Opinion
NO. 2017 CA 1763
02-22-2019
ROBERT L. ROYER v. OUR LADY OF THE LAKE HOSPITAL, INC., OUR LADY OF THE LAKE PHYSICIAN GROUP, LLC, KEITH BRIAN HODGE, M.D., LURA LABORDE WIGHT, M.D., AND LOUISIANA CARDIOVASCULAR SPECIALISTS, LLC D/B/A LOUISIANA CARDIOLOGY ASSOCIATES
Robert Layne Royer Baton Rouge, Louisiana Counsel Pro Se for Plaintiff/Appellant, Robert L. Royer Douglas K. Williams Druit G. Gremillion, Jr. Baton Rouge, Louisiana Counsel for Defendant/Appellee Our Lady of the Lake Hospital, Inc. Ann M. Halphen Amy C. Lambert L. Adam Thames Ne'Shira Millender Baton Rouge, Louisiana Counsel for Defendants/Appellees Dr. Keith Brian Hodge, Dr. Lura LaBorde Wight, and Professional Emergency Physicians, LLC
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. C610287 The Honorable Todd Hernandez, Judge Presiding Robert Layne Royer
Baton Rouge, Louisiana Counsel Pro Se for Plaintiff/
Appellant, Robert L. Royer Douglas K. Williams
Druit G. Gremillion, Jr.
Baton Rouge, Louisiana Counsel for Defendant/Appellee
Our Lady of the Lake Hospital, Inc. Ann M. Halphen
Amy C. Lambert
L. Adam Thames
Ne'Shira Millender
Baton Rouge, Louisiana Counsel for Defendants/Appellees
Dr. Keith Brian Hodge, Dr. Lura
LaBorde Wight, and Professional
Emergency Physicians, LLC BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. THERIOT, J.
Robert L. Royer appeals the Nineteenth Judicial Court's judgment granting Our Lady of the Lake Hospital, Inc.'s motion to tax costs. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
These facts are taken in part from a prior appeal - Royer v. Our Lady of the Lake Hosp. Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587.
The instant dispute derives from Robert L. Royer's decision to seek heart care treatment at Our Lady of the Lake Hospital, Inc. ("OLOL"). On March 16, 2011, Royer began experiencing symptoms of an apparent heart attack, including chest pain, shortness of breath, and weakness. Royer first presented with these symptoms to the office of his primary care physician. Upon his primary care physician's advice and encouragement, Royer drove to OLOL's emergency room for further treatment. Royer arrived at OLOL between 1:30 and 1:45 p.m.
On March 16, 2012, Royer filed a "Petition for Fraud, Rescission of Contract, Reimbursement of Medical Expenses, Damages and Attorney Fees for Fraudulent Advertisements and Other Conduct," against OLOL, Our Lady of the Lake Physician Group, LLC ("OLOLPG"), Keith Brian Hodge, M.D. ("Dr. Hodge"), Lura LaBorde Wight, M.D. ("Dr. Wight"), and Louisiana Cardiovascular Specialists, LLC ("LCS"). Through amended petitions filed on January 29, 2013, and November 19, 2013, Royer added Professional Emergency Physician Associates, LLC ("PEPA") and Shammi R. Kataria, M.D. ("Dr. Kataria") as named defendants. Royer subsequently voluntarily dismissed LCS and OLOLPG from the suit.
The record does not contain a motion to dismiss OLOLPG, but OLOLPG was not named as a defendant in either his first or second amended petition for damages.
Through his original and amended petitions, Royer presented fraud claims against OLOL, OLOLPG, Dr. Hodge, Dr. Wight, LCS, PEPA, and Dr. Kataria (collectively "defendants"). Royer alleged the defendants falsely advertised and misrepresented the nature of OLOL's medical services. Essentially, Royer argued that the defendants had misrepresented OLOL's staff to be "completely committed to medical excellence" and that OLOL's Heart Center had been advertised as the highest rated in south Louisiana for the treatment of chest pain.
