenu is going to represent ExxonMobil or not. This court is, I believe, wrong ordering the trial court to issue a declaratory judgment declaring whether or not all or part of a settlement agreement is a nullity. The only issue to be determined is whether Mr. Bienvenu represents ExxonMobil. If he does and chooses to continue then the trial should proceed. If he represents ExxonMobil and chooses not to continue his representation and this results in prejudice to ExxonMobil, a mistrial or a continuance should be granted. The trial court should make a full record on these issues so this court can make a considered decision. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT