Opinion
NO. 2020 CA 0611
03-31-2022
Steven Anthony WALCOTT, Jr. v. LOUISIANA DEPARTMENT OF HEALTH AND VALLEY SERVICES, et al.
Laura Ann Reeds, Ronald Lospennato, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Steven A. Walcott, Jr. Steven A. Walcott, Jr., Jackson, Louisiana, Plaintiff/Appellant, Pro Se Carl E. Hellmers, III, Stephanie D. O'Brien, New Orleans, Louisiana and Russell L. Potter, Andrew P. Texada, Alexandria, Louisiana, Counsel for Defendant/Appellee, Valley Services, LLC
Laura Ann Reeds, Ronald Lospennato, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Steven A. Walcott, Jr.
Steven A. Walcott, Jr., Jackson, Louisiana, Plaintiff/Appellant, Pro Se
Carl E. Hellmers, III, Stephanie D. O'Brien, New Orleans, Louisiana and Russell L. Potter, Andrew P. Texada, Alexandria, Louisiana, Counsel for Defendant/Appellee, Valley Services, LLC
BEFORE: McDONALD, WELCH, AND THERIOT, JJ.
THERIOT, J.
This appeal arises from the dismissal of the plaintiff's suit on a dilatory exception raising the objection of lack of procedural capacity. For the reasons set forth herein, we reverse.
FACTS AND PROCEDURAL HISTORY
On October 24, 2019, plaintiff, Stephen A. Walcott, Jr., a patient at East Louisiana Mental Hospital, filed a petition alleging violations of his constitutional rights by the Louisiana Department of Health; Valley Services, LLC ("Valley Services"); and a number of employees of East Louisiana Mental Hospital, both in their individual and official capacities. On November 27, 2019, Valley Services filed an exception raising the objection of lack of procedural capacity, arguing that Walcott lacked procedural capacity to sue pursuant to La. C.C.P. art. 684, because "as reflected by the news article published by houmatoday.com dated May 9, 2018, petitioner has been deemed mentally incompetent and suffers from paranoia and delusions." The 2018 news article, attached as an exhibit to the memorandum filed in support of the exception, states that Walcott was examined by mental health experts prior to a criminal trial and thereafter, Judge Randall Bethancourt "determined the defendant lacked the mental capacity to assist in his defense and did not understand the court proceedings" and "ordered Walcott to be sent to [a psychiatric facility], where he will be treated in an attempt to make him competent." There are no allegations that Walcott has been interdicted.
Valley Services was incorrectly named as "Valley Caterring, an Elior Company" in the petition.
Valley Services also filed an exception of insufficiency of service of process, but that exception was withdrawn and is not at issue in this appeal.
Approximately eleven days prior to the hearing on Valley Services's exception, Walcott filed a request for the court to "order an additional medical opinion regarding [a] mental examination by a licensed clinical psychologist to determine [Walcott's] procedural capacity to sue." However, it does not appear from the record that the requested mental examination was performed.
A hearing was held on the exception of lack of procedural capacity on February 10, 2020. Valley Services filed in evidence Judge Bethancourt's May 9, 2018 order of pretrial commitment and the reports of the three mental health experts who evaluated Walcott during the criminal proceedings. These mental health evaluations, which were obtained specifically to assess Walcott's mental capacity to proceed with his criminal trial, were performed on December 7, 2017, December 21, 2017, and April 3, 2018. The three mental health experts who examined Walcott reached different conclusions regarding his mental capacity to proceed. Dr. Brian Matheme concluded that Walcott was competent to proceed to trial, noting that he has no history of mental illness and a good understanding of the court proceedings. Dr. Matheme explained that Walcott may be unwilling to let his attorney assist him in his defense, "but by his choice not by any mental or psychiatric condition." Dr. Mary Eschete opined that Walcott has either a mood disorder or bipolar disorder, both of which could prevent him from participating in his trial, and noted that "at this time, Mr. Walcott could not assist his attorney in the courtroom." Dr. Joshua Sanderson concluded that "at the time of the evaluation ... Mr. Walcott is unable to demonstrate a rational understanding of the nature of the proceedings and is unable to assist his attorney in his defense." After considering the reports of the three experts, Judge Bethancourt ruled that Walcott presently lacked mental capacity to proceed with his criminal trial and issued a pretrial order of commitment. No evidence was introduced at the hearing on the exception regarding Walcott's current mental state, although he has apparently been receiving treatment "in an attempt to make him competent" since the 2018 pretrial commitment.
