author: GREMILLION, Judge.

text:
    Patrick RICHARD v. STATE of Louisiana, The Office of the Governor, Division of Administration, Office of Risk Management
    16-227 consolidated with 16-228
    Court of Appeal of Louisiana, Third Circuit.
    November 30, 2016
    Michael B. Miller, Miller & Associates, P. O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLEE: Patrick Richard
    Hon. Jeff Landry, Attorney General, Sylvia M. Fordice, Assistant Attorney General, 556 Jefferson St., 4th Floor, Lafayette, La 70501, (337) 262-1700, COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana, Office of Risk Management and Department of Transportation and Development
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

The State of Louisiana through the Office of Risk Management and the Department of Transportation and Development (the State) appeals the judgment of the Office of Workers' Compensation that nullified a previous judgment, which was the subject of our opinion in State v. Richard , 12-1247 (La.App. 3 Cir. 3/20/13), 112 So.3d 936, rev'd , 13-890 (La. 10/15/13), 125 So.3d 398. For the reasons that follow, we amend the judgment, affirm in part, as amended, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mr. Patrick Richard was injured in the course and scope of his employment with the Department of Transportation and Development (DOTD) on September 20, 2005. The State paid Mr. Richard temporary total disability benefits (TTD), but he remitted these checks to the State, opting instead to receive his regular salary by utilizing his accrued vacation and sick leave time. Mr. Richard retired from the State on April 20, 2007, and began to keep his TTD checks. In 2011, the State filed a Disputed Claim for Compensation in which it asserted that it was entitled to an offset of Mr. Richard's TTD benefits against the disability retirement benefits it asserted were being paid to him pursuant to La.R.S. 23:1225(C)(1). Mr. Richard asserted that a conversation between himself and a DOTD employee constituted an agreement that his disability retirement benefits would not offset his TTD benefits, and in the alternative, that this conversation and assurance estopped the State from arguing its entitlement to an offset. In 2012, the Workers' Compensation Judge (WCJ) ruled in the State's favor and ordered an offset of $224.05 per week from April 21, 2007, until Mr. Richard reached the age of 60 on July 22, 2013, when his retirement was to be converted to regular retirement.

This court reversed the WCJ and ruled that the State was estopped from claiming an offset because of the assurances by the DOTD employee that his TTD benefits had no effect on his retirement benefits. State v. Richard , 112 So.3d 936.

The Louisiana Supreme Court reversed and reinstated the offset. State v. Richard , 13-890 (La. 10/15/13), 125 So.3d 398. The supreme court held that, for estoppel to apply, Mr. Richard was required to prove his reliance to his detriment upon the assurances of the DOTD employee and that it was reasonable for him to do so. It held that he failed to prove these elements. Any agreement asserted by Mr. Richard between himself and the State must be clear and unambiguous, and Mr. Richard failed to prove such an agreement.

On August 14, 2014, Mr. Richard filed a "Motion and Order to Nullify Judgment" in which he alleged that after he reached age 60, he contacted the State to ascertain when his retirement was to be converted from disability to service retirement. According to the motion, Mr. Richard was told that he had been converted to service retirement as of July 22, 2008. The motion argued that the State obtained the 2012 judgment through fraud or ill practices, and that it should be nullified. The State opposed the motion by arguing that only a petition could be filed to nullify a judgment. Thereafter, Mr. Richard filed a Disputed Claim for Compensation and a "Petition to Nullify Judgment," again asserting that the original offset judgment had been obtained through false representations pursuant to La.R.S. 23:1208 and through fraud or ill practices. The State reinstated Mr. Richard's weekly indemnity benefits on September 19, 2014.

