Gilbert v. Andry, IV and Gibby Andry, the Andry Law Firm, LLC v. Omega Hospital, L.L.C.

GILBERT V. ANDRY, IV AND * NO. 2019-CA-0459
GIBBY ANDRY, THE ANDRY
LAW FIRM, LLC * COURT OF APPEAL

VERSUS * FOURTH CIRCUIT

OMEGA HOSPITAL, L.L.C. * STATE OF LOUISIANA

*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-10018, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Roland L. Belsome,
Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)

Campbell Edington Wallace
Everett R. Fineran
FRILOT, L.L.C.
1100 Poydras Street
Suite 3700
New Orleans, LA 70163--3700
COUNSEL FOR PLAINTIFF/APPELLANT

Philip Anthony Franco
Timothy M. Brinks
ADAMS & REESE LLP
701 Poydras Street, Suite 4500
New Orleans, LA 70139
COUNSEL FOR DEFENDANT/APPELLEE

REVERSED IN PART,
AFFIRMED IN PART,
AND REMANDED

NOVEMBER 6, 2019

Appellants, Gilbert V. Andry, IV, and Gibby Andry, The Andry Law Firm,

LLC, appeal the district court’s March 22, 2019 judgment granting summary

judgment in favor of Appellee, Omega Hospital, LLC, and denying their motion

for partial summary judgment. The judgment dismissed Appellants’ claims with

prejudice. For the reasons that follow, we reverse the judgment of the district court

in part, affirm in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2018, Appellants filed a petition for damages against

Appellee. Therein, Appellants stated that on November 3, 2010, Appellee filed its

own petition against Louisiana Health Service and Indemnity Company d/b/a Blue

Cross/Blue Shield of Louisiana (hereinafter “BCBS”), resulting from BCBS’

“systematic underpayment for medical services of out-of-network providers like

Omega.” Appellee ultimately retained Appellants to represent it on a contingency

fee basis.1 On January 20, 2012, the parties entered into an agreement whereby

1
Appellee was originally represented by a different firm that was apparently charging an hourly
rate for its services.

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Appellants would receive a fee of one-third of the “gross recovery” obtained by

Appellee in their suit against BCBS. Specifically, the parties agreed that

Appellants would represent Appellee “in all matters pertaining to any and all

claims which we have or may have against [BCBS,]” further specifying the case

name and number for the already pending action. The parties agreed that in the

event of settlement, Appellants’ one-third fee would “be based on a percentage of

the value of the case at the time of the settlement[.]” Appellants thereafter retained

T. Cary Wicker, III and his firm to serve as co-counsel.

Pursuant to the agreement, Appellants litigated Appellee’s claims up to the

weeks before trial, at which point BCBS communicated an interest in mediation.

Ultimately, according to Appellants, the mediation resulted in an agreement for

BCBS to pay “a lump sum payment to Omega for underpayment for past medical

services as well as an in-network contract for future services provided by Omega.”

Appellee, on the other hand, notes the agreement contained language only that the

parties “will undertake a good faith effort to negotiate an in-network provider

agreement.” While this is true, the agreement further set forth “terms and

conditions” with respect to those negotiations, e.g., length of the agreement (three

years) and reimbursement rates. A settlement agreement was thereafter finalized on

May 9, 2016.

Days after the mediation agreement had been signed, Appellee

communicated to Appellants its understanding that Appellants would be paid a fee

based only on the gross lump sum payment by BCBS, and not also on the gross

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recovery associated with the in-network agreement, a dispute which is alleged to

have ultimately brought an end to the representation.2 Mr. Wicker, co-counsel in

the matter, was retained and proceeded to negotiate with BCBS on behalf of

Appellee on the terms of the in-network agreement. In September of 2016,

Appellee filed another suit against BCBS to enforce the settlement agreement,3

which suit was ultimately dismissed in May, 2018, as a result of the parties

reaching an agreement on an in-network contract. Appellants’ petition argued that

Appellee’s gross recovery included the monies it will receive as a result of its in-

network contract with BCBS; however, Appellee paid only $100,000, and

submitted a release to Appellants, which Appellants refused to sign.

Appellants’ petition submitted that Appellee’s in-network contract with

BCBS “was a significant part of the consideration received” by Appellee, and that

they would have “demanded a substantially higher lump sum” but for that contract.

It further alleged that fees to be paid by Appellee to Appellants “for the gross

recovery by [Appellee] for an in-network agreement with BCBS were specifically

discussed.”

On January 7, 2019, Appellee filed a motion for summary judgment and an

exception, and on February 21, 2019, Appellants filed their own motion for partial

summary judgment. On March 22, 2019, the district court held a hearing on the

2
Appellants’ petition submitted this amount would be “one-third of the gross past and future
payments [Appellee] will received pursuant to its in-network agreement with BCBS in excess of
its out-of-network reimbursement rate.”
3
The lawsuit was filed as a result of Appellee’s contention that BCBS was not negotiating in
good faith.