At the conclusion of the hearing on Valley Services's exception, the trial court noted that the law recognizes the lack of procedural capacity of both interdicts and mental incompetents who have not been interdicted. The trial court sustained the exception of lack of procedural capacity "[b]ased on the evidence, based on the fact that [Walcott] has alleged in some of his pleadings that he is a pretrial detainee, based on the fact that he has been found incompetent to proceed and he is being held pending, either restoration of competency, or a finding that he is irrestorably incompetent." Concluding that "there is no action by the plaintiff that can cure this problem," the court dismissed Walcott's claim against Valley Services without prejudice.
The judgment also states that the trial court denied the exception of insufficiency of service of process as moot; however, that exception was withdrawn by Valley Services at the hearing.
Walcott appealed, assigning the following trial court errors:
1. The district court erred in holding that incompetency to stand trial in a criminal case automatically divests an individual of procedural capacity to bring a civil suit under Louisiana law.
2. The district court erred in dismissing a civil suit based on lack of procedural capacity to sue, instead of appointing an attorney to represent the plaintiff, where the plaintiff was not interdicted and confined to a mental institution.
3. The district court committed constitutional error in dismissing a civil suit based on lack of procedural capacity to sue, instead of appointing an attorney to represent the plaintiff, where no other representative was authorized to initiate suit on the incapacitated individual's behalf.
DISCUSSION
Louisiana Code of Civil Procedure article 682 provides that "[a] competent major and a competent emancipated minor have the procedural capacity to sue." Further, La. C.C.P. art. 684 provides that a "mental incompetent" does not have the procedural capacity to sue and that the curator is the proper party plaintiff to sue to enforce the rights of an interdict. The comments to Article 684 note that the lack of procedural capacity set forth in the article for mental incompetents extends to a mental incompetent who has not been interdicted. However, no explanation is given as to whom the proper party plaintiff would be in such a situation. The comments simply state that the proper plaintiff to enforce the rights of a mental incompetent is the curator appointed after his interdiction. La. C.C.P. art. 684, Official Revision Comments - 1960, comment (c).
The lack of procedural capacity is raised by a dilatory exception and generally merely delays the progress of an action, but does not defeat it. See La. C.C.P. arts. 923, 926(A)(6). When the grounds of the objection pleaded in a dilatory exception can be removed by amendment of the petition, a judgment sustaining the exception should order the plaintiff to remove the grounds for the objection. However, if the grounds of the objection cannot be removed, the action may be dismissed without prejudice. La. C.C.P. art. 933(B) ; Bourbon Investments, LLC v. New Orleans Equity LLC, 2015-1234, p. 12 (La.App. 4 Cir. 12/21/16), 207 So.3d 1088, 1095 ; Mt. Zion Baptist Ass'n v. Mt. Zion Baptist Church #1 of Revilletown Park, 2016-0151, p. 8 (La.App. 1 Cir. 10/31/16), 207 So.3d 414, 419, writ denied, 2016-02109 (La. 2/3/17), 215 So.3d 697.
The burden of proof on an exception of lack of procedural capacity is on the party challenging the person's competence. Vance v. Ellerbe, 150 La. 388, 397, 90 So. 735, 738 (1922) ; Treadwell v. Treadwell, 41,130, p. 9 (La.App. 2 Cir. 6/28/06), 935 So.2d 740, 745. The evidence presented by Valley Services at the hearing on its exception was limited to evidence from Walcott's criminal proceedings several years prior. In concluding that Walcott lacked procedural capacity to sue, the trial court stated that it relied on the May 9, 2018 determination of incompetence in the criminal proceedings, as well as the fact that, at the time of the hearing on the exception of lack of procedural capacity, Walcott was still being held pending restoration of competency for the criminal proceedings.