The State then filed a "Petition to Modify Judgment" in which it acknowledged that it was only entitled to an offset from April 27, 2007 through July 7, 2008, when it claimed Mr. Richard's retirement was converted from disability to service. The State moved to consolidate the two matters, which were tried on stipulations and exhibits. The WCJ entered oral reasons for judgment into the record in which the State was found to have obtained the 2012 judgment through ill practices. The WCJ then signed a judgment annulling the 2012 judgment. That judgment provided that the State was entitled to an offset of $224.05 per week from April 21, 2007 through July 21, 2008 and was entitled to no offset thereafter. Mr. Richard was awarded $13,000.00 in attorney fees. In the alternative, the WCJ granted the State's request to modify the judgment, again finding that it was only entitled to an offset from April 21, 2007 through July 21, 2008.

After this judgment was signed, the State filed a motion for new trial in which it asserted that the judgment was imprecise and indefinite because it failed to pronounce the dollar amount awarded to Mr. Richard. This motion was denied, and the State perfected this appeal. Mr. Richard answered the appeal and asserted one assignment of error regarding the amount of attorney fees awarded, and requested additional attorney fees.

ASSIGNMENTS OF ERROR

The State assigns the following as error:

I. The workers' compensation judge erred as a matter of law in granting the claimant's petition for nullification of the original May 1, 2012 judgment, and in the alternative, granting the State's petition for modification of that same judgment, rendering the September 15, 2015 judgment imprecise, indefinite, and uncertain.
II. The workers' compensation judge erred as a matter of law in granting the claimant's petition for nullification of the original May 1, 2012 judgment, and in the alternative, granting the State's petition for modification of that same judgment, rendering the September 15, 2015 judgment imprecise, indefinite, and uncertain.
III. The workers' compensation judge erred in failing to award attorney fees to defendant's counsel.
IV. The workers' compensation judge committed manifest error in awarding attorney fees to claimant's counsel as there is no credible evidence to support an award of $13,000.00.
V. The workers' compensation judge erred in ordering the State to pay costs.
VI. The workers' compensation judge erred as a matter of law in failing to determine the sum certain alleged to be owed the claimant by the State.
VII. The workers' compensation judge committed manifest error in denying the State's motion for a new trial

Mr. Richard did not assert an assignment of error in his brief, but does argue that if the State does not prevail in its appeal, he should be awarded additional attorney fees for work done by his counsel on appeal.

ANALYSIS

There is no dispute in this case that the State wrongly sought and obtained a judgment allowing it a credit for weekly indemnity benefits against what it alleged was Mr. Richard's disability-related retirement benefits. Both Mr. Richard and the State sought judicial rectification of the 2012 judgment. Mr. Richard sought to annul the judgment; the State sought to modify the judgment.

The Louisiana Code of Civil Procedure specifies several grounds for the annulment of a final judgment, including a judgment rendered against an incompetent person, against a person who was not properly served with process, or by a court that did not have subject matter jurisdiction over the case. La.Code Civ.P. art. 2002. A court may also annul a judgment obtained through "fraud or ill practices." La.Code Civ.P. art. 2004. In defining "fraud or ill practices", the Louisiana Supreme Court stated:

"[T]he article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable."

Kem Search, Inc. v. Sheffield , 434 So.2d 1067, 1070 (La.1983).

The State argues that the judgment should have been modified as per its motion. The State is correct that a WCJ retains jurisdiction over cases and has the authority, on application of any party, to modify his judgment as he deems justified. La.R.S. 23:1310.8. However, in Martin v. Red Simpson, Inc. , 96-1177 (La.App. 3 Cir. 3/12/97), 692 So.2d 635, we held that a judgment awarding benefits through fraud or ill practices was properly annulled and not modified. The court reasoned that a causal relationship between the fraud or ill practices and obtaining the judgment determined whether a judgment should be modified or annulled. We are similarly persuaded that, though La.R.S. 23:1310.8 allows a WCJ to modify a judgment, when the judgment is obtained through fraud or ill practices, the appropriate action is for nullity and not modification. We, therefore, affirm the WCJ's judgment declaring the 2012 judgment null, and reverse that judgment to the extent it affirmed the State's petition to modify.

