The Knoll Law Firm, LLC v. Vincent J. Desalvo

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-809

THE KNOLL LAW FIRM, LLC

VERSUS

VINCENT J. DESALVO

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-1282-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery,
Judges.

AFFIRMED.

Jerold Edward Knoll
Jerold Edward Knoll, Jr.
Edmond H. Knoll
Laura Bishop Knoll
The Knoll Law Firm, LLC
Post Office Box 426
Marksville, Louisiana 71351
(318) 253-6200
COUNSEL FOR PLAINTIFF/APPELLEE:
The Knoll Law Firm, LLC

Vincent J. DeSalvo
7918 Wrenwood Boulevard, Suite A
Baton Rouge, Louisiana 70809
(225) 927-7035
COUNSEL FOR DEFENDANT/APPELLANT:
Vincent J. DeSalvo

CONERY, Judge.

This case involves a dispute between The Knoll Firm and attorney Vincent J.

DeSalvo. The Knoll Firm was counsel for Erick McGill in a personal injury action,

and was replaced as counsel for Mr. McGill by Mr. DeSalvo, who dispersed the

client’s funds received pursuant to a judgment in favor of Mr. McGill without

paying pharmacy charges guaranteed by The Knoll Firm. The trial court found in

favor of The Knoll Firm and awarded judgment against Mr. DeSalvo for the

pharmacy bill in the amount of $1,519.19, which had been voluntarily paid by The

Knoll Firm pursuant to its guarantee on behalf of its then client, Mr. McGill. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. McGill retained the services of The Knoll Firm on July 15, 2011. The

Knoll Firm filed a personal injury lawsuit on Mr. McGill’s behalf against the City

of Marksville and Trent Young in the Twelfth Judicial District Court, Parish of

Avoyelles, for an accident which occurred on July 4, 2011. During its

representation of Mr. McGill, The Knoll Firm guaranteed payment of certain

medical expenses for accident-related treatment, including a bill incurred for

prescribed medication at Don’s Pharmasave in the amount of $1,159.19. 1

On August 6, 2012, Mr. McGill notified The Knoll Firm in writing that he

had obtained new representation, and that Mr. DeSalvo, his new counsel, would

shortly be in contact. On August 22, 2012, Mr. DeSalvo faxed correspondence to

Mr. Edmond Knoll of The Knoll Firm advising of his representation of Mr. McGill.
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Exhibits 1-11, referenced by The Knoll Firm, were admitted into evidence at trial in
globo without objection and contain copies of the bills in question.

In his correspondence, Mr. DeSalvo stated, “Of course, I will protect any expenses

you have in this matter and will be more than happy to discuss an amicable

resolution of the fee with you[.]” Mr. DeSalvo further requested that The Knoll

Firm, “forward the file materials to me and I would appreciate receiving a list of

your expenses so that I can advise the client and send you a protection letter.”

On August 22, 2012, The Knoll Firm filed a lien in the Mortgage Records of

Avoyelles Parish against Mr. McGill, attaching The Knoll Firm’s “CONTRACT

TO HIRE ATTORNEY.” Additionally, on August 22, 2012, The Knoll Firm, via

Facsimile and the U.S. Mail, sent in addition to other file materials, “Mr. McGill’s

Medical Packet showing medical expenses incurred and/or outstanding[.]” The

Medical Packet contained a detailed listing of Mr. McGill’s accident related

medical expenses, including, an outstanding bill from Don’s Pharmasave, inclusive

of the dates 07/15/11-07/10/12, in the amount of $1,159.59. The documentation

supporting the amount owed to Don’s Pharmasave reflected medications

prescribed and filled for Mr. McGill while he was a client of The Knoll Firm.

The August 22, 2012 correspondence from The Knoll Firm to Mr. DeSalvo

also included the following, “I respectfully request that prior to Mr. McGill

receiving any settlement funds that I be contacted to discuss the amount owed to

my firm. . . . Upon settlement, please contact my office to obtain a final list of all

expenses incurred by my office for Eric McGill.”

On June 24, 2014, The Knoll Firm sent another written response to Mr.

