Opinion
2020 CA 0077
03-29-2021
IN RE: MEDICAL REVIEW PANEL GEORGE ABRAMS (D)
Thomas Abrams Clearwater, Florida Appellant In Proper Person Lorraine P. McInnis E. John Litchfield Carey B. Daste New Orleans, Louisiana Attorneys for Appellees, East Baton Rouge Medical Center, LLC d/b/a Ochsner Medical Center-Baton Rouge, Kristi Kelly, RN, Stacey O'Keefe, RN, Natalie Ruiz, RN, and Meagan White, RN Nadia De La Houssaye Lafayette, Louisiana Attorneys for Appellees, Ochsner Clinic Foundation, Ochsner Health System, Dr. James Atkinson, Dr. Odell Dean, Dr. Louis Jeansonne, Dr. David Lee, and Dr. Marianne Maumus
NOT DESIGNATED FOR PUBLICATION On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Trial Court No. 665084 Honorable William A. Morvant, Judge Presiding Thomas Abrams
Clearwater, Florida Appellant
In Proper Person Lorraine P. McInnis
E. John Litchfield
Carey B. Daste
New Orleans, Louisiana Attorneys for Appellees,
East Baton Rouge Medical Center,
LLC d/b/a Ochsner Medical Center-
Baton Rouge, Kristi Kelly, RN,
Stacey O'Keefe, RN, Natalie Ruiz,
RN, and Meagan White, RN Nadia De La Houssaye
Lafayette, Louisiana Attorneys for Appellees,
Ochsner Clinic Foundation, Ochsner
Health System, Dr. James Atkinson,
Dr. Odell Dean, Dr. Louis Jeansonne,
Dr. David Lee, and Dr. Marianne
Maumus BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ. PENZATO, J.
This is an appeal from a September 26, 2019 judgment granting a rule for contempt and dismissing with prejudice PCF Claim No. 2016-01057 as to East Baton Rouge Medical Center, LLC d/b/a Ochsner Medical Center-Baton Rouge ("Ochsner-BR"), and four of its nursing staff employees: Kristi Kelly, RN, Stacey O'Keefe, RN, Natalie Ruiz, RN, and Meagan White, RN (collectively "Ochsner nurses"). For the following reasons, we vacate the judgment of the trial court and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
On January 18, 2017, Ochsner-BR filed a petition to conduct discovery in relation to a medical malpractice claim instituted before a medical review panel by Thomas Abrams ("Abrams") on behalf of his deceased brother George F. Abrams. Thereafter, Ochsner-BR sought discovery from Abrams. On January 8, 2018, Ochsner-BR filed a motion to compel discovery responses, alleging therein that no responses had been received from Abrams. The matter came before the court on April 16, 2018, at which time the trial court granted Ochsner-BR's motion, and Abrams was ordered to respond to the outstanding discovery within twenty days of the execution of the judgment. Abrams was cast for all costs associated with the motion to compel, as well as attorney's fees in the amount of $700.00. Judgment was signed on May 10, 2018.
Abrams filed a medical review panel request on September 30, 2016 naming "Ochsner Health Care System" as defendant. He filed supplemental letters to clarify the Ochsner entities he intended to include as defendants. In addition to Ochsner-BR, Ochsner Clinic Foundation and Ochsner Health System were identified as defendants. Through a series of amended and supplemental claims, Abrams added as defendants a number of individual doctors, as well as the above-identified Ochsner-employed nurses.
At the time the underlying discovery was propounded, the Ochsner nurses were not yet named in Abrams' PCF claim.
Ochsner-BR's petition was initially assigned 19th Judicial District Court docket number 002471. The motion to compel was assigned 19th Judicial District Court docket number 665084.
Abrams did not appear at the April 16, 2018 hearing. On April 3, 2018, counsel for Ochsner-BR filed an affidavit of service into the record indicating that service had been made on Abrams by certified mail at his address in Clearwater, Florida, on February 10, 2018.
On July 11, 2018, in opposition to a motion to compel filed by Ochsner Clinic Foundation and Ochsner Health System and set for hearing on July 2, 2018, Abrams filed a motion to recuse the trial judge. He filed additional motions for recusal on January 2, 2019, and May 10, 2019, in opposition to a motion for contempt filed by Ochsner Clinic Foundation and Ochsner Health System and set for hearing on May 13, 2019. The motions to recuse were not accompanied by a proposed order requesting that they be set for hearing, as is required by Rule 9.8(a) of the Rules for Louisiana District Courts. In the event that a proposed order is not presented to the court with the motion, Rule 9.8(a) provides that the court may strike the exception or motion, may set the matter for hearing on its own motion, or take other action as the court deems appropriate. In this case, the record on appeal does not indicate that any action was taken in regard to the motions to recuse. Regardless of the merits of Abrams' motions, the trial court is required to take some responsive action on the motions to recuse prior to proceeding further with substantive issues in the case. In re Succession of Keen, 2006-0602 (La. App. 1 Cir. 3/23/07), 2007 WL 866208 *4 (unpublished), writ denied, 2007-1656 (La. 10/26/07), 966 So. 2d 584.