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motions for summary judgment and Appellee’s exception; it ultimately granted

Appellee’s motion and denied Appellants’ motion, rendering Appellee’s exception

moot. The court entertained arguments similar to those on appeal set forth more

fully below. However, counsel for Appellee argued that if Appellants intended to

collect fees on the in-network contract, they should have explicitly included such

language in the agreement, contrasting the agreement in dispute with a

subsequently drafted agreement – one drafted by Appellants that was never

presented to Appellee or signed by Appellee – that included explicit language

regarding calculation of fees on future payments. At that point, the court ruled,

stating “[a]nd that’s the reason I’m granting your summary judgment and denying

[Appellants’ motion].” This appeal follows.

First, Appellants argue that the language of the attorney-client contract

between the parties unambiguously included language that Appellants would

receive a fee based on the gross recovery associated with the Appellee’s in-

network agreement with BCBS. Appellants further argued that Appellee’s payment

of $100,000 with respect to work performed on the in-network agreement ratified

the parties’ understanding that Appellants were entitled to a fee on the in-network

recovery, but not as to the final amount of the fee. Appellee, on the other hand,

also argues that the language of the agreement is unambiguous, though it reaches

the exact opposite conclusion of Appellants – that fees based on the gross recovery

of the in-network contract were not contemplated. It further argues that the

$100,000 payment made to Appellants was made to settle the dispute. In support,

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Appellee points to a Rule 1.5(c) statement provided by Appellants, which

Appellants were required to provide pursuant to the Rules of Professional Conduct

(hereinafter “RPC”).4 Appellants therein noted the $100,000 payment made by

Appellee. Though the statement contains handwritten notations regarding disputes

as to certain fees, there are none with respect to the supposed settlement.

ANALYSIS

Standard of Review

We review the district court’s judgment granting summary judgment de

novo. Richard v. Turner, 2009-0161, p. 4 (La. App. 4 Cir. 7/1/09), 16 So.3d 523,

525 (citation omitted).

Contract Interpretation

The law of contract interpretation is well-settled. “Interpretation of a

contract is the determination of the common intent of the parties.” La. C.C. art.

2045. “When the words of a contract are clear and explicit and lead to no absurd

4
Rule 1.5(c) provides as follows:

A fee may be contingent on the outcome of the matter for which the
service is rendered, except in a matter in which a contingent fee is prohibited by
Paragraph (d) or other law. A contingent fee agreement shall be in a writing
signed by the client. A copy or duplicate original of the executed agreement shall
be given to the client at the time of execution of the agreement. The contingency
fee agreement shall state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal; the litigation and other expenses that are to be
deducted from the recovery; and whether such expenses are to be deducted before
or after the contingent fee is calculated. The agreement must clearly notify the
client of any expenses for which the client will be liable whether or not the client
is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement stating the outcome of the
matter and, if there is a recovery, showing the remittance to the client and the
method of its determination.

(emphasis added).

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consequences, no further interpretation may be made in search of the parties’

intent.” La. C.C. art. 2046. “Generally, when a written contract is clear

and unambiguous, parol evidence may not be admitted to negate or vary its terms.”

Pope v. Khalaileh, 2005-0027, p. 4 (La. App. 4 Cir. 6/1/05), 905 So.2d 1149, 1151

(citation omitted). In Campbell v. Melton, 2001-2578, p. 6 (La. 5/14/02), 817 So.2d

69, 75, the Supreme Court stated:

A contract is considered ambiguous on the issue of intent when either
it lacks a provision bearing on that issue, the terms of a written
contract are susceptible to more than one interpretation, there is
uncertainty or ambiguity as to its provisions, or the intent of the
parties cannot be ascertained from the language employed.

“[T]he interpretation of unambiguous contractual provisions is a matter of law[.]”

Landis Const. Co. v. St. Bernard Par., 2014-0096, p. 5 (La. App. 4 Cir. 10/22/14),

151 So.3d 959, 963.

As noted, the agreement contained language that Appellants would represent

Appellee “in all matters pertaining to any and all claims which we have or may

have against [BCBS,]” and that they would receive a fee of one-third of the gross

recovery. In the event of settlement, Appellants’ one-third fee would “be based on

a percentage of the value of the case at the time of the settlement[.]” In granting

summary judgment in favor of Appellee, the trial court apparently relied on parol

evidence – i.e., the unsigned agreement that included more specific language on

fees from future payments on the in-network contract – thus implicitly finding the

language of the agreement ambiguous.

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We also find that the language of the agreement is ambiguous. Appellants

rightly point out that they were engaged to represent Appellee in all matters

pertaining to the claims against BCBS, and further allege that Appellee agreed to

settle with BCBS for a lower lump sum payment based on BCBS’ agreement to

negotiate an in-network contract in good faith. Appellants allege that they were

relieved of their representation after the settlement when it became clear there

would be a fee dispute, yet negotiations between Appellee and BCBS continued.