The State asserts two assignments of error regarding attorney fees. In the first, it asserts that the WCJ erred in failing to award it attorney fees. The State's theory in support of this contention may be summarized as follows: the judgment only required modification, not nullification, and the State was required to defend the action for nullification by opposing Mr. Richard's attempt to prosecute the same by motion rather than petition. Further, the State contends that it was the prevailing party in the action.

We reject the State's argument. The State wrongly obtained a judgment in 2012 and was more than content to rest upon this judgment in perpetuity. Only after Mr. Richard sought judicial redress did the State move to address its error. We have no difficulty in affirming the WCJ's determination that Mr. Richard was the prevailing party in this case. While this judgment does recognize that the State was entitled to an offset for the period ending in July 2008, it also recognizes that the State was exercising an offset far longer than it was entitled to. Louisiana Code of Civil Procedure article 2004(C) allows reasonable attorney fees to the prevailing party when a judgment is annulled for fraud or ill practices.

Similarly, the State complains of being taxed with court costs. We disagree, for largely the same reasons set forth above. Louisiana Code of Civil Procedure art. 1920 provides that the party cast in judgment shall pay the costs unless the judgment provides otherwise. Louisiana Revised Statutes 13:5112 provides that when the State is cast with court costs, the judgment "shall express such costs in a dollar amount[.]" The judgment herein failed to so provide. We, therefore, amend the judgment to tax the State with the court costs below in the amount of $30.00.

The State's second assignment of error regarding attorney fees complains of the amount of attorney fees awarded to Mr. Richard. It contends that the basis of the award was an unsworn document attached to Mr. Richard's post-trial memorandum. A decision to award or deny attorney fees lies within the "great discretion" of the WCJ.

Rougeau v. Gottson Const. Co. , 10-1082, p. 5 (La.App. 3 Cir. 2/9/11), 57 So.3d 576, 580, writ denied , 11-492 (La. 4/25/11), 62 So.3d 90. It is not necessary for a WCJ to receive evidence regarding the claimant's attorney's time, effort, and expense in prosecuting a workers' compensation claim. Conner v. Bridgefield Cas. Ins. Co. , 15-621 (La.App. 3 Cir. 12/9/15), 185 So.3d 754, writ denied , 16-739 (La. 6/3/16), 192 So.3d 747. The record itself reflects the value of the claimant's attorney's work. Id.

The unsworn document did not serve as a basis for the award of attorney fees to Mr. Richard, as the amount awarded was far less than the over $20,000.00 that document purported to seek. We find that the WCJ did not abuse its discretion in awarding Mr. Richard attorney fees.

Given that we are affirming the trial court's decision regarding the nullification of the 2012 judgment, the State's assignment of error regarding its motion for new trial is rendered moot.

Mr. Richard has prayed for additional attorney fees for his attorney's work on appeal. When an employee successfully defends a workers' compensation judgment on appeal, this court ordinarily awards additional attorney fees. Anderson v. Kroger No. 747 , 13-259 (La.App. 3 Cir. 12/11/13), 127 So.3d 1026, writ denied , 14-64 (La. 3/14/14), 135 So.3d 604. In the present matter, we find that Mr. Richard is entitled to additional attorney fees in the amount of $4,000.00.

SUMMARY AND DECREE

There is no dispute that the State of Louisiana through the Office of Risk Management and the Department of Transportation and Development withheld a considerable amount of money from its injured employee, Patrick Richard. There is no dispute that these funds were withheld from Mr. Richard by virtue of the 2012 judgment. There is no dispute that this judgment was obtained through information that was incorrect even before the State petitioned to have its credit against Mr. Richard's alleged disability-related retirement. The 2012 judgment deprived Mr. Richard of weekly indemnity benefits under the Louisiana Workers' Compensation Act to which he was entitled. We affirm the WCJ's finding that the 2012 judgment was obtained through fraud or ill practices pursuant to La.Code Civ.P. art. 2004.

We affirm the WCJ's award of attorney fees to Mr. Richard in the amount of $13,000.00 and award him attorney fees on appeal of $4,000.00.