Abrams filed an application for supervisory writs in connection with the trial court's April 16, 2018 ruling. On May 10, 2019, this court denied Abrams' writ, noting that the trial court did not abuse its discretion in granting Ochsner-BR's motion to compel and in ordering Abrams to pay costs and attorney fees. In re: Medical Review Panel George F. Abrams, 2018 CW 1624 (La. App. 1 Cir. 5/10/19).
On August 6, 2019, Ochsner-BR and the Ochsner nurses filed a rule for contempt, alleging that Abrams failed to comply with the May 10, 2018 judgment. The matter was set for hearing on September 9, 2019. According to the service instructions, Abrams was to be served "Via Louisiana Long Arm Statute."
Also set for hearing on September 9, 2019 was a motion to compel Abrams to completely respond to outstanding discovery filed on behalf of five individually named doctors. On September 9, 2019, in opposition to the matters set for hearing on September 9, 2019, Abrams filed "CLAIMANT'S OBJECTIONS TO PROVIDERS' PETITIONS; MOTION TO REMAND; PETITION FOR WRIT OF MANDAMUS ALLOWING MEDICAL-REVIEW TO BEGIN[;] PETITION FOR ANNULMENT OF ALL JUDGMENTS FOR VICES OF FORM; and PETITION FOR DECLARATORY JUDGMENT ON CONSTITUTIONALITY OF MMA".
The record on appeal does not contain evidence that Abrams was served with this motion.
Abrams did not appear for the September 9, 2019 hearing; however, the morning of the hearing, counsel for Ochsner-BR and the Ochsner nurses filed an affidavit of service into the record indicating that service had been made on Abrams via Federal Express at his address in Clearwater, Florida, on August 26, 2019. The trial court granted Ochsner-BR's and the Ochsner nurses' rule for contempt, and dismissed Abrams' claims against Ochsner-BR and the Ochsner nurses as well as any other employees of Ochsner-BR that may have been or should have been included. The trial court also granted the costs of filing the motion for contempt and attorney's fees in the amount of $750.00.
The trial court also granted the motion to compel in open court. A judgment in accordance with the trial court's oral ruling was signed on September 26, 2019.
On September 16, 2019, Abrams filed a notice of appeal/intent to apply for supervisory writs to review the "judgment(s) made in open court on September 9, 2019." On September 26, 2019, the trial court signed a judgment on the rule for contempt "DISMISSING WITH PREJUDICE PCF CLAIM NO. 2016-01057 as to [Ochsner-BR and the Ochsner nurses], and enjoining Abrams from naming any Ochsner-BR employees as a future defendant in PCF Claim No. 2016-01057." The judgment further ordered that Abrams be cast for all costs borne by Ochsner-BR in bringing the rule for contempt, as well as attorney's fees in the amount of $750.00.
On December 2, 2019, this court denied Abrams' writ, adding the following:
The September 26, 2019 judgment finding [Abrams] in contempt and dismissing with prejudice his claim as to certain defendants appears to be a final appealable judgment.... An appeal of a final judgment is taken by filing a motion for appeal in the district court...within the delays set out in La. Code Civ. P. art. 2087. The deadline for filing such a motion with the district court herein appears to be December 9, 2019.In re: Medical Review Panel George F. Abrams, 2019 CW 1290 (La. App. 1 Cir. 12/2/19). Thereafter, on December 9, 2019, Abrams filed a motion for appeal of the judgment "rendered in open court ... on September 9, 2019, finding [him] in contempt and dismissing with prejudice his claim as to certain defendants."
We note that in his motion for appeal, Abrams, a pro se litigant, listed the date of the trial court's ruling rather than the date of the judgment on the merits. However, he describes the judgment sought to be appealed in the language used by this court in reference to the September 26, 2019 judgment. In liberally construing Abrams' pro se filings, and because appeals are favored in law, must be maintained wherever possible, and should not be dismissed on mere technicalities, we interpret his appeal as being from the September 26, 2019 judgment granting the rule for contempt. See Smith v. Dugas, 2019-0852 (La. App. 1 Cir. 2/26/20), 2020 WL 913673 *2 (unpublished); Lewis v. Louisiana State Judicial Review Bd., 2018-0204 (La. App. 1 Cir. 11/2/18), 264 So. 3d 1208, 1211-12, writ denied, 2018-1856 (La. 1/28/19), 263 So. 3d 427.