The Louisiana Supreme Court has held that the law defines mental incompetence differently for different purposes, and a showing of incompetence for one purpose does not prove incompetence for all others. See State v. Williams, 346 So.2d 181, 186 (La. 1977). Competency for purposes of criminal proceedings is governed by La. C.Cr.P. art. 641, which provides that mental incapacity to proceed "exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." In Williams, the supreme court pointed out that the definition of mental incompetence applicable to a determination of a defendant's capacity to enter into a contract has no bearing on the issue of a defendant's criminal responsibility. Williams, 346 So.2d at 186. Similarly, in Treadwell v. Treadwell, the second circuit held that a declaration by an Arkansas court that a person was an incapacitated person, and the subsequent appointment of a guardian for him, did not preclude the person from having procedural capacity to sue in Louisiana. Treadwell, 41, 130 at pp. 8-9, 935 So.2d at 745. The Treadwell court noted that incapacity under Arkansas law does not carry the same consequences as interdiction under Louisiana law. A declaration of incapacity in Arkansas does not result in a presumption that the incapacitated person is incompetent, and an incapacitated person retains all legal and civil rights except those expressly limited by the court order. On the contrary, interdiction under Louisiana law has been characterized as "a pronouncement of civil death," as in many respects the interdict ceases to exist independently from his curator. Thus, the court held that without other evidence of Treadwell's incapacity, the Arkansas court's declaration of incapacity and appointment of a guardian is insufficient to prove Treadwell's incompetence for purposes of an exception of lack of procedural capacity in Louisiana. Treadwell , 41,130 at p. 9, 935 So.2d at 745. See also Succession of Koerkel, 226 La. 560, 568-69, 76 So.2d 730, 733 (La. 1954) (holding that a showing of interdiction, without evidence of the grounds for interdiction, is insufficient to prove incompetence of witness to a testament); and Julius Cohen Jeweler, Inc. v. Succession of Jumonville, 506 So.2d 535, 539-40 (La.App. 1 Cir.), writ denied, 511 So.2d 1155 (La. 1987) (holding that the ex parte appointment of a provisional curator in a temporary or preliminary interdiction proceeding, pursuant to La. C.C.P. art. 4549(C), is insufficient to raise the legal presumption of incapacity afforded a judgment of interdiction after a full contradictory trial). Thus, the May 9, 2018 finding that Walcott lacked mental capacity to proceed with his criminal trial and his subsequent commitment are not necessarily determinative of his procedural capacity to sue, and we must review the evidence presented by Valley Services in light of the statutory requirements for parties plaintiff set forth in La. C.C.P. arts. 682 and 684.
Louisiana Code of Civil Procedure articles 682 and 684 do not define "competent" or "mental incompetent." However, the reference in the Official Revision Comments to article 684 to a "mental incompetent not interdicted" implies that the grounds for interdiction are instructive in determining whether a person is a "mental incompetent." Louisiana Civil Code article 389 provides that the court may order the interdiction of a person "who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions." Thus, in order to prove that Walcott is a mental incompetent for purposes of his procedural capacity to sue, Valley Services is required to present evidence of an infirmity, which makes Walcott consistently unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions.
Louisiana Code of Civil Procedure article 684, Official Revision Comment - 1960 comment (c) states that the proper plaintiff to enforce the rights of a "mental incompetent" is the curator appointed after his interdiction. The logical extension of this comment is that a "mental incompetent" is simply a person who qualifies for interdiction, but has not yet been interdicted.
The evidence presented by Valley Services concerning Walcott's ability to understand the criminal proceedings or assist in his defense is insufficient to constitute proof that Walcott has an infirmity that makes him consistently unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, as that was not the focus of the evaluations or the commitment order. In addition, the evidence presented by Valley Services concerns Walcott's mental state when he was examined several years prior to the hearing on the exception. No evidence was presented as to Walcott's current mental state. The trial court relied on the fact that Walcott was still receiving treatment for his mental incapacity at the time of the hearing in determining that he was mentally incompetent; however, considering that the goal of that treatment is to restore Walcott's competency for resumption of his criminal proceedings and no evidence was presented as to what progress has been made toward that goal, the trial court erred in so relying.
The ruling of the trial court below has essentially resulted in a "civil death" for Walcott, without the attendant protections of an interdiction proceeding. As a result of this ruling, Walcott is unable to file suit on his own behalf to protect his interests, but no curator has been appointed to proceed on his behalf because he has not been interdicted. Further, Walcott cannot institute interdiction proceedings himself in order to have a curator appointed. Based on the showing made, we must reverse the trial court judgment sustaining the exception of lack of procedural capacity and dismissing Walcott's suit.