We amend the WCJ's judgment to assess the State with $30.00 in court costs below, and assess the State with the appeal costs herein, which total $895.00.

AFFIRMED IN PART, AS AMENDED, REVERSED IN PART.

      Louisiana Revised Statutes 23:1225(C)(1) reads:
      C. (1) If an employee receives remuneration from:
      ....
      (c) Benefits under disability benefit plans in the proportion funded by an employer.
      ....
      then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers' compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

      Henceforth, we will refer to this judgment as "the 2012 judgment."


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Jacqueline BRENNER, et al. v. Dr. Ronald M. LEWIS, et al.
    17-585
    Court of Appeal of Louisiana, Third Circuit.
    Rendered on January 18, 2018
    James E. Shields, Sr., Shields & Shields, APLC, 30 New England Court, Gretna, LA 70053, (504) 368-2404, COUNSEL FOR PLAINTIFFS/APPELLANTS: Jacqueline Brenner, Judith LeBlanc, Estate of Judith LeBlanc, Estate of Elwin C. LeBlanc
    Benjamin J. Guilbeau, Jr., Marcelynn Hartman, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Post Office Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR DEFENDANTS/APPELLEES: Ronald M. Lewis, M.D., Louisiana Medical Mutual Ins. Co.
    Brandon A. Sues, Sarah Couvillon, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLEE: Christus St. Patrick Hospital
    Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

This is a case involving a medical malpractice action. Patient's father and sister ("Plaintiffs") instituted this action on behalf of a family member against the patient's primary care physician and his insurance carrier, the hospital and its insurance carrier, (collectively "Defendants") and the Louisiana Patient's Compensation Fund, alleging various acts of negligence arising out of the failure to treat an alleged diagnosis that resulted in the patient's death shortly after her discharge.

Defendants moved for summary judgment on the basis that there was no genuine issue of material fact upon which Plaintiffs could meet the burden of proof required in a medical malpractice case.

After oral arguments were heard, the trial court granted both Defendants' summary judgments and issued written reasons for each.

Plaintiffs now appeal the trial court's ruling. Their argument is that Defendants breached the standard of care owed to the patient in (1) failing to diagnose and treat sepsis, (2) failing to administer antibiotics, and (3) prematurely discharging the patient from the hospital.

FACTS AND PROCEDURAL HISTORY:

On February 23, 2011, after experiencing two seizure-like episodes at her home, forty-seven-year-old Judith LeBlanc ("Ms.

LeBlanc") was seen in the emergency room of CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St. Patrick Hospital ("St. Patrick's") by her primary care physician, Ronald M. Lewis, M.D., ("Dr. Lewis") and was subsequently admitted. At that time, Ms. LeBlanc was receiving treatment for a jaw infection and was scheduled for a tooth extraction the following day.

Over the course of the next few days, Dr. Lewis ordered several tests to rule out multiple potential underlying conditions that could have caused Ms. LeBlanc's seizure activity. All testing was negative. Ms. LeBlanc was alert and showed no signs of distress, dehydration, or sepsis during admit, throughout her hospital stay, or upon discharge. Likewise, she displayed no signs of seizure-like activity, no fever, and no other signs of infection. Relying on test results and on his observations of Ms. LeBlanc, Dr. Lewis made a differential diagnosis, which included several possible diagnoses, one of which was sepsis. However, Dr. Lewis did not treat Ms. LeBlanc for sepsis because her clinical examination was not consistent with sepsis, and she displayed no signs of being septic. Rather, it was Dr. Lewis' opinion, which he discussed with Ms. LeBlanc and her family, that she had possibly suffered a cataplexic event, either due to narcolepsy and/or obstructive sleep apnea. Ms. LeBlanc's family requested that she be discharged as soon as possible because just a few weeks earlier, her mother had unexpectedly passed away in a hospital following spinal surgery. Therefore, because all testing for sleep disorders could be safely arranged at home, Dr. Lewis discharged Ms. LeBlanc with instructions to follow-up in his office in two weeks to schedule the proposed testing following her scheduled oral surgery.

