Smart Document Solutions, LLC v. Michael B. Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-670

SMART DOCUMENT SOLUTIONS, LLC

VERSUS

MICHAEL B. MILLER

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APPEAL FROM THE
CROWLEY CITY COURT
PARISH OF ACADIA, NO. 20920
HONORABLE T. BARRETT HARRINGTON, CITY COURT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Michael B. Miller
Miller & Miller
P. O. Box 1630
Crowley, LA 70527-1630
Counsel for Defendant/Appellant:
Michael B. Miller

Brian F. Blackwell
Blackwell & Associates
9270 Siegen Lane, Suite 201
Baton Rouge, LA 70810
Counsel for Plaintiff/Appellee:
Smart Document Solutions, LLC

PICKETT, Judge.

The defendant, Michael B. Miller, appeals a judgment of the trial court

awarding the plaintiff, Smart Document Solutions (SDS), LLC, $4,194.76 plus legal

interest from date of judicial demand, for services rendered. We affirm the judgment

of the trial court.

FACTS

The defendant, an attorney, subpoenaed medical records from a number of

health care providers in the course of his practice. The plaintiff, as agent for the

health care providers, answered the subpoenas, supplied the records requested by the

defendant, and invoiced him for its service. The defendant accepted the records.

Subsequently, the defendant refused to pay the plaintiff’s invoices, claiming that he

had not issued subpoenas to the plaintiff, but, rather to the various health care

providers which used the plaintiff’s services. The plaintiff filed suit and was awarded

$4,194.76 plus legal interest from the date of judicial demand and all costs. The

defendant appeals.

LAW AND DISCUSSION

The trial of this matter took place on February 27, 2007. Although properly

noticed, the defendant/appellant failed to appear. The plaintiff proceeded to put on

its case. The first witness called was Ms. Lynette Nickel, the clerk of the Crowley

City Court, who testified that she was in court the last time the case was called for

trial. She stated that the defendant was also present; that the case was continued

because the defendant had yet to file his answer; that, not only was the new date

announced in open court, but that notice of the new trial date was prepared; and that

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the notice, along with the plaintiff’s Amended Petition and Interrogatories were

served on the defendant.

The next witness called was Glenn Deville, the City Marshall, who was also

in court when the case was continued. He remembered Mr. Miller being in the court

when the new date was set and stated that he served the papers described by Ms.

Nickel on the defendant, through his secretary, at the defendant’s office.

The plaintiff then called Ms. Margaret Stevenson, the SDS Operations Director

for north, central, and southwest Louisiana, along with north Mississippi and north

Texas. Ms. Stevenson explained that medical providers contract with SDS to pull and

copy subpoenaed records so that their own employees don’t have to do so. She then

identified individually each request (along with its supporting documentation) from

Mr. Miller for medical records and the invoice sent to Mr. Miller for processing each

request.

The defendant raises six specifications of error on appeal. Assignments 1, 4

and 5 all address one issue—does the plaintiff have a right of action against the

defendant. Assignment number five also raises the issue of agency and whether

Miller, as agent for his clients, should be held liable for the records he ordered in

connection with the representation of his clients. We agree with the trial judge that

the plaintiff has a right of action. As discussed more fully below, Margaret

Stevenson, an officer of the plaintiff/company who dealt with such records as

requested by the defendant in the normal course of business established that SDS was

an agent of the medical providers, hired by them to answer requests for medical

records. Furthermore, also as discussed below, SDS meets the definition of a “health

care provider” as used in R.S. 13:3715.1(G). As either the agent of the health care

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providers it represented or as a defined health care provider, SDS has the right to

proceed against the defendant, to whom it provided goods and services.

As to the agency issue, the defendant claims that his clients owe the medical

providers for the subpoenaed materials. Although this argument may appear to be

technically correct, we find the special relationship between an attorney and his client

does not support the defendants argument. We have not found an instance in which

a Louisiana court has ruled on this issue, so we have looked to a number of foreign

jurisdictions on which to base our conclusion. We are most impressed by the

analysis and conclusion from the North Dakota Supreme Court:

[T]he attorney-client relationship differs from the general agency
relationship because the attorney-client relationship is subject to an
established code of professional responsibility governing members of
the Bar, and the attorney, not the client, is in charge of the litigation and
determines the services necessary to promote the best interests of the
litigation. See Judd & Detweiler v. Gittings, 43 App.D.C. 304 (1915);
Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978); Burt v.
Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966); Monick v. Melnicoff,
144 A.2d 381 (D.C.Mun.App.1958); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237 (1970); Brown & Huseby, Inc. v.
Chrietzberg, 242 Ga. 232, 248 S.E.2d 631 (1978).