Because interdiction is such a harsh remedy, it may be declared only after a contradictory trial, at which the defendant is given the opportunity to cross examine the adverse witnesses and otherwise participate in the hearing. Julius Cohen Jeweler, Inc., 506 So.2d at 539 ; see La. C.C.P. art. 4547. In the interdiction proceeding, the plaintiff has the burden of proving the defendant's incapacity to care for himself and his property by clear and conclusive evidence. Julius Cohen Jeweler, Inc., 506 So.2d at 539 ; see La. C.C.P. art. 4548. Further, even in the event of an ex parte temporary interdiction or a preliminary interdiction, the court is required to appoint an attorney to represent the defendant, unless the defendant retains his own attorney or voluntarily waives the assistance of counsel. See La. C.C.P. art. 4549(C).
Despite the fact that the proper party plaintiff in a suit by a mental incompetent who has not been interdicted is the curator appointed after his interdiction, interdiction proceedings are not automatically triggered by a declaration of incompetence. Although La. C.C.P. art. 4541 provides that "any person" may petition for the interdiction of a natural person, institution of interdiction proceedings is not a listed exception to the rule that a mental incompetent lacks procedural capacity to sue. Louisiana Code of Civil Procedure article 684(B) provides that an interdict may proceed on his own behalf, rather than through his curator, to modify or terminate the interdiction; however, no such exception exists to allow a "mental incompetent" to file a petition for his own interdiction.
Since we have determined that the trial court erred in sustaining the exception of lack of procedural capacity, we need not address the remaining assignments of error concerning the dismissal of Walcott's petition without appointment of a representative to act on his behalf.
CONCLUSION
The February 27, 2020 judgment of the trial court, sustaining Valley Services's exception raising the objection of lack of procedural capacity and dismissing the petition of plaintiff, Stephen Anthony Walcott, Jr., is reversed. Costs of this appeal are assessed to defendant-appellee, Valley Services, L.L.C.
REVERSED.
J. McDonald Concur with reasons by
McDonald, J., concurring.
I agree with reversal of the trial court's judgment granting Valley Services' exception of lack of procedural capacity. After our reversal, Mr. Walcott's suit against Valley Services may or may not proceed. If it does, I write separately to address the inevitable question of "What happens next?"
I respectfully suggest that the trial court should conduct a hearing at which Valley Services must present evidence that Mr. Walcott currently has a mental infirmity that makes him consistently unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. La. C.C.P. arts. 389, 391. Because the majority opinion requires that Valley Services meet the burden of proving Mr. Walcott qualifies for interdiction, applying La. C.C.P. art. 4549C by analogy, Mr. Walcott would arguably be entitled to the appointment of an attorney to represent him at that competency hearing, unless he retains his own attorney or voluntarily waives assistance of counsel. Alternatively, under La. R.S. 28:64A, it appears the Mental Health Advocacy Services may have a duty to represent prisoners who have been committed under La. R.S. 28:59 and whose legal competency has been challenged.
But, what happens after the competency hearing? If the trial court determines Mr. Walcott is mentally competent, then the suit would presumably proceed. But, if the trial court determines Mr. Walcott is presently mentally incompetent, Mr. Walcott is back in the same position as before — without the ability to pursue his claim against Valley Services either personally or through a legal representative. I do not know the solution to this problem, and this panel need not decide it now. I do note, however, that Mr. Walcott appears to argue that he is entitled to the appointment of an attorney to pursue his civil suit. I disagree. Even though a mentally incompetent person is entitled to the appointment of an attorney to represent him in a suit filed against him, see La. C.C.P. art. 733, I do not think the same entitlement is due a mentally incompetent person who chooses to file a civil suit as a plaintiff. First, a mentally incompetent defendant does not choose to be sued, as such, it seems proper to afford him counsel to defend against a civil suit. However, just because a mentally incompetent person thinks he has a meritorious civil suit, and chooses to file that suit as a plaintiff, does not mean that he is entitled to appointed counsel.
I leave these unanswered questions for another day.