Two days after her discharge from St. Patrick's, Ms. LeBlanc was seen in the Emergency room of Lake Charles Memorial Hospital where she was noted to have difficulty breathing. Subsequently, Ms. LeBlanc developed seizure activity and cardiopulmonary arrest. Cardiopulmonary resuscitation ("CPR") was administered; however, Ms. LeBlanc was unable to be resuscitated and was pronounced dead.

On February 10, 2012, Ms. LeBlanc's father, Elwin LeBlanc, filed a complaint with the Louisiana Patient's Compensation Fund (PCF) requesting a review of the medical care provided to his daughter by Dr. Lewis during her February, 2011 admission to St. Patrick's.

The Medical Review Panel met and rendered a unanimous opinion in favor Defendants, finding that neither St. Patrick's, nor Dr. Lewis, had breached the standard of appropriate care as charged in the Plaintiffs' complaint.

On October 14, 2015, Jacqueline A. Brenner, Ms. LeBlanc's sister, instituted this lawsuit against Defendants, individually, and on behalf of decedent, Judith LeBlanc, and the estate of Judith LeBlanc, and the estate of Elwin C. LeBlanc, on behalf of decedent Judith LeBlanc. In response, Defendants filed motions for summary judgment seeking to have the Plaintiffs' petition against them dismissed. Their motions relied upon the favorable Medical Review Panel opinion rendered in this matter, as well as the affidavit of James Jackson, M.D.

Plaintiffs opposed the motion, attaching to their opposition the unsigned affidavit of Dr. Terry Shaneyfelt. Therein, Dr. Shaneyfelt noted that "Dr. Ronald Lewis breached the standard of care by not providing antibiotics in a timely fashion to a patient he diagnosed with sepsis." Dr. Shaneyfelt further opined that "[M]s. LeBlanc was not given appropriate antibiotics to cover infection of her jaw which resulted in sepsis and death, a breach of the standard of care. This breach led directly to her death."

After oral arguments were had, the trial court granted summary judgment in favor of Defendants.

Plaintiffs timely filed a motion for devolutive appeal. Pursuant to that motion, Plaintiffs are presently before this court alleging seven assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in finding that Appellants malpractice expert, Dr. Terrence Shaneyfelt's, expert testimony was insufficient to create a genuine issue of material fact as to whether Appellee, Dr. Lewis, failed to treat the infection [sepsis ] that caused Decedent's death.

2. The trial court erred in finding that Appellee, Dr. Lewis, never diagnosed Decedent with sepsis on admit into Appellee, St. Patrick's, even though his "Treatment Plan " for Decedent was to treat sepsis with antibiotics and monitor.

3. The trial court erred in finding that Appellee, Dr. Lewis and/or Appellee, St. Patrick's, did not violate Decedent's "Patient's Discharge Rights and Medicare Discharge Rights, " when Decedent was forced discharge from St. Patrick's by Dr. Lewis.

4. The trial court erred in accepting the Medical Review Panel's impeached finding that Appellants never begged and pleaded with Appellee, Dr. Lewis, not to force discharge Decedent.

5. The trial court erred in not finding that the Medical Review Panel's Opinion and Findings and Appellee, Dr. Lewis' testimony, were not impeached by testimony of Dr. Jon Gray, which created a genuine issue of material fact, pursuant to La.C.C.P. Article 967.

6. The Trial court erred in not admitting Appellee, Dr. Lewis', signed and authenticated Death Summary (V2 P293) and Death Certificate (V2 P294).

7. The trial court erred in finding that there were no genuine material facts or evidence to show Decedent was diagnosed with sepsis on admit from Appellee St. Patrick's emergency department into its hospital ward by Appellee, Dr. Lewis.

ASSIGNMENT OF ERROR NUMBER TWO:

We will address assignment of error number two because the crux of the matter is whether Dr. Lewis "diagnosed" Ms. LeBlanc with sepsis during her February, 2011, hospital stay at St. Patrick's and as such, is outcome determinative. Plaintiffs contend that the trial court erred in finding that Dr. Lewis never diagnosed Ms. LeBlanc with sepsis on admit into St. Patrick's, even though his treatment plan for her was to treat sepsis with antibiotics and monitor. We disagree.