LAW AND DISCUSSION
Before reaching the merits of this appeal, we must address a procedural error that we have discovered in the record of the proceedings below. As noted above, service of the rule for contempt was purportedly effected via Louisiana's long-arm statute, La. R.S. 13:3201, et seq. Louisiana Revised Statutes 13:3204 sets forth the mandatory manner in which service of process must be made under the long-arm statute and provides, in pertinent part:
A. In a suit under R.S. 13:3201, a certified copy of the citation or the notice in a divorce under Civil Code Article 102 and of the petition or a certified copy of a contradictory motion, rule to show cause, or other pleading filed by the plaintiff in a summary proceeding under Code of Civil Procedure Article 2592 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.Pursuant to La. R.S. 13:3205, "no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding ... until thirty days after the filing in the record of the affidavit of the individual" who utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery. (Emphasis added.) Personal jurisdiction over non-residents requires strict compliance with the long arm statute's procedural requirements. Clay v. Clay, 389 So. 2d 31, 37 (La. 1979). A judgment obtained without strict compliance with La. R.S. 13:3205 is an absolute nullity. Fisher v. Majestic Trucking, Inc., 2009-1398 (La. App. 4 Cir. 3/17/10), 35 So. 3d 384, 387; Moody v. Stevenson, 43,144 (La. App. 2 Cir. 3/26/08), 980 So. 2d 196, 199.
In this case, the affidavit of service of process on Abrams was filed on the morning of the September 9, 2019 hearing. This late filing fails to meet the requirement of La. R.S. 13:3205 of filing of the affidavit of service 30 days prior to the hearing. Strict compliance dictates that the resulting judgment is an absolute nullity. Fisher, 35 So. 3d at 387-88; Moody, 980 So. 2d at 199.
CONCLUSION
For the foregoing reasons, we vacate the September 26, 2019 judgment of the trial court granting the rule for contempt and remand the matter for further proceedings. Costs are assessed to East Baton Rouge Medical Center, LLC d/b/a Ochsner Medical Center-Baton Rouge, and its nursing staff employees Kristi Kelly, RN, Stacey O'Keefe, RN, Natalie Ruiz, RN, and Meagan White, RN.
VACATED AND REMANDED. HOLDRIDGE, J., concurring.
I agree with the majority's decision to vacate the judgment of the trial court granting the rule for contempt, but I disagree with its rationale. I believe that Mr. Abrams' opposition filing constitutes a waiver of any objection as to the mover's failure to file the affidavit of service in the record thirty days before the hearing. Therefore, I would not find that the trial court judgment is an absolute nullity because the affidavit of service was not filed into the record thirty days before the hearing as required by La. R.S. 13:3205.
A party may waive his right to object to the insufficiency or lack of citation and service if he submits to the jurisdiction of the court by making an appearance of record in the proceeding pending against him. In such a case, the judgment rendered by the court would be valid. Although the waiver through a general appearance has been eliminated from our law by the repeal of La. C.C.P. art. 7, a party can nevertheless waive an objection to the jurisdiction by an appearance of record. Sam v. Feast, 2000-1163 (La. App. 1 Cir. 3/28/01), 802 So.2d 680, 683. An appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. La. C.C.P. art. 1671, 1997 Comment; Wolfe v. Leland, 2015-1556 (La. App. 1 Cir. 4/15/16), 193 So.3d 236, 238; Spiezio v. State Licensing Board for Contractors, 2012-1562 (La. App. 1 Cir. 3/22/13), 2013 WL 1189373 at *4 (unpublished), writ denied, 2013-0912 (La. 5/31/13), 118 So.3d 399; Diamond v. Progressive Security Insurance Company, 2005-0820 (La. App. 1 Cir. 3/24/06), 934 So.2d 739, 744-45; Sam, 802 So.2d at 683. In this case, Mr. Abrams filed an opposition to the matters set for hearing on September 9, 2019, entitled, "CLAIMANT'S OBJECTIONS TO PROVIDERS' PETITIONS; MOTION TO REMAND; PETITION FOR WRIT OF MANDAMUS ALLOWING MEDICAL-REVIEW TO BEGIN[;] PETITION FOR ANNULMENT OF ALL JUDGMENTS FOR VICES OF FORM; and PETITION FOR DECLARATORY JUDGMENT ON CONSTITUTIONALITY OF MMA." This filing is an appearance of record, waives any objection to the filing of the service affidavit under La. R.S. 13:3205, and allows the judgment rendered therein to be valid.