Appellee’s new counsel ultimately filed suit against BCBS based on its assertion

that BCBS failed to negotiate in good faith—a suit that arguably “pertains to” the

underlying claim and which Appellants would have pursued had Appellee

continued to retain them. On the other hand, Appellee rightly points out that

Appellants could not provide representation that pertained to a “claim” it had no

right to make – to wit, a lawsuit against BCBS for an in-network contract; instead,

obtaining an in-network contract served to facilitate the resolution of its rightful

claim to compensation for BCBS’ history of systematically underpaying Appellee

for its medical services. As the agreement is susceptible to more than one

interpretation regarding whether Appellants were entitled to fees on the in-network

contract, we cannot say it is unambiguous.

Both Appellants and Appellee reference parol evidence; Appellants rely on

Appellee’s subsequent lawsuit against BCBS, while Appellee relies on Appellants’

unsigned engagement agreement that more precisely sets forth recovery of fees on

future payments. “[I]f a court determines as a matter of law that a contract is

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ambiguous, then extrinsic (parol) evidence may be used to determine the true intent

of the parties, and determining the intent of the parties becomes, in part, a question

of fact. Carter v. BRMAP, 591 So.2d 1184, 1188 (La. App. 1 Cir. 1991); See also

LFI Fort Pierce, Inc. v. Acme Steel Buildings, Inc., 2016-71, p. 7 (La. App. 3 Cir.

8/17/16), 200 So.3d 939, 946. Summary judgment is appropriate only when there

is “no genuine issue as to material fact.” La. C.C.P. art. 966. Based on the

foregoing, genuine issues of material fact exist.

Settlement of Fee Dispute

While the district court resolved summary judgment in favor of Appellee

based on the language of the contract and with reference to parol evidence, the

parties further disputed whether a settlement had been reached. There is no dispute

that Appellee paid Appellants $100,000. This payment is reflected on a statement

provided to Appellee by Appellants pursuant to Rule 1.5(c) of the RPC, and

references “Attorney’s Fees for In Network Contract.” However, as a result of

Appellee’s termination of Appellants’ representation, per Rule 1.5(c), Appellants

were required to provide the statement – “the lawyer shall provide the client with a

written statement stating the outcome of the matter and, if there is a recovery,

showing the remittance to the client and the method of its determination.”

Appellee suggests the Rule 1.5(c) statement constitutes a compromise. “A

compromise is a contract whereby the parties, through concessions made by one or

more of them, settle a dispute or an uncertainty concerning an obligation or other

legal relationship.” La. C.C. art. 3071. “A compromise is also made when the

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claimant of a disputed or unliquidated claim, regardless of the extent of his claim,

accepts a payment that the other party tenders with the clearly expressed written

condition that acceptance of the payment will extinguish the obligation.” La. C.C.

art. 3079. “A compromise is valid if there is a meeting of the minds of the parties

as to exactly what they intended when the compromise was reached.” Elder v.

Elder & Elder Enterprises, Ltd., 2006-0703, p. 3 (La. App. 4 Cir. 1/11/07), 948

So.2d 348, 350 (citation omitted). As a contract, a compromise requires offer and

acceptance, and must be in writing, though there is no prescribed form. Id., 2006-

0703, p. 4, 948 So.2d at 351.

As an initial matter, we are wary of reading a compromise into a document

that Appellants were duty-bound to provide per the RPC. Appellants, by

successfully obtaining a recovery, were obligated to provide the Rule 1.5(c)

statement setting forth sums to be remitted, and necessarily, Appellants included

the $100,000 payment already made. Standing alone, this Court cannot find that

the Rule 1.5(c) statement evidences a meeting of the minds as to exactly what was

intended. Appellee, however, further references a receipt agreement provided by

Appellants, indicating remittance “in full and final payment of the above

referenced matter.” We observe that “it is not necessary that everything intended to

be compromised be in one document.” Charbonnet v. Ochsner, 236 So.2d 86, 88

(La.App. 4 Cir. 1970). However, as noted by Appellants, the “matter” referenced

in the receipt is Appellee’s action against BCBS. It is not a receipt “in full and final

settlement” of the dispute between Appellants and Appellee.

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As a contract, we analyze the purported compromise in the same fashion as

the agreement between the parties, and we once again conclude that ambiguity

exists as to whether there was a “meeting of the minds” that the Rule 1.5(c)

statement and receipt agreement constituted a compromise. Once again, parol

evidence is referenced, which the fact-finder is best suited to consider.

CONCLSUION

For the foregoing reasons, we reverse the judgment of the district court

granting Appellee’s motion for summary judgment. We further affirm that portion

of the judgment denying Appellants’ motion for partial summary judgment and

remand for further proceedings.
REVERSED IN PART,
AFFIRMED IN PART,
AND REMANDED

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