DeSalvo’s request for “a list of expenses incurred in regards to Eric McGill,” as a

result of the ongoing litigation. Once again, the list from The Knoll Firm included

an outstanding bill from Don’s Pharmasave, inclusive of the dates 07/15/11-

07/10/12, in the amount of $1,159.59. The medical portion of The Knoll Firm

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expenses also included amounts owed to “LSU Huey P. Long Hospital” for

“$193.00” and to “Dr. Darron McCann” for “$2,941.90,” all guaranteed by The

Knoll Firm.

Mr. McGill was awarded $35,582.92 in damages after a trial on the merits.

Prior to the final disbursement of funds to Mr. McGill, all counsel agreed a

$3,000.00 attorney fee was owed to The Knoll Firm. However, there was no

specific discussion of the expenses owed between The Knoll Firm and Mr.

DeSalvo. The Knoll Firm was not provided a copy of Mr. McGill’s final

“SETTLEMEMENT DISBURSEMENT SHEET,” outlining the expenses

associated with the litigation and the disbursement of his final payment of

$4,810.77 until after the disbursement had been made. The final settlement

disbursement sheet signed by Mr. McGill only listed $149.50 as the amount owed

to “Don’s Pharmacy (Per Charlotte 6/19/14)” on behalf of Mr. McGill, this despite

documentation and two separate notices to Mr. DeSalvo that the amount owed to

Don’s Pharmasave was $1,159.59 for medication charged by Mr. McGill and

guaranteed by The Knoll Firm while acting as his counsel.

On or about December 15, 2014, The Knoll Firm was notified by the

pharmacist at Don’s Pharmasave that the outstanding pharmacy bill for Mr. McGill

guaranteed by The Knoll Firm had not been paid. That same day, The Knoll Firm

paid the outstanding balance of $1,159.59 with firm check number 16182. The

final invoice from Don’s Pharmasave reflected charges for Mr. McGill through

July 23, 2012. The notation at the top of the invoice shows “ERICK MCGILL,

ATY EDDIE KNOLL.”

On December 15, 2014, counsel with The Knoll Firm also sent

correspondence by both Facsimile and the U.S. Mail to Mr. DeSalvo demanding

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that he reimburse The Knoll Firm for the pharmaceutical expenses paid on behalf

of Mr. McGill. The Knoll Firm’s demand for reimbursement was based on the

outstanding balance of $1,159.59 submitted to Mr. DeSalvo prior to trial in its June

24, 2014 correspondence, as well as in the Medical Packet sent on August 22, 2012.

Mr. DeSalvo replied in correspondence dated December 18, 2014, via

Facsimile, that he was enclosing the bill from Don’s Pharmasave which was

presented at trial, and which only showed an outstanding balance of $149.50 for

the period from 9/14/12 to 10/23/12 and through January 31, 2013. The notation at

the top of the invoice shows, “MCGILL, ERICK VINCENT DESALVO ATY.”

Mr. DeSalvo refused to accept responsibility for the repayment of The Knoll

Firm’s guarantee of the Don’s Pharmasave invoice for Mr. McGill, and he

indicated that “he was not aware” of any additional outstanding bills from Don’s

Pharmasave, having only received bills from the pharmacy indicating that Mr.

McGill’s balance was only $149.50. 2 Mr. DeSalvo concluded by saying, “This

matter is between you and Don’s Pharmacy.”

The Knoll Firm responded to Mr. DeSalvo on December 18, 2014, by

Facsimile and the U.S. Mail, once again reiterating that the outstanding balance

owed to Don’s Pharmasave by The Knoll Firm was included in the June 24, 2014

list of expenses sent to Mr. DeSalvo as per his request, as well as in the original

August 22, 2012 Medical Packet. The letter reiterated the obligation Mr. DeSalvo

had undertaken when he assumed the representation of Mr. McGill to make “sure

any outstanding balances incurred by my representation of Mr. McGill were to be

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Mr. DeSalvo’s invoices from Don’s Pharmasave were introduced into evidence at trial
as Defendant’s Exhibit 1 in globo. Defendant’s Exhibit 2, also admitted into evidence at trial,
was the summary of medical expenses agreed to and admitted into evidence at Mr. McGill’s trial.
The summary shows an amount of $156.96 owed to “Don’s Pharmacy.”