In the cases the majority cites, Clay v. Clay, 389 So.2d 31, 37 (La. 1979), Fisher v. Majestic Trucking, Inc., 2009-1398 (La. App. 4 Cir. 3/17/10), 35 So.3d 384, 387, and Moody v. Stevenson, 43,144 (La. App. 2 Cir 3/26/08), 980 So.2d 196, 199, the defendant had not filed anything into the record that could constitute a waiver of the service requirement.
As to the merits of the appeal, I disagree with imposing the sanction of dismissal of the case with prejudice as to Ochsner-BR and Ochsner nurses as well as any other employees of Ochsner that may have been or could have been included. Louisiana Code of Civil Procedure article 1471 provides in subsection (A)(4) that in lieu of any of the sanctions of 1471 "or in addition thereto" an order of contempt may be issued for the failure to obey an order by the trial court compelling discovery. While the defendants' motion is titled a "Rule for Contempt," it appears from the memorandum in support that the defendants are asking for both contempt and sanctions under article 1471. While the trial court may have acted correctly in finding the plaintiff in contempt, the court was not correct in imposing the sanction of dismissal with prejudice of all claims against Ochsner-BR, Ochsner nurses, and any other employees of Ochsner that may have been or could have been included. The Supreme Court in Horton v. McCary, 635 So.2d 199, 203 (La. 1994) acknowledged that "dismissal ... [is a] draconian penalt[y] which should be applied only in extreme circumstances." The Supreme Court further stated in Horton that "those sanctions are generally reserved for the most culpable conduct." Id. Courts have also held that the ultimate sanction (dismissal with prejudice) should not be imposed unless the record shows that the plaintiff was clearly aware that noncompliance would result in the sanction of dismissal. See Medical Review Proceedings of Peter v. Tour Infirmary, 2005-0317 (La. App. 4 Cir. 7/6/05), 913 So.2d 131, 134, writ denied, 2005-2077 (La. 2/10/06), 924 So.2d 170; Duffy v. Pendleton Memorial Methodist Hospital, 2010-0660 (La. App. 4 Cir. 12/8/10), 53 So.3d 636, 639; Rodriquez-Zaldivar v. Leggett, 2018-0410 (La. App. 4 Cir. 1/23/19), 2019 WL 302223, at *4 (unpublished) (which held that evidence must be introduced at the hearing and "[a]rguments of counsel in briefs or memoranda are not evidence.")
This case is only a discovery request by the possible defendants in a future malpractice case. There is no evidence in the record wherein the plaintiff was warned by the trial court that if he did not comply with the discovery order that his future malpractice case would be dismissed with prejudice in accordance with Louisiana Code of Civil Procedure article 1471(A)(3). I would hold that in the case of a self-represented litigant, it is essential that the litigant be informed that a failure to comply with a discovery order may be grounds for dismissing his lawsuit before that sanction is applied. In all of the cited cases, the plaintiff and his attorney were both notified that the failure to comply with a discovery order could result in the dismissal of the case. See Quinn v. Palmer, 2019-1009 (La. App. 4 Cir. 3/25/20), 294 So.3d 541, 546, writ denied, 2020-00964 (La. 10/20/20), 303 So.3d 310 (wherein the trial court provided notice signed by all parties and counsel that if a party failed to comply with a pre-trial order, "'the court, on its own motion, or on the motion of a party, after hearing, may make such orders as are just, including orders provided in [La. C.C.P.] art. 1471 (2), (3), and (4).'") Furthermore, I would hold that in any event, the less drastic sanction of barring Mr. Abrams from proceeding any further with his medical malpractice suit against Ochsner-BR and its nurses and employees until he complied with all the discovery requests would be the correct sanction in light of the fact that the plaintiff was self-represented. See La. C.C.P. art. 1471(A)(3) ("[a]n order ... staying further proceedings until the order is obeyed"); Carr v. GEICO Casualty Company, 2019-0310 (La. App. 4 Cir. 10/16/19), ___ So.3d ___, ___. Furthermore, I am concerned as to whether the trial court has taken any action on the motions to recuse filed in this matter prior to its ruling on the motion for contempt and sanctions.
See footnote 5 in the majority opinion. --------
Therefore, I agree with the majority's decision to vacate the trial court's September 26, 2019 judgment granting the rule for contempt and dismissing Mr. Abrams' claims against Ochsner-BR and the Ochsner nurses as well as any other employees of Ochsner-BR that may have been or should have been included.