Opinion
NO. 2016 CA 1340
06-14-2017
THE DOC'S CLINIC, APMC v. THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HEALTH & HOSPITALS, PAUL DAVENPORT, BEN BEARDEN, CHARLES CASTILLE, JOSEPH E. KOSPA & JERRY PHILLIPS
ALAN L. SCHWARTZBERG BATON ROUGE, LA AND ROY A. RASPANTI METAIRIE, LA ATTORNEYS FOR PLAINTIFF-APPELLANT THE DOC'S CLINIC, APMC JEFF LANDRY ATTORNEY GENERAL CHRISTOPHER N. WALTERS ASSISTANT ATTORNEY GENERAL BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS-APPELLEES THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS, PAUL DAVENPORT, BEN BEARDEN, CHARLES CASTILE, JOSEPH E. KOPSA AND JERRY PHILLIPS
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. C575390
Honorable R. Michael Caldwell, Judge ALAN L. SCHWARTZBERG
BATON ROUGE, LA
AND
ROY A. RASPANTI
METAIRIE, LA ATTORNEYS FOR
PLAINTIFF-APPELLANT
THE DOC'S CLINIC, APMC JEFF LANDRY
ATTORNEY GENERAL
CHRISTOPHER N. WALTERS
ASSISTANT ATTORNEY GENERAL
BATON ROUGE, LA ATTORNEYS FOR
DEFENDANTS-APPELLEES
THE STATE OF LOUISIANA,
THROUGH THE DEPARTMENT
OF HEALTH AND HOSPITALS, PAUL
DAVENPORT, BEN BEARDEN,
CHARLES CASTILE, JOSEPH E.
KOPSA AND JERRY PHILLIPS BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ. PETTIGREW, J.
This matter has a protracted history that need not be fully repeated herein. For the detailed factual and procedural background, see this court's two prior appeal decisions, Doc's Clinic, APMC v. State, Department of Health and Hospitals, 2007-0480 (La. App. 1 Cir. 11/2/07), 984 So.2d 711, writ denied, 2007-2302 (La. 2/15/08), 974 So.2d 665 (Doc's Clinic 1); and Doc's Clinic, APMC v. State, Department of Health and Hospitals, 2014-1178 (La. App. 1 Cir. 4/24/15), 2015 WL 1882570 (unpublished), writ denied, 2015-1210 (La. 9/25/15), 178 So.3d 567 (Doc's Clinic 2). This opinion will address only those facts relevant and necessary to understanding the matter on appeal. Further, for reasons explained below, we do not reach the merits of the single assignment of error urged by the plaintiff/appellant, The Doc's Clinic, APMC (Doc's Clinic), in this appeal -- whether the district court manifestly erred in sustaining a peremptory exception raising the objection of prescription in favor of defendants, the Department of Health and Hospitals and its employees (DHH), and against Doc's Clinic, dismissing Doc's Clinic's tort claims against defendants with prejudice - because we conclude that the appeal is taken from a judgment improperly designated as final, and dismiss the appeal accordingly.
BACKGROUND SUMMARY
Doc's Clinic, a professional medical corporation and a DHH licensed Medicaid provider since 1996, filed a Petition for Damages on February 17, 2009, naming as defendants, the Department of Health and Hospitals, and the following persons, individually, and in their official capacities in the Medicaid department of DHH: Paul Davenport, Ben Bearden, Charles Castille, Joseph E. Kopsa, and Jerry Phillips (DHH). Doc's Clinic alleged that as a result of a self-audit performed by it in response to a DHH request made to numerous Medicaid providers, DHH sought the voluntary reimbursement from Doc's Clinic for alleged billing discrepancies, with which Doc's Clinic disagreed. Doc's Clinic alleged that DHH performed subsequent investigations and notified the clinic in July and August 2000, of additional billing irregularities and of its intent to impose sanctions of recoupment and exclude Doc's Clinic and Dr. Kent Hickey, its office manager and physician/owner, from participating in the Medicaid program for a period of five years. However, following remand by this court, in 2003, the sanction of exclusion by DHH was reversed in the administrative proceeding; but ultimately, in 2004, DHH imposed sanctions on Doc's Clinic for recoupment.