On September 26, 2012, the trial court signed a consent judgment dismissing Royer's medical malpractice claims against Dr. Hodge and Dr. Wight as premature until reviewed by a medical panel, but maintaining Royer's fraud claims against Dr. Hodge and Dr. Wight in the trial court for further proceedings. Similarly, on June 11, 2013, the trial court signed a consent judgment which dismissed as premature Royer's medical malpractice claims against OLOL and OLOLPG, but maintained Royer's fraud claims against OLOL and OLOLPG for further proceedings.
On November 27, 2012, Dr. Hodge and Dr. Wight jointly submitted a motion for summary judgment, seeking dismissal of Royer's remaining fraud claims against them. On September 12, 2013, the trial court issued and signed summary judgment in favor of Dr. Hodge and Dr. Wight and dismissed Royer's claims against them with prejudice. The trial court reasoned the uncontroverted evidence on record demonstrated that Dr. Hodge and Dr. Wight were independent contractors who could not be found liable for OLOL's advertisements and representations.
On January 17, 2014, OLOL individually filed a motion for summary judgment. OLOL argued that there was no genuine issue of material fact as to Royer's fraud claims and that OLOL was entitled to judgment as a matter of law. OLOL asserted Royer could not present evidence sufficient to bear his burden of proving he relied upon its representations and advertisements in deciding to seek treatment at OLOL. Additionally, OLOL averred that, even if Royer could demonstrate he relied upon its representations and advertisements, he could not prove OLOL's representations and advertisements misrepresented, suppressed, or omitted truthful information.
On August 5, 2014, the trial court issued and signed summary judgment in favor of OLOL. The trial court found there were no genuine issues of material fact with regard to Royer's fraud claims against OLOL and dismissed Royer's remaining claims against OLOL, with prejudice. In written reasons for judgment, the trial court explained incontrovertible evidence on record proved Royer presented to OLOL following the advice and encouragement of his primary care physician, because OLOL was the closest hospital to his location. Moreover, the trial court explained there was no evidence any of the advertisements at issue were untrue and noted OLOL did not make any "guarantees or offers" to Royer.
On October 1, 2014, Royer appealed the trial court's September 12, 2013 and August 5, 2014 judgments. On December 11, 2015, this court affirmed the September 12, 2013 and August 5, 2014 judgments, which granted summary judgments to Dr. Hodge, Dr. Wight, and OLOL regarding the fraud claims. See Royer v. Our Lady of the Lake Hosp. Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587.
In February 2016, Royer filed a third amending and supplemental petition. On February 29, 2016, Royer filed a fourth amended and supplemental petition and contradictory motion for leave of court, in which he requested the court's permission to allow him to file both his third and fourth amending and supplemental petitions. Royer urged that he was not, in either petition, attempting to reassert any of the fraud claims that were at issue in the prior judgments and the prior appeal, but was instead seeking to have his medical malpractice and negligence claims against the defendants heard. Royer also sought to have the defendants precluded from admitting the medical review panel opinion, which was rendered on October 14, 2015, as evidence under La. R.S. 40:1231.8(H). The trial court granted Royer's motion for leave of court on July 6, 2016.
Royer's third amending and supplemental petition is not in the record, but is referred to in his fourth amended and supplemental petition and contradictory motion for leave of court.
Redesignated from La. R.S. 40:1299.47(H) by H.C.R. No. 84 of the 2015 Regular Session, effective June 2, 2015.
On June 22, 2016, OLOL, Dr. Hodge, Dr. Wight, and PEPA filed a motion for order to post bond pursuant to La. R.S. 40:1232.8(I)(2)(c), requesting that the trial court order Royer to post a cash or surety bond in the amount of all costs of the medical review panel, which unanimously ruled against him.