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paid at the time of disbursement out of any funds received in his case.” Further,

The Knoll Firm claimed that Mr. DeSalvo was personally responsible for the

amount owed due to his failure to confirm with The Knoll Firm any outstanding

expenses for Mr. McGill prior to the distribution of his settlement funds, which

would have allowed The Knoll Firm to once again confirm the outstanding amount

of $1,159.59.

Mr. DeSalvo responded by filing an ethical complaint with the Office of

Disciplinary Counsel on December 18, 2014, wherein he attached a copy of the

correspondence received from The Knoll Firm. Mr. DeSalvo stated as his basis for

the complaint:

Today, I received a letter from Mr. Knoll (a copy of which is
enclosed), threatening to file a complaint with the Disciplinary Board
if I do not reimburse him for the $1,159.59 which he paid to Don’s
Pharmacy on December 15, 2014. This is his second threat to me. I
believe it is a violation of ethical rules to threaten legal action or
ethical complaints in an obvious attempt to collect money.

The Knoll Firm filed suit against Mr. DeSalvo on December 30, 2014,

seeking payment of the $1,159.59 paid to Don’s Pharmasave on behalf of Mr.

McGill. A bench trial was held on May 1, 2015. At the close of trial, the matter

was submitted on the record by both counsel and taken under advisement by the

trial court. On May 29, 2015, the trial court issued written reasons for ruling,

finding in favor of The Knoll Firm and ordering Mr. DeSalvo to pay $1,159.59

with interest from the date of judicial demand and assessing all costs against Mr.

DeSalvo. The judgment was signed on June 16, 2015, from which a timely appeal

was filed by Mr. DeSalvo.

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ASSIGNMENT OF ERROR

Mr. DeSalvo asserts the following error on appeal, “The Trial Court erred in

holding that Vincent J. DeSalvo was obligated to pay Don’s Pharmasave statement

to The Knoll Firm, for alleged medical expenses incurred by a former client of The

Knoll Firm, Erick McGill.”

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court in the recent case of Snider v. Louisiana

Medical Mutual Insurance Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323

reiterated the applicable standard of review and stated:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though
the appellate court may feel that its own evaluations and inferences
are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
This test dictates that a reviewing court must do more than simply
review the record for some evidence that may controvert the trial
court ruling. Rather, it requires a review of the entire record to
determine whether manifest error has occurred. Thus, the issue before
the court of appeal is not whether the trier of fact was right or wrong,
but whether the fact-finder’s conclusion was a reasonable one. Clay v.
Our Lady of Lourdes Regional Medical Center, 11-1797 (La.5/8/12),
93 So.3d 536, 543. The appellate court must not reweigh the evidence
or substitute its own factual findings because it would have decided
the case differently. Pinsonneault v. Merchants & Farmers Bank &
Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where the
factfinder’s determination is based on its decision to credit the
testimony of one of two or more witnesses, that finding can virtually
never be manifestly erroneous. This rule applies equally to the
evaluation of expert testimony, including the evaluation and
resolution of conflicts in expert testimony. Bellard v. American
Central Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654,672.

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Mr. DeSalvo’s Assignment of Error

Mr. DeSalvo argues that the trial court erred in finding that he owed the

$1,159.59 paid by The Knoll Firm to Don’s Pharmasave for the pharmaceutical

bills of their former client, Mr. McGill. Mr. DeSalvo contends that The Knoll

Firm was not required to pay Don’s Pharmasave because Don’s failed to perfect

the privilege allowed to providers of medical services to an injured person as set

forth in La.R.S. 9:47523 by not sending the necessary written notice as required by

La.R.S. 9:4753 4 to Mr. DeSalvo.