In Wofford v. Dunnick, M.D ., 09-1309, pp. 6-7 (La.App. 3 Cir. 4/14/10), 36 So.3d 370,373-74, this court discussed the standard of review to be employed by an appellate court when reviewing a motion for summary judgment filed in a medical malpractice case:

A motion for summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria as the trial court to determine whether summary judgment is appropriate; whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P art. 966 ; Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. A motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Djorghi v. Glass , 09-461, p. 2 (La.App. 3 Cir. 11/4/09), 23 So.3d 996, 998, writ denied , 09-2614 (La. 2/5/10), 27 So.3d 306. In Djorghi , we explained the burden of proof in a medical malpractice case, particularly in the context of a motion for summary judgment filed by a defendant, noting:
Louisiana Revised Statutes 9:2794(A) provides "that a medical malpractice plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and the resulting injury." See Brown v. Riverland Med. Ctr., 06-1449, p. 4 (La.App. 3 Cir. 3/7/07), 952 So.2d 889, 892, writ denied , 07-0740 (La. 6/1/07), 957 So.2d 177. Expert testimony is generally required for a medical malpractice plaintiff to establish the applicable standard of care and
breach of that standard of care. Samaha , 977 So.2d 880. Thus, the defendant is only required to point out that there is an absence of factual support for one or more elements essential to the plaintiff's claim to support that there is no genuine issue of material fact. Id.

In granting St. Patrick's motion for summary judgment in the present case, the trial court stated:

I cannot accept an unsigned affidavit. I cannot accept uncertified medical records. Now, the-there are some certified medical records, but I think they all have to do with Dr. Lewis and what he did, didn't do, and things of that sort. I don't see where St. Patrick's-I don't see any evidence that-from the plaintiff that presents a genuine issue of material fact as it relates to St. Patrick's Hospital.

In so ruling, the trial court noted "[I] don't have enough before me from the plaintiffs to defeat St. Patrick's motion for summary judgment."

In granting Dr. Lewis' motion for summary judgment in the present case, the trial court stated:

When I looked at the record that now has been identified as the differential diagnosis, that's the first thing that came to my mind. These are the list of possible problems, causes, and concerns. And Mrs. [sic] LeBlanc, as I understand it, was alert when she got to the hospital. I know she was alert upon discharge.
....
[I] think it's significant that she was already on antibiotics....
[I]'m going to grant the motion for summary judgment on behalf of Dr. Lewis .... If this patient had been diagnosis [sic] with sepsis it would be inconceivable how one could not have committed malpractice by not treating it. The objective signs of sepsis was not there. It was considered, entertained, and found not to be the case upon the-I don't know, the admission and the discharge.

In so ruling, the trial court noted that .... "Shanafield's [sic] affidavit is insufficient to create an issue there, because she was not diagnosed with sepsis."

Plaintiffs contend that Dr. Shaneyfelt's affidavit proves that Defendants breached the standard of care owed to Ms. LeBlanc when Dr. Lewis diagnosed her with sepsis after admitting her to St. Patrick's, subsequently failed to treat her, and prematurely discharged her, which ultimately led to her death. The Plaintiffs' argument is misplaced.

What is crucial is that Dr. Lewis made a differential diagnosis, which included several possible diagnoses, one of which was sepsis. A differential diagnosis is essentially a list of symptoms/disorders that could be the cause of symptoms an individual presents with. A differential diagnosis generally takes into account, among other things, the patient's gender, age, occupation, and medical and family history. Dr. Lewis did not treat Ms. LeBlanc for sepsis because her clinical exam was not consistent with sepsis, and she displayed no signs of being septic during admit, throughout her hospital stay, or upon discharge. Thus, Plaintiffs' argument fails given that Dr. Lewis never diagnosed Ms. LeBlanc with sepsis.