On June 24, 2016, PEPA and Dr. Kataria filed a motion for summary judgment. On August 11, 2016, OLOL filed a motion to tax costs, seeking to tax the costs incurred in connection with the fraud claims asserted by Royer.
On October 12, 2016, the trial court signed a judgment granting the motion for order to post bond filed by OLOL, Dr. Hodge, Dr. Wight, and PEPA. On November 9, 2016, the trial court signed a judgment granting the motion for summary judgment filed by PEPA and Dr. Kataria. This judgment dismissed all of Royer's claims against Dr. Kataria with prejudice. The judgment also dismissed all of Royer's fraud and non-medical malpractice claims against PEPA with prejudice.
On November 22, 2016, OLOL, Dr. Hodge, Dr. Wight, and PEPA filed a motion to dismiss for failure to comply with the court order requiring plaintiff to post bond. Subsequently, Royer filed an ex-parte motion and order for leave to post cash bond beyond the thirty days as ordered. On January 17, 2017, the trial court granted Royer leave to post the cash bond beyond the thirty days.
On March 2, 2017, the trial court signed a judgment granting a motion to dismiss for failure to comply with court order requiring Royer to post bond filed by OLOL, Dr. Hodge, Dr. Wight, and PEPA. This particular judgment is the subject of the accompanying opinion - Royer v. Our Lady of the Lake Hosp. Inc., 2017 CA 1764 (La. App. 1 Cir. ___/___/___).
OLOL's motion to tax costs was granted by the trial court on March 2, 2017. This judgment cast Royer with the costs incurred by OLOL in connection with Royer's fraud claims, in the amount of $1,340.80, plus interest until the date paid. On June 7, 2017, Royer filed a second petition and order for devolutive appeal, in which he appealed the final judgments rendered on March 2, 2017. This appeal only pertains to the March 2, 2017 judgment granting OLOL's motion to tax costs.
This appeal is labeled as a second appeal because of an appeal previously filed by Royer on January 24, 2017. The first appeal was an appeal of several interlocutory judgments rendered on October 12, 2016 and November 16, 2016, which are not related to the appeal before this court in this case. No order of appeal was ever signed for the first appeal.
ASSIGNMENTS OF ERROR
Royer assigns thirteen assignments of error. However, we address twelve of these assignments of error in the accompanying opinion - Royer v. Our Lady of the Lake Hosp. Inc., 2017 CA 1764 (La. App. 1 Cir. ___/___/___). The remaining assignment of error, which pertains to the appeal at hand, states:
PEPA, Dr. Hodge, Dr. Wight, and Dr. Kataria have filed a motion to strike assignments of error 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 13 for nonconformity pursuant to Rules 2-12.4 and 2-12.13 of the Uniform Rules for Louisiana Courts of Appeal. The parties argue that these assignments of error, along with certain portions of Royer's brief, are either not subject to this particular appeal or are not properly on appellate review. We address these assignments of error in the companion case of Royer v. Our Lady of the Lake Hosp. Inc., 2017 CA 1764 (La. App. 1 Cir. ___/___/___). We have not considered these assignments of error in this appeal; therefore, the defendants' motion to strike is denied as moot. --------
The trial court erred by awarding costs to OLOL if the judgment dismissing the medical malpractice claims is reversed.
STANDARD OF REVIEW
A trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Harris v. City of Baton Rouge, 2016-0163 (La. App. 1 Cir. 12/22/16); 209 So.3d 405, 408, writ denied, 2017-00155 (La. 3/31/17); 217 So.3d 360. A trial court's assessment of costs will not be reversed on appeal in the absence of an abuse of discretion. Allen v. Baton Rouge General Medical Center/General Health System, 2009-1110 (La. App. 1 Cir. 12/23/09); 30 So.3d 127, 131, writ denied, 2010-0195 (La. 4/5/10); 31 So.3d 368.
