State of Louisiana In The Interest of Lavergne Martin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0901 STATE OF LOUISIANA IN THE INTEREST OF LAVERGNE MARTIN 1 Ik Judgment Rendered December 22 2010 APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF POINTE COUPEE STATE OF LOUISIANA DOCKET NUMBER 40 DIVISION D 057 THE HONORABLE WILLIAM C DUPONT JUDGE J Lane Ewing Jr Intervention Attorneys for Plaintiff Pointe Appellee Coupee Healthcare New Roads Louisiana C L Harry L Shoemaker III Baton Rouge Louisiana Attorney for Defendant inIntervention AppellantRoland Martin Jr John Wayne Jewell BEFORE WHIPPLE McDONALD AND McCLENDON JJ I McDONALD I On June 12 2006 the Office of Elderly Affairs Elderly Protective Services for the State of Louisiana filed a petition for emergency protective services for Lavergne Martin an elderly woman who lived with her son Roland Martin Jr The petition asserted that Mrs Martin was 81 years old that she received care from Pointe Coupee Home Health and that she had been diagnosed with high blood pressure pneumonia dehydration and Alzheimer disease s further asserted that Mrs The petition Martin had essentially been neglected that her physician Dr lames Picard had recommended nursing home placement for Mrs Martin and that Mrs Martin was at immediate risk of substantial harm or deterioration from caregiver neglect An affidavit by Tomiki Williams an investigator for the Adult Protective Services Division of the Office of Elderly Affairs asserted that the office had received a complaint of caregiver neglect of Mrs Martin that Mrs Martin lacked the capacity to consent and was at immediate risk of substantial harm or deterioration from abuse and neglect and that Mrs Martin did not have any caregivers that were financially physically or emotionally able to care for her On June 15 2006 the district court ordered that Mrs Martin be removed from her home and placed in Pointe Coupee Healthcare L nursing home On C that date two sheriffs deputies and two employees from Elderly Protective Services along with two employees from Pointe Coupee Healthcare arrived at the Martin residence where Mr Martin was served with the order by the sheriff s deputies Ms Connie Pourciau a social worker admissions coordinator for Pointe Coupee Healthcare sat down and reviewed the contract for admission with Mr Martin which he signed He also signed a note which obligated him to pay for the nursing home care K On July 31 2006 Mr Martin signed a petition for intervention asserting his right to participate in the proceedings including a hearing on the complaint scheduled for hearing in court on August 24 2006 After the hearing the district court signed a judgment decreeing that the emergency protective order was granted for a period not to exceed 180 days Thereafter on November 27 2006 Pointe Coupee Healthcare filed a petition for intervention asserting that Mrs Martin had resided in its nursing home since June 15 2006 and that Pointe Coupee Healthcare had not received payments for services due through November 30 2006 amounting to 12 56 985 Pointe Coupee Healthcare asserted that Mrs Martin and Mr Martin were responsible for the bill that the suit was on an open account and that defendants were liable for reasonable attorney fees for failure to pay within thirty days of written demand Pointe Coupee Healthcare prayed for judgment in its favor against Mrs Martin and Mr Martin Michael Parks the attorney appointed to represent Mrs Martin filed a motion and order to set attorney fees for services provided in his representation of Mrs Martin Thereafter the district court set attorney fees for Mr Parks at 00 500 3 to be cast as costs of court and to be paid by Mr Martin After a hearing on December 21 2006 the district court rendered judgment decreeing that pursuant to the pleadings stipulations testimony and law presented the emergency protective order granted on August 24 2006 would remain in effect for the remainder of the 180day period and allowing Mr Martin to remove Mrs Martin from Pointe Coupee Health Care and return her to his home provided that Mr Martin provide sitters for Mrs Martin while he worked and any other time he was away from home Further the judgment decreed that Elderly Protective Services would make periodic visits to the Martin home either scheduled or unscheduled during the remainder of the protective order that an 3 appointment would be made with her physician when she returned home and that home health care would be reestablished Further the court decreed that if the requirements of the judgment were fulfilled and there were no further allegations of abuse or neglect the protective order would expire without need for renewal If however the requirements of the judgment were not fulfilled and there were further allegations of abuse or neglect the protective order would remain in effect and Mrs Martin could be removed from the home or other action taken Mrs Martin died on January 31 2007 On August 21 2009 Mr Martin tiled an answer to Pointe Coupee Healthcare petition for intervention asserting s that employees of Point Coupee Healthcare came to his home in force to take away his mother and represented to him that he was only signing forms authorizing that she be admitted into their nursing home He asserted that he was under duress when he signed papers and that no one told him that he was signing documents that made him personally liable for any debt to Pointe Coupee Healthcare Martin asserted that the contracts were nullities due to material Mr error misrepresentation and duress He further asserted that the bills were excessive for the services rendered and he raised the affirmative defenses of payment error mistake misrepresentation and duress extinguishment of obligation estoppel excessive billing for services rendered nullity and failure of consideration Mr Martin asked for judgment in his favor rejecting the demands of Pointe Coupee Healthcare The matter went to trial on September 8 2009 After the trial the district court rendered judgment in favor of Pointe Coupee Healthcare and against Mr Martin in the amount of 24 for the debt and finance charges 8 in 36 471 2 1 157 attorney fees 697 in court costs and interest from the date ofjudicial demand 40 Mr Martin filed a motion for new trial which was denied Mr Martin appealed the judgment against him and the denial of his motion for new trial 4 In assignments of error numbers one and two Mr Martin asserts that the district court erred in refusing to nullify the admission agreement and the handwritten agreement for lack of free and voluntary consent on his part that the contracts were vitiated by error fraud or duress and that the district court erred in failing to invalidate or nullify the two agreements because of the violation of 42 USC ii A 5 c 1396r by the representative of Pointe Coupee Healthcare Ms Pourciau who required a third party guarantee of payment as a condition of admission Ms Pourciau testified at trial that Mr Martin fully understood what he was signing that there were no promises threats or coercion that she told Mr Martin that his mother would be admitted into the nursing home regardless of whether he signed the agreement and that he chose to sign the agreement and the note because it gave him more authority over the care of his mother Based upon the evidence the trial court found that Mr Martin freely signed the admission agreement and promissory note We find no manifest error in this finding by the district court In assignment of error number three Mr Martin asserts that the district court erred in failing to apply the principles of failure of cause or consideration and failure to mitigate damages because of Pointe Coupee Healthcare failure to s followup and make a full and proper application for Medicaid coverage for Mrs Martin to pay her expenses at the nursing home Ms Pourciau testified that she told Mr Martin that she would apply for Medicaid benefits for Mrs Martin but she could not guarantee that she would be eligible for benefits She further testified that she applied for the Medicaid benefits for Mrs Martin but the application was withdrawn by Mr Martin Mr Martin testified at trial that he was not under the impression that Medicaid was definitely going to cover Mrs Martin nursing home care Therefore we cannot say that the s 5 district court erred in finding that Pointe Coupee Healthcare did not fail to mitigate damages Regarding Mr Martin assignments of error number four five and six Mr s Martin asserts that the district court committed manifest error in the awarding of damages to Pointe Coupee Healthcare for the debt and Finance charges as well as attorney fees court costs and interest from the date of judicial demand He also asserts that the attorney fees award is too high We find that the evidence in the record supports the amounts awarded to Pointe Coupee I by the district court for the debt and finance charges the Iealthcare interest and attorney fees Moreover La R 9 2781 provides for attorney fees on S a suit oil an open account Therefore for the foregoing reasons we affirm the district court judgment Costs of this appeal are assessed against Mr Martin AFFIRMED 6
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