The trial court set forth its findings and conclusions in written reasons,

which we quote with approval, in pertinent part:

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Louisiana Revised Statutes 9:4752 provides:
A health care provider, hospital, or ambulance service that furnishes services or
supplies to any injured person shall have a privilege for the reasonable charges or
fees of such health care provider, hospital, or ambulance service on the net
amount payable to the injured person, his heirs, or legal representatives, out of the
total amount of any recovery or sum had, collected, or to be collected, whether by
judgment or by settlement or compromise, from another person on account of
such injuries, and on the net amount payable by any insurance company under any
contract providing for indemnity or compensation to the injured person. The
privilege of an attorney shall have precedence over the privilege created under
this Section.
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Louisiana Revised Statutes 9:4753 provides in pertinent part:

A. The privilege created by R.S. 9:4752 shall become effective if, prior to the
payment of insurance proceeds, or to the payment of any judgment, settlement, or
compromise on account of injuries, a written notice containing the name and
address of the injured person and the name and location of the interested health
care provider, hospital, or ambulance service is delivered by certified mail, return
receipt requested, or by facsimile transmission with proof of receipt of
transmission by the interested health care provider, hospital, or ambulance
services, or the attorney or agent for the interested health care provider, hospital,
or ambulance service, to the injured person, to his attorney, to the person alleged
to be liable to the injured person on account of the injuries sustained, to any
insurance carrier which has insured such person against liability, and to any
insurance company obligated by contract to pay indemnity or compensation to the
injured person. This privilege shall be effective against all persons given notice
according to the provisions of this Section and shall not be defeated nor rendered
ineffective as against any person that has been given the required notice because
of failure to give the notice to all those persons named in this Subsection.

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Additionally, this Court performed research on Louisiana State
Bar Association Rules of Professional Conduct and several cases on
the issues of negligent misrepresentation and/or misinformation.
Although DeSalvo indicates that the Knoll Law Firm committed some
kind of ethical violation, after extensive research, this Court does not
find any authority to substantiate this allegation. The Knoll Law Firm
had a duty to protect the interest of Don’s Pharmasave and did not
have to wait for Don’s to perfect a lien in order to pay what they
guaranteed. Settlement funds had already been disbursed when the
Knoll Law Firm had already paid the balance due to Don’s
Pharmasave.

In the contract to hire attorney executed by McGill on July 15,
2011[,] with the Knoll Law Firm, this contract provides that the client
authorizes the attorney to deduct and pay medical expenses of this
claim from their recovery directly to the person, firms or entity to
whom the expenses are due. Due to the fact that the Knoll Law Firm
no longer represented McGill, they had no authority to disburse
settlement funds. This was the duty of McGill’s attorney, Vincent
DeSalvo. At the time of settlement, Don’s Pharmasave was one third
party whose right to be protected and paid was authorized by McGill
in the contract with the Knoll Law Firm. The Knoll Law Firm was
responsible to Don’s Pharmasave and paid same, although the
ultimate responsibility was McGill’s. The Don’s Pharmasave bill
should have been paid in full from the funds received by McGill.
DeSalvo did protect the interest of the Knoll Law Firm by paying
Huey P. Long Hospital (although Notice of Lien had been filed) and
Dr. Darron McCann. (No such Lien). Clearly DeSalvo would have
protected the Knoll’s obligation to Don’s Pharmasave had DeSalvo
verified the total amount of charges incurred by McGill. Again, for
the third time, in the opinion of this Court, this is a mistake either by
DeSalvo or by Don’s Pharmasave, or both.

DeSalvo had received information from the Knoll Law Firm
that McGill had incurred charges with Don’s prior to his assuming
representation of McGill. In preparation for McGill’s Trial, the entire
bill was not obtained and not put into evidence. DeSalvo also had
confirmation as to the amount of the bill incurred by McGill during
their representation. DeSalvo had a duty to verify the account with
Don’s Pharmasave. This did not occur. DeSalvo is clearly
responsible to the Knoll Law Firm for their payment to Don’s
Pharmasave in the amount of $1,159.59.