The rationale for this rule was perhaps best stated in Judd &
Detweiler v. Gittings, 43 App.D.C. at 310-311:

“While it is true that an attorney is the agent of his client,
the relation between them, we think, is such that it calls for
some modification of the general rule which the law
recognizes as existing between principal and agent. In
ordinary transactions, the agent is subordinate to the
principal, the principal standing out as the real actor, and
the agent merely as a subordinate representative. But the
relation between attorney and client is different. The
attorney has complete charge of the litigation, is so
recognized by the court, and, as such, dominates in all
matters pertaining to the conduct of the litigation. ‘While
in one sense the client is the principal and the attorney the
agent, and while the attorney is professionally and
constantly acting for clients, whose names from the records
of the courts and other means of publicity are almost

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always known or may be so, yet there are peculiarities in
his case which make it necessary to apply to it with some
qualification the general principles of agency. In most
cases of agency the principal is what the name imports,--
the leading person in the transaction. The agent is, as the
term implies, a mere subordinate, important only as the
representative of the principal; often representing only one
principal. An attorney at law, on the other hand, occupies
a position of recognized importance in itself, not
infrequently of great prominence before the public, in
which he often has a large number of clients, his relations
to whom are full of detail, and who are little noticed by the
public.’ Heath v. Bates, 49 Conn. 342, 44 Am.Rep. 234.
The attorney usually determines what steps are to be taken
in his client’s interest, and the acts of the attorney in the
conduct of litigation are binding upon the client. We
therefore deem the just and equitable rule of law thus
established to be that, in the absence of express notice to
the contrary, court officials and persons connected, either
directly or indirectly, with the progress of the litigation,
may safely regard themselves as dealing with the attorney,
instead of with the client.”
....

We hold that when an attorney requests goods or services in
connection with litigation for a named client, the law will consider the
attorney as the principal and will imply a promise on the part of the
attorney to pay the reasonable expenses for the goods or services unless
the attorney expressly disclaims liability.

Anheluk v. Kubik, 374 N.W.2d 67, 69-70 (N.D. 1985). This rule has been followed

in a number of other jurisdictions and we find it most accurately describes the

attorney-client relationship in this state. See also St. Louis & Westervelt, Inc. V.

Giulini, 673 N.Y.S.2d 820 (N.Y.Sup.Term 1998); Cahn v. Fisher, 805 P.2d 1040

(Ariz.App. 1990); Sullivan v. Greene & Zinner, P.C., 689 N.Y.S.2d 180 (N.Y. City

Ct. 1999); and McCullough v. Johnson, 816 S.W.2d 886 (Ark. 1991).

The defendant also objects to what he characterizes as an impermissible

expansion of the pleadings and the introduction of hearsay evidence relying on

Cunningham v. M & S Marine, Inc., 05-805 (La.App. 4 Cir. 1/11/06), 923 So.2d 770.

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In Cunningham our colleagues of the fourth circuit stated:

Confirming a default judgment is akin to a trial at which only the
plaintiff is present [the situation in the case sub judice]. 1 Frank L.
Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil
Procedure § 12.3 (1999). At such trial, the unopposed plaintiff must
comply with a set of special, somewhat strict rules in proving his claim.
19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof
§ 2.9 (1999). The following special rules are pertinent to the present
case.

First, the plaintiff is confined to the facts and the theories pled in
his petition; he may not expand his pleadings by introducing evidence
[which does so] at the confirmation hearing. Thus, the plaintiff is
precluded from obtaining a default judgment “different in kind from that
demanded in the petition.” La. C.C.P. art. 1703; see Spear v. Tran,
96-1490 (La.App. 4 Cir. 9/18/96), 682 So.2d 267. However, the
Louisiana Supreme Court has held that “the pleadings which lead up to
the demand, or prayer, upon which a default judgment is based are to be
construed no more restrictively than pleadings suggestive of other
judgments.” Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260
La. 527, 532, 256 So.2d 614, 616 (1972).

Second, “[b]ecause at a default confirmation there is no objecting
party, . . . both plaintiff and the trial judge should be vigilant to assure
that the judgment rests on admissible evidence” that establishes a prima
facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and
Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As
a corollary, “[e]xcept as authorized by the Code of Civil Procedure
Article 1702, or evidence that fits within one of the exceptions provided
by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to
confirm a default.” Id.; see La. C.E. art. 1101(A)(providing that
“[e]xcept as otherwise provided by legislation, the provisions of this
Code shall be applicable to the determination of fact ... in proceedings
to confirm a default.”)

Third, depending on the nature of the plaintiff’s demand, Article
1702 sets forth several exceptions to the rule against the use of hearsay
evidence at the confirmation hearing. One of those pertinent exceptions
is that “[w]hen a demand is based upon a delictual obligation, the
testimony of the plaintiff with corroborating evidence, which may be by
affidavits and exhibits annexed thereto which contain facts sufficient to
establish a prima facie case, shall be admissible, self-authenticating, and
sufficient proof of such [delictual] demand.” La. C.C.P. art. 1702(B)(2).

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Id. at 773. In such a case as the one sub judice, “an appellate court is restricted to

determining whether the record contains sufficient evidence to prove a prima facie

case.” Id. at 773. We find the plaintiff proved a prima facie case.