As a result of those sanctions, Doc's Clinic alleged that it was compelled to terminate its business; and in the petition, it sought to recover lost profits that Doc's Clinic claims it could have realized but for DHH's wrongful and tortious actions in wrongfully excluding it from the Medicaid program.
Doc's Clinic 1
As fully detailed in Doc's Clinic 1, DHH sanctioned Doc's Clinic with the recoupment of approximately $261,065.33 that was allegedly overpaid by DHH to Doc's Clinic as a result of alleged billing discrepancies. This court, in that appeal, reversed the recoupment and ordered reimbursement to Doc's Clinic. Doc's Clinic 1, 984 So.3d at 733. As noted above, DHH's writ was denied by the supreme court on February 15, 2008.
Doc's Clinic 2
The second appeal, Doc's Clinic 2, did not involve DHH, but was of a judgment signed by the district court on August 1, 2013, sustaining an exception of prescription filed by a later named defendant, UNISYS, finding all claims against UNISYS had prescribed, and dismissing Doc's Clinic's claims against UNISYS with prejudice. This court affirmed that judgment. Doc's Clinic 2, 2015 WL 1882570 *4.
On April 17, 2013, Doc's Clinic had filed an amending petition for damages adding as a defendant, UNISYS Corporation, as DHH's fiscal intermediary, alleging that it negligently and/or intentionally implemented a fraudulent auditing system that did not comply with federal guidelines, that it failed to advise Doc's Clinic of the discrepancies in the electronic system (as compared to the manual HCFA 1500 forms), and that its electronic submission system was incompatible with Doc's Clinic's billing system. Doc's Clinic alleged that UNISYS was jointly and solidarily liable with the previously named defendants. --------
DHH'S EXCEPTION RAISING THE OBJECTION OF PRESCRIPTION
In March 2013, prior to UNISYS's filing of an exception raising the objection of prescription, DHH had filed a very similar exception that was heard and sustained by judgment dated April 30, 2013 (also prior to the judgment in favor of UNISYS, the appeal of which is referenced above). As explained below, it is that April 30, 2013 judgment by the district court that Doc's Clinic seeks to challenge in the appeal before us at this time. During the hearing on the exception, Doc's Clinic argued that it had a claim for breach of contract, which was subject to a ten-year prescriptive period; and in the alternative, should the court find the tort claims prescribed, such a finding would not affect the breach of contract claim. Although the breach of contract claim was not asserted in the original petition, Doc's Clinic represented at the hearing that it had asserted such a claim in an amending petition that it filed on April 17, 2013, prior to the hearing. The district court acknowledged Doc's Clinic's representation, but stated: "Mr. Scwartzberg (sic) [counsel for Doc's Clinic] informs me that they have, in fact, filed an amended petition. I haven't seen it yet. But to be on the safe side, I will allow ten days from this date in which for them (sic) to file such an amended petition to attempt to cure the defect." Based thereon, the April 30, 2013 judgment sustaining the exception of prescription as to Doc's Clinic's tort claims, also expressly stated that Doc's Clinic was afforded ten (10) days from April 22, 2013 (the date judgment was rendered in open court) in which to file an amended petition (to allege a breach of contract claim).