It is undisputed that Mr. DeSalvo’s client, Mr. McGill, while he was

represented by The Knoll Firm, incurred charges for his medication at Don’s

Pharmasave between the dates of 07/15/11-07/10/12 in the amount of $1,159.59. It

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is also undisputed that Mr. McGill, while he was represented by Mr. DeSalvo,

incurred charges for his medication at Don’s Pharmasave between the dates of

9/14/12-10/23/12 in the amount of $149.50.

The documentation submitted into evidence at trial also demonstrated that

Don’s Pharmasave had two separate accounts in the name of Erick McGill, one

under the name of The Knoll Firm and one under the name of Mr. DeSalvo. Thus,

when Mr. DeSalvo’s office called to verify the outstanding pharmaceutical charges,

he claimed he was only given the charges listed under his name. Mr. DeSalvo

testified at trial that he was unaware of the outstanding charges under The Knoll

Firm account at Don’s Pharmasave.

However, a review of the record, which included the documents submitted

into evidence by The Knoll Firm, demonstrate that Mr. DeSalvo most certainly

should have been aware of the outstanding balance of $1,159.59 at Don’s

Pharmasave. Mr. DeSalvo was apprised of this outstanding balance both at the

beginning of his representation of Mr. McGill, when The Knoll Firm sent the entire

Medical Packet on August 22, 2012, and again just prior to trial on June 24, 2014,

when The Knoll Firm sent, at Mr. DeSalvo’s request, a detailed list of their

expenses associated with the representation of Mr. McGill.

We agree with the trial court that the failure of Don’s Pharmasave to perfect

a lien pursuant to La.R.S. 9:4752 and La.R.S. 9:4753 does not negate Mr.

DeSalvo’s duty to reimburse The Knoll Firm for their payment of Mr. McGill’s

pharmaceutical bill. Mr. DeSalvo paid the bill of Dr. Darron McCann in the

amount of $2,941.90, without the necessity of Dr. McCann’s filing a lien. As

previously discussed, the original correspondence from Mr. DeSalvo dated August

22, 2012, provided that Mr. DeSalvo agreed to protect the expenses of The Knoll

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Firm in the ongoing litigation, and stated, “Of course, I will protect any expenses

you have in this matter and will be more than happy to discuss an amicable

resolution of the fee with you[.]” The record is clear that the $1,159.59 owed to

Don’s Pharmasave by The Knoll Firm for Mr. McGill was part and parcel of the

expenses contemplated between the parties in the August 22, 2012 correspondence.

Moreover, on August 22, 2012, The Knoll Firm had filed a lien in the

Mortgage Records of Avoyelles Parish, to which was attached The Knoll Firm’s

July 15, 2011 contract to hire attorney, signed by Mr. McGill. The trial court

correctly found:

In the contract to hire attorney executed by McGill on July 15, 2011[,]
with the Knoll Law Firm, this contract provides that the client
authorizes the attorney to deduct and pay medical expenses of this
claim from their recovery directly to the person, firms or entity to
whom the expenses are due. Due to the fact that the Knoll Law Firm
no longer represented McGill, they had no authority to disburse
settlement funds. This was the duty of McGill’s attorney, Vincent
DeSalvo. At the time of settlement, Don’s Pharmasave was one third
party whose right to be protected and paid was authorized by McGill
in the contract with the Knoll Law Firm. The Knoll Law Firm was
responsible to Don’s Pharmasave and paid same, although the
ultimate responsibility was McGill’s.

The trial court had the primary responsibility to determine credibility. The

court obviously found Mr. Knoll’s testimony to be credible and fully corroborated

by the documentary evidence filed in support thereof. Therefore, after a thorough

review of the record, we affirm the June 16, 2015 judgment of the trial court in its

entirety, finding no manifest error in the trial court’s ruling.

CONCLUSION

Based on the foregoing, we affirm the June 16, 2015 final judgment of the

trial court in favor of The Knoll Law Firm LLC and against Vincent J. DeSalvo

ordering him to pay the sum of $1,159.59 with legal interest from the date of

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judicial demand and all costs. Costs of this appeal are assessed to Vincent J.

DeSalvo.

AFFIRMED.

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