DISCUSSION
Motion to Strike filed by Royer
Royer has filed a motion to strike pursuant to Rule 2-12.2(C) of the Uniform Rules for Louisiana Courts of Appeal. Rule 2-12.2(C) states:
The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Subsection shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.Royer argues that OLOL falsely asserted in its brief that "although Mr. Royer had sustained a heart attack sometime prior to his arrival at the hospital, he was not having an active heart attack when he presented to the emergency department." Royer seeks to have this particular statement stricken from OLOL's brief.
OLOL opposes the motion to strike, arguing that the above statement was poorly-worded, but was not unequivocally false, nor did it violate the Uniform Rules for Louisiana Courts of Appeal. According to OLOL, an EKG test performed immediately after Royer arrived at the hospital did not reveal that Royer was having an active heart attack, nor did Royer's blood work.
We find that the statement at issue is immaterial to the matter at hand. This appeal only concerns the trial court's judgment granting OLOL's motion to tax costs. Accordingly, we deny Royer's motion to strike. Assignment of Error #12
In his twelfth assignment of error, Royer alleges that the trial court erred by awarding costs to OLOL. Specifically, Royer argues that costs should not be awarded until all claims have concluded. Royer contends that OLOL's motion to tax costs was premature and that he cannot be ordered to pay costs until the judgment of dismissal of his malpractice claims is affirmed.
OLOL argues that the trial court properly taxed costs in favor of OLOL and against Royer, because OLOL's motion to tax costs related to Royer's fraud claims. OLOL contends that Royer's fraud claims were dismissed by the district court on a motion for summary judgment filed by OLOL. OLOL points out that this court affirmed the dismissal and the Louisiana Supreme Court denied Royer's application for a writ of certiorari.
Louisiana Code of Civil Procedure article 1920 states, "Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." Louisiana Revised Statutes 13:4533 states, "The costs of the clerk, sheriff, witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs."
Royer's fraud claims against OLOL were dismissed on August 5, 2014. This judgment provided that costs would be paid by Royer. The dismissal of Royer's fraud claims was affirmed by this court on December 11, 2015. Royer's medical malpractice claims against OLOL, which were dismissed as premature on June 11, 2013, were reasserted in February 2016. On July 29, 2016, OLOL filed its motion to tax costs, seeking to tax the costs incurred in connection with the fraud claims asserted by Royer. OLOL's motion to tax costs was granted by the trial court on March 2, 2017. This judgment cast Royer with the costs incurred by OLOL in connection with Royer's fraud claims, in the amount of $1,340.80, plus interest until the date paid.
When this court affirmed the trial court's dismissal of Royer's fraud claims, Royer had no other pending claims against OLOL. Although Royer later re-asserted his medical malpractice claims, this does not permit him to postpone paying the costs awarded in the August 5, 2014 judgment and affirmed by this court in Royer v. Our Lady of the Lake Hosp. Inc., 2015-0009 (La. App. 1 Cir. 12/11/15); 2015 WL 8910533 (unpublished), writ denied, 2016-0298 (La. 4/8/16); 191 So.3d 587. Once the Louisiana Supreme Court denied writs, the August 5, 2014 judgment became final. Accordingly, we find that the trial court did not abuse its discretion in granting the motion to tax costs associated with the August 5, 2014 judgment.
DECREE
For the above and foregoing reasons, the judgment of the Nineteenth Judicial Court, that granted Our Lady of the Lake Hospital, Inc.'s motion to tax costs, is affirmed. The motion to strike filed by Professional Emergency Physician Associates, LLC, Keith Brian Hodge, M.D., Lura LaBorde Wight, M.D., and Shammi R. Kataria, M.D. is denied as moot. The motion to strike filed by Robert L. Royer is denied. Costs of this appeal are assessed to Appellant, Robert L. Royer.
AFFIRMED; MOTION TO STRIKE FILED BY DEFENDANTS DENIED AS MOOT; MOTION TO STRIKE FILED BY PLAINTIFF DENIED.