Contrary to the Plaintiffs' argument, the trial court had a clear grasp of the evidence, and/or lack thereof, and it was not under the mistaken belief that St. Patrick's and Dr. Lewis breached the standard of care owed to Ms. LeBlanc when Dr. Lewis diagnosed Ms. LeBlanc with sepsis, and thereafter failed to treat her accordingly. Rather, Plaintiffs failed to provide any evidence against St. Patrick's, and the evidence they did provide against Dr. Lewis simply confirmed that he made a differential diagnosis in which sepsis was one of several possible diagnoses that was subsequently ruled out.

Here, as in Djorghi , 23 So.3d at 999, we find that without sufficient evidence produced by the Plaintiffs to establish that they will be able to prove their claim at trial, no genuine issue of material facts exists, and the Defendants' motion for summary judgment was properly granted.

ASSIGNMENTS OF ERROR NUMBER ONE, THREE, FOUR, FIVE, SIX, and SEVEN:

Plaintiffs assert seven assignments of error as to why the trial court erred in granting Defendants' motions for summary judgment. Our finding in assignment of error number two pretermits the other six assignments.

CONCLUSION:

For the foregoing reasons, the trial court's grant of summary judgment in favor of CHRISTUS Health Southwestern Louisiana d/b/a CHRISTUS St. Patrick's Hospital and Ronald M. Lewis, M.D., is affirmed. All costs of this appeal are assessed to Plaintiffs.

AFFIRMED .

Cooks, J., dissents and assigns written reasons.

Cooks, J., dissents.

The majority rests its decision on the same misplaced focus as did the trial court, summing up its position as: "Dr. Lewis did not treat Ms. Leblanc for sepsis because her clinical exam was not consistent with sepsis, and she displayed no signs of being septic during admit, throughout her hospital stay, or upon discharge. Thus, Plaintiffs' argument fails given that Dr. Lewis never diagnosed Ms. Leblanc with sepsis." But this is not the issue here on summary judgment . The determinative issue in this summary judgment proceeding, as in all summary judgment proceedings, is whether or not Plaintiffs, as the non-moving party, have shown that there are genuine issues of material fact that are unresolved at this stage of the proceeding precluding summary judgment in favor of Defendants. At the outset I concede that the Plaintiffs fail to meet this burden as regards St. Patrick Hospital. However, I strongly disagree that the Plaintiffs fail in this regard concerning Dr. Lewis.

Plaintiffs put forth expert medical evidence by Dr. Terry Shaneyfelt, M.D. (Dr. Shaneyfelt) who states in his affidavit:

It is part of training and normal standard practice of internists, family practitioners, and hospitalists to prescribe antibiotics for possible infection .

The Medical Review Panel members say "The medical records do not indicate a strict medical necessity for antibiotics during her stay or upon discharge." But Dr. Shaneyfelt and Dr. Gray say the standard of care is "to prescribe antibiotics for possible infection" and "if there is any suspicion of serious infection then give [a] broad spectrum antibiotic." Dr. Shaneyfelt chronicles in his affidavit the medical evidence of record that he says shows signs of possible infection. My review of the record discloses much support for that position. The history given when Judith was admitted to the emergency room indicates she had:

Fever , chills , sweaty, chest pain, breathing difficulty, short of breath, headache, nausea, vomiting, shoulder/arm pain, weakness, lightheaded, dizzy, headache, abdominal pain, recent illness, sore throat, dental problems, cough, diarrhea, black/bloody stools, problems urinating, joint pain, legs/ankles swelling, swollen glands, and confusion.