The following is also well settled in Louisiana:

La.C.C.P. art. 865 provides the general principle that pleadings
are to be “construed as to do substantial justice.” The Louisiana
Supreme Court has recently interpreted that provision to require that
pleadings be construed “to afford litigants their day in court, to arrive at
truth, and to do substantial justice.” Kuebler v. Martin, 578 So.2d 113,
114 (La.1991). Additionally, “pleadings are to be construed in the light
of their allegations as a whole and not in view of a detached sentence or
paragraph therein standing alone.” Mid-City Investment Co. v. Young,
238 So.2d 780, 784 (La.App. 1st Cir.1970). Pleadings are to be
construed liberally since technical rules of pleading no longer apply in
Louisiana courts; thus, any doubt concerning the meaning of a pleading
must be resolved in favor of the pleader in order to do substantial
justice. Boudreaux v. Allstate Finance Corp., 217 So.2d 439, 444
(La.App. 1st Cir.1968). From these statements, the following principle
has been derived:

When the pleading in question is construed in its entirety
and with all other matters occurring during trial which
relate to the pleading, and it is more reasonable than not to
conclude that the adverse party received fair notice and
was fairly informed of the pleading's intended substantive
result and procedure by which that result was intended to
be accomplished, the pleading will be held to be legally
effective and to satisfy the requirements of the Code of
Civil Procedure which are raised in objection to the
pleading.

Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618,
623 (La.App. 2d Cir.1975).

Nicholson & Loup, Inc. v. Carl E. Woodward, Inc., 596 So.2d 374, 385-86 (La.App.

4 Cir.), writs denied, 605 So.2d 1098 (La.1992).

The invoices introduced into evidence were verified by the testimony of

Margaret Stevenson, an officer of the plaintiff/company who dealt with such records

in the normal course of business. Thus, her testimony and the invoices were

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admissible under the business records exemption to the hearsay rule. Furthermore,

we do not find that either expanded the pleadings. The pleadings indicated that the

defendant owed the plaintiff for medical records which were copied and sent to him

at his request. The evidence and testimony substantiated that claim. The judgment

obtained by the plaintiff was not “different in kind from that demanded in the

petition” and was supported by the evidence and testimony. The plaintiff’s amended

petition, plus the evidence and testimony submitted at trial clearly establish that the

plaintiff provided the defendant with a service (copying) and a product (the copied

medical records) at the defendant’s request. The plaintiff is entitled to be

compensated for this.

Finally, the defendant argues that the trial court erred in failing to find SDS

failed to comply with La.R.S. 13:3715.1(D) and thus the defendant is not liable for

payment of the charges billed by SDS. We disagree. Non-compliance with La.R.S.

13:3715.1(D) does not, in itself, provide a party with a basis for refusing to pay for

requested and supplied medical records. In fact, the only language in the statute

addressing payment for records supports the proposition that the attorney should pay.

R.S. 13:3715.1(G) (emphasis ours) states that “[t]he health care provider shall be

reimbursed by the person causing the issuance of the subpoena, summons, or court

order in accordance with the provisions of R.S. 40:1299.96.” Louisiana Revised

Statutes 40:1299.96(B)(1) provides: “‘Health care provider’ means a ‘health care

provider’ as defined in R.S. 40:1299.41 or a ‘state health care provider’ as defined

in R.S. 40:1299.39;” and R.S. 40:1299.41(A)(1) provides (emphasis ours):

“Health care provider” means a person, partnership, limited
liability partnership, limited liability company, corporation, facility, or
institution licensed or certified by this state to provide health care or
professional services as a physician, hospital, nursing home, community

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blood center, tissue bank, dentist, registered or licensed practical nurse
or certified nurse assistant, offshore health service provider, ambulance
service under circumstances in which the provisions of R.S. 40:1299.39
are not applicable, certified registered nurse anesthetist, nurse midwife,
licensed midwife, pharmacist, optometrist, podiatrist, chiropractor,
physical therapist, occupational therapist, psychologist, social worker,
licensed professional counselor, licensed perfusionist, or any nonprofit
facility considered tax-exempt under Section 501(c)(3), Internal
Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and
treatment of cancer or cancer-related diseases, whether or not such a
facility is required to be licensed by this state, or any professional
corporation a health care provider is authorized to form under the
provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any
partnership, limited liability partnership, limited liability subpoena,
management company, or corporation whose business is conducted
principally by health care providers, or an officer, employee, partner,
member, shareholder, or agent thereof acting in the course and scope of
his employment.

The testimony of Ms. Stevenson established that SDS answered the subpoenas the

defendant caused to be issued to its clients requesting medical records as part of the

service SDS provided to its clients. Thus, SDS meets the definition of “health care

provider” as used in R.S. 13:3715.1(G).

In sum, we find none of the defendant’s assignments of error have merit. We

find that in the absence of express notice to the contrary, officers of the court,

witnesses, and other persons connected, either directly or indirectly, with an ongoing

legal proceeding, may safely regard themselves as dealing with the attorney, instead

of with his client.

Accordingly, for the reasons stated above, the judgment of the trial court is

affirmed. All costs of this appeal are assessed against the defendant, Michael B.

Miller.

AFFIRMED.

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