DOC'S CLINIC'S PRIOR APPEAL OF APRIL 30, 2013 JUDGMENT
On June 24, 2013, without any further proceedings having taken place at the district court level, Doc's Clinic filed a motion and order for appeal (of the April 30, 2013 judgment), that was granted by the district court on July 1, 2013. However, this court issued a Rule to Show Cause Order notifying the parties that the judgment appeared to be a partial judgment dismissing plaintiff's tort claims, but did not have the required designation of finality required by La. C.C.P. art. 1915(B). In that Rule to Show Cause Order, this court also noted that in consideration of the conditional language in the judgment, affording plaintiff ten (10) days in which to amend its petition, together with the fact that the record did not indicate whether an amended pleading had been filed by Doc's Clinic, the appeal also appeared to be premature. In Doc's Clinic's late-filed response brief to the rule, it acknowledged the judgment fell within the scope of La. C.C.P. art. 1915(B), and did not have the requisite designation of finality; however, it requested that if dismissal was this court's decision, that it be rendered "dismissed without prejudice" so that it could obtain the designation of finality from the district court and re-file a timely appeal. On March 13, 2014, this court rendered the following action on the rule to show cause: "APPEAL DISMISSED. Appellant may file a timely appeal of a final judgment."
POST-APPEAL DISMISSAL PLEADINGS
The record before us on the instant appeal contains an "Answer to Petition for Damages, Amended Petition for Damages and Amended and Supplemental Petition for Damages," filed on behalf of DHH on August 26, 2014, after the district court's judgment, sustaining the exception of prescription as to the tort claims, but allowing Doc's Clinic ten days in which to amend. In that answer, DHH denied Doc's Clinic's allegations regarding a breach of contract claim, stating that those allegations failed to assert a claim in contract.
The record before us also contains a "Motion for Designation that the April 30, 2013 Ruling is a Final Judgment Under La. C.C.P. Art. 1915(B)," filed by Doc's Clinic, evidently in response to this court's Rule to Show Cause action issued on December 10, 2013. The record also contains an "Amended Judgment on Defendants' Peremptory Exception of Prescription," signed March 25, 2015, referencing the aforementioned April 22, 2013 hearing on the exception, and containing the following order, identical to the order in the April 30, 2013 judgment:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants' exception as to prescription is SUSTAINED, and Plaintiff's tort claims herein are dismissed, with prejudice, at Plaintiff's cost. Plaintiff is afforded 10 days from April 22, 2013 in which to file and (sic) amended petition.Unlike the April 30, 2013 judgment, this March 25, 2015 amended judgment also contained the following notation: "This Judgment is a final judgment for the purpose of an immediate appeal, as it is the determination of this Court that there is no just reason for delay." On the same date that the amended judgment was signed, the district court also signed an Order, contained on the last page of Doc's Clinic's Motion for Designation that the April 30, 2013 Ruling is a Final Judgment Under La. C.C.P. Art. 1915(B), that provides:
Considering the foregoing motion,
IT IS ORDERED that the April 30, 2013 Judgment issued in the above-captioned matter be designated as a final Judgment for purposes of an immediate appeal. Further, it is the express determination of the Court that there is no just reason for delay.
Following the rendering of both the foregoing judgment and order, Doc's Clinic, on April 15, 2015, filed a Motion for Devolutive Appeal "from the Judgment signed on March 25, 2015 which designates as final the April 30, 2013 Judgment" that sustained DHH's exception of prescription, dismissing Doc's Clinic's tort claims with prejudice. That motion was granted by the district court on April 16, 2015.
On October 14, 2016, this court, again, issued a Rule To Show Cause Order why the appeal should not be dismissed, as being from a non-final judgment, given that the March 25, 2015 amended judgment continued to contain conditional language, ostensibly allowing Doc's Clinic ten days to file an amending petition. On February 6, 2017, this court deferred action on the rule to the panel to which the appeal was assigned. Thus, it is now before us.
DISCUSSION
Notwithstanding the issue of finality created by the conditional language in the original April 30, 2013 judgment (and inadvertently carried over into the amended judgment signed March 25, 2015), allowing the Doc's Clinic ten days in which to amend its original petition to allege a cause of action in breach of contract -- to which a longer prescription period applies -- we note that the record in this matter does contain such amendment. An amended petition, filed by Doc's Clinic prior to the hearing on the exception of prescription held on April 22, 2013, essentially renders the conditional language in both the judgments, allowing an additional ten days in which to file such a pleading, superfluous. The district court admitted at the hearing that it had not yet seen that amending petition. Yet, despite the existence of that pleading, asserting a cause of action in breach of contract, the district court signed an Order dated March 25, 2015, designating the April 30, 2013 judgment as a final judgment for purposes of appeal, pursuant to La. C.C.P. art. 1915(B), in addition stating, "[I]t is the express determination of the Court that there is no just reason for delay."
