Opinion
NO. 2012 CA 1695R
09-12-2014
MIDTOWN MEDICAL, LLC v. THE DEPARTMENT OF HEALTH AND HOSPITALS
ELLIE T. SCHILLING NEW ORLEANS, LA ATTORNEY FOR PLAINTIFF-APPELLAIMT MIDTOWN MEDICAL, LLC NEAL R. ELLIOTT, JR. BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS
NOT DESIGNATED FOR PUBLICATION
On Remand from the Supreme Court of Louisiana on Writ of Certiorari on Appeal from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 608,748
Honorable Wilson Fields, Judge
ELLIE T. SCHILLING
NEW ORLEANS, LA
ATTORNEY FOR
PLAINTIFF-APPELLAIMT
MIDTOWN MEDICAL, LLC
NEAL R. ELLIOTT, JR.
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
LOUISIANA DEPARTMENT OF HEALTH
AND HOSPITALS
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ.
PETTIGREW, J.
This matter was previously before us, at which time we reversed the judgment of the district court and found that the Department of Health and Hospitals (DHH) lacked the statutory authority to impose the fines at issue against Midtown Medical, LLC (Midtown). The Louisiana Supreme Court reversed our decision, holding that DHH did have the power to assess the fines at issue against Midtown. The Supreme Court remanded the matter back to this court "for consideration of Midtown's unaddressed assignment of error."
BRIEF SUMMARY OF FACTUAL AND PROCEDURAL HISTORY
In January 2011, DHH imposed two separate civil fines of $600.00 each against Midtown after conducting a health survey at its abortion facility and finding it had "deficient practices" in violation of Louisiana Administrative Code (LAC) tit. 48, pt. 1, §4405 and §4423. Midtown challenged the assessment through informal dispute resolution, administrative appeal, and a petition for judicial review before the Nineteenth Judicial District Court. In each of these challenges, Midtown asserted that DHH lacked the authority to impose the fines, and also that its decision to do so was arbitrary, capricious, and an abuse of discretion. Each of these challenges was unsuccessful; and a judgment was rendered on June 12, 2012, and signed by the trial court on July 22, 2012, affirming the decision of the administrative law judge finding that DHH's assessment of Midtown's fines was valid.
Midtown appealed that judgment to this court. In that appeal, Midtown asserted the following sole assignment of error and the sole issue presented for review:
ASSIGNMENT OF ERROR
I. The decision by the Division of Administrative Law affirming the civil fines imposed on Midtown Medical, LLC by the Department of Health and Hospitals is contrary to law because the Department of Health and Hospitals does not have the regulatory authority to issue a civil fine to an outpatient abortion facility.
ISSUE PRESENTED FOR REVIEW
I. Whether the Department of Health and Hospitals has the authority to issue a civil fine to an outpatient abortion facility when the regulation that implements the statute, and was
used to impose the fines, lists certain enumerated facilities which do not include an outpatient abortion facility?
On December 5, 2013, this court rendered its decision, reversing the judgment of the trial court, finding merit in Midtown's claim that DHH lacked the authority, regulatorily, statutorily, or otherwise, to inflict the fines at issue. See Midtown Medical, LLC v. Department of Health and Hospitals, 2012-1695 (La. App. 1 Or. 12/5/13), 136 So.3d 850. The Supreme Court subsequently reversed that decision in a per curiam decision, Midtown Medical, LLC v. Department of Health and Hospitals, 2014-0005 (La. 3/14/14), 135 So.3d 594, finding that DHH did have the power to impose the fines at issue. As noted earlier, the Court remanded the matter back to this court "for consideration of Midtown's unaddressed assignment of error." Id.
Although we may not agree with the legal analysis and alternate conclusion of the Louisiana Supreme Court, we are constrained to follow same.
Uniform Rules of Louisiana Courts of Appeal, Rule 1-3, provides that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." Nicholas v. Allstate Insurance Company, 992522 (La. 8/31/00), 765 So.2d 1017, 1023. Additionally, Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4, provides that the appellant's brief shall set forth a specification or assignment of alleged errors relied upon, and when an assignment of error is set forth, but not briefed, it is considered abandoned. J. Reed Constructors, Inc. v. Roofing Supply Group, 2012-2136 (La. App. 1 Cir. 11/1/13), 135 So.3d 752, 754.
Because Midtown did not assign error to any other finding by the administrative law judge or the trial court, the only issue before this court on appeal was that of whether DHH had the authority to impose the fines at issue. This court addressed that issue; the Supreme Court has reversed that finding, and there are no remaining "unaddressed" assignments of error for this court to review.
CONCLUSION
Accordingly, for the reasons above, we affirm the decision by the Nineteenth Judicial District Court, which affirmed the decision and order of the Division of Administrative Law. All costs are assessed to Midtown Medical, LLC.?
AFFIRMED.
KUHN, J., dissenting.
Under the clear language of LAC, title 50, pt. I, §5501, the Department of Health and Hospitals (DHH) lacks statutory authority to impose civil fines upon Midtown Medical, LLC.