81 So. 3d 895
La. Ct. App.2011Background
- Roman, a claimant in a worker’s compensation case, challenged a summary-judgment ruling favoring CONCO and dismissal of his claim with prejudice.
- CONCO moved for summary judgment on November 29, 2010, arguing Roman forfeited benefits under La.R.S. 23:1208 and had been paid indemnity benefits during disability.
- Counsel Emmanuel, Roman’s attorney of record, was served with the motion but withdrew on December 14, 2010 and did not oppose the motion.
- An ex parte order permitted Emmanuel to withdraw; the withdrawal letter advised Roman of a trial date but did not provide a clear notice of the January 7, 2011 hearing.
- The OWC judge set the hearing for January 7, 2011, but Roman did not appear; notices to Roman were sent to the wrong address or were not received.
- The judgment was entered January 12, 2011; Roman timely appealed asserting he never received notice of the hearing, triggering due-process concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did lack of personal notice to Roman at the hearing violate due process? | Roman argues he never received hearing notice. | CONCO contends notice to counsel sufficed and later notice to Roman via withdrawal letter was adequate. | Yes; due process requires direct notice to the unrepresented claimant, warranting reversal. |
| Was the withdrawal of counsel properly notice-compliant, affecting the hearing? | Roman did not receive proper notice despite withdrawal. | Counsel complied with withdrawal procedures. | No; withdrawal notice did not provide adequate or proper notice of the hearing to Roman. |
| Should the summary judgment be reversed and remanded for a new hearing with proper notice? | No notice denied opportunity to respond. | Summary judgment should stand if properly supported. | Reversed and remanded for a new hearing with proper service and notice. |
Key Cases Cited
- Chaney v. Coastal Cargo, Inc., 730 So.2d 971 (La.App. 4 Cir. 1999) (final judgments require proper notice)
- Davis v. Dunn & Bush Const., 858 So.2d 451 (La.App. 1 Cir. 2003) (written notice of trial when attorney withdraws must be provided)
- Metro Gaming & Amusement Co. v. Deckbar & Grill, L.L.C., 972 So.2d 1264 (La.App. 5 Cir. 2007) (absent notice of trial, vacate judgment and remand)
- Deckbar v. Deckbar, 972 So.2d 1264 (La.App. 5 Cir. 2007) (notice adequacy governs due process)
- Hornage v. Cleco Power, L.L.C., 899 So.2d 153 (La.App. 3 Cir. 2005) (procedural due process requires opportunity to be heard)
- Lassere v. State, Dep’t of Health & Hosp., Office of Pub. Health, 808 So.2d 513 (La.App. 1 Cir. 2001) (due process requires adequate notice of hearing)
- Jackson v. General Motors Truck Plant, 830 So.2d 426 (La.App. 2 Cir. 2002) (notice and opportunity to be heard are essential)
- Darby v. U-Haul Co., 876 So.2d 896 (La.App. 4 Cir. 2004) (notice-related due process considerations in hearings)
- Pyle v. Pyle, 769 So.2d 626 (La.App. 3 Cir. 2000) (address/notice issues in litigation)