A judgment that only partially determines the merits of an action, in this case a judgment sustaining an exception of prescription as to only some of the claims alleged, is immediately appealable only if authorized under La. C.C.P. art. 1915. Pursuant to art. 1915(B)(1), such judgment shall not constitute a final judgment unless it is designated as final by the court after an express determination that there is no just reason for delay. Absent the required determination and designation, the trial court may revise the non-final partial judgment at any time before it renders a judgment adjudicating all claims at issue and the rights and liabilities of the parties. La. C.C.P. art. 1915(B)(2).
Applying these precepts and related jurisprudence, we determine we do not have appellate jurisdiction over this appeal of a partial judgment, notwithstanding the district court's designation to the contrary. The district court's ruling on April 30, 2013 sustained DHH's exception of prescription as to Doc's Clinic's tort claims, and dismissed those claims. However, that ruling did not dispose of the entire case as to Doc's Clinic, in light of the pending cause of action for breach of contract alleged by Doc's Clinic in its amended petition. As such, the partial judgment falls within the scope of La. C.C.P. art. 1915(B)(1), requiring a designation of finality after an express determination by the district court that there is no just reason for delay.
Here, the district court provided the designation, but provided no reasons in support thereof. When the propriety of the designation is not apparent, such as in this case where another cause of action asserted by the same party is pending without adjudication, and the district court has failed to provide an explanation or reasons therefor, we review the case de novo to determine whether the certification was proper. Duvic v. McCuen, 2011-0010 (La. App. 1 Cir. 6/10/11), 2011 WL 3423796 *3 (unpublished). The purpose of La. C.C.P. art. 1915 is to prevent multiple appeals and piecemeal litigation and to promote judicial efficiency and economy. R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122. In considering whether a partial judgment should be certified as final and appealable, relevant factors include: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court might be obligated to consider the same issue a second time; and (4) delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Id. The overriding inquiry, however, is whether there is no just reason for delay. Id. at 1122-23.
Our de novo review yields the conclusion that under the circumstances in this matter, there is at least one just reason for delay. Doc's Clinic's remaining claim, asserting a cause of action for breach of contract, has not yet been adjudicated. Moreover, DHH refutes that Doc's Clinic has alleged facts sufficient to state a cause of action for breach of contract; DHH claims there was no contract. If the district court, upon addressing the amended petition should agree with DHH and find no breach of contract claim exists, the entire exception of prescription would be granted on the same basis that the partial exception was granted, and it would dispose of the entire case; all of Doc's Clinic's claims would be dismissed. Although the district court allowed Doc's Clinic ten days within which to assert such a claim, that allowance was superfluous and non-effectual, as such claim had been pled, and was part of the record at the time of the district court's ruling on Doc's Clinic's tort claims. Thus, to permit an appeal of the partial judgment on the exception of prescription as to the tort claims, without a determination as to whether the pending claim asserting a breach of contract is valid, would encourage multiple appeals and piecemeal litigation between the same parties as to the same issue. We also conclude that an effective remedy is available to the parties once the district court determines whether a cause of action for breach of contract exists, and, if so, whether such remaining claim is prescribed. For these reasons, we find the district court's designation of finality was improper.
CONCLUSION
For the foregoing reasons, we conclude that the March 25, 2015 order, designating the April 30, 2013 judgment as final for purposes of appeal, improperly certified the judgment as final for purposes of appeal. Accordingly, the matter is remanded to the district court for consideration of Doc's Clinic's amending petition, and a final ruling on DHH's exception of prescription that addresses all claims raised by Doc's Clinic. The appeal before us is dismissed. Costs of this appeal are assessed to Doc's Clinic.