According to Dr. Shaneyfelt and Dr. Jon Gray (Dr. Gray), Judith's treating physician at Lake Charles Memorial Hospital (Memorial), these are classic signs and symptoms of possible infection and additionally indicate the possibility of sepsis. Dr. Lewis likewise testified in his deposition that "Sepsis is a criterion by which you classify people with infection. They are to meet the criteria of fever, elevated white count, elevated heart rate, bacteremia in the bloodstream, some sign of infection causing illness." Despite the fact that Dr. Lewis documented all but one of these criteria he maintains he saw no symptoms or evidence in lab reports that Judith had an infection when she was admitted to St. Patrick Hospital or when he discharged her. As relates to her discharge, the evidence shows Judith's lab reports including blood work were not ready on the day of her discharge until many hours after Dr. Lewis discharged her, thus he could not have known the results nor considered them. He testified that he would not discharge a patient without seeing all the results of testing yet he discharged Judith many hours before the last round of her Hematology and Blood Chemistry test results were available. He says he did this because her family was pressuring him to release her from the hospital. But Plaintiffs maintain they begged him not to release her because she was too ill. When pressed in his deposition on this question Dr. Lewis responded that he could not say Plaintiffs were wrong in this regard, in other words, he admits that Plaintiffs did not want Judith released from the hospital yet he continues to maintain he released her before her final blood work was complete in deference to her family's wishes. That blood work showed abnormal results in every category according to the reference on the reports.

Dr. Lewis' testimony that he saw no symptoms or evidence in lab reports that Judith had an infection when she was admitted to St. Patrick's Hospital or when he discharged her is at odds with Dr. Shaneyfelt's affidavit and according to Dr. Shaneyfelt, is at odds with the medical record. This presents a major genuine issue of material fact which cannot be resolved on summary judgment. Summary judgment is not a substitute for a trial on the merits and the court cannot engage in weighing evidence or making credibility determinations between adverse expert witnesses. The medical record shows Dr. Lewis did in fact recognize that Judith was being treated for an infection related to her jaw and molars when admitted to St. Patrick , and according to his own notes he included in his plan of treatment the administration of antibiotics. Likewise, the record clearly shows, and Dr. Shaneyfelt testifies, that no antibiotics were given during Judith's hospital stay or upon her discharge from the hospital. Dr. Gray testified that a doctor can make a presumptive diagnosis of sepsis based on symptomology and according to Dr. Shaneyfelt such symptomology was present when Judith presented at St. Patrick Emergency Room (ER). Dr. Gray also testified that "if there is any suspicion that the person has some serious infection then he would use a broad-spectrum antibiotic to cover all of our bases." And that is precisely what he did when Judith was admitted to the ER at Memorial and it is what Dr. Shaneyfelt opines should have been done at St. Patrick by Dr. Lewis but was not done. It is for the trier of fact to determine if such failure in these circumstances falls below the standard of care and such unresolved issue precludes summary judgment.

The record further contradicts Dr. Lewis' assertion that he did not diagnose sepsis and did not see the need to administer antibiotics because he "saw no evidence to support either." In Dr. Lewis' Plan of Treatment, based on the initial information concerning Judith's condition and the possible causes of the syncope episode which caused her to go to the ER at St. Patrick, Dr. Lewis notes his plan of treatment includes "antibiotics and monitoring for osteomyelitis and/or cellulitis of the right angle of the jaw." Osteomyelitis is defined in Webster's Dictionary as an "inflammation of the bone or bone marrow, usually due to infection " and as "an infectious usually painful inflammatory disease of the bone often of bacterial origin that may result in the death of bone tissue." The Free Dictionary by Farlex defines cellulitis as "an acute, spreading, bacterial infection of the skin and subcutaneous tissues. Cellulitis often originates from an infected wound and can lead to serious illness in the elderly or those with compromised immune systems." Dr. Lewis testified in his deposition that he was aware Judith was taking the medication Embrel for her rheumatoid arthritis and that it "inhibits the immune system" and "can accelerate an infection." All of this, says Dr. Shaneyfelt, shows Dr. Lewis was at the very least aware of a possible infection for which he should have started giving antibiotics and he was aware Judith was taking a medication that weakened her immune system and could accelerate an infection. In his testimony Dr. Lewis says he "notes she had been treated for right molar infection for about a week with antibiotics and says he initially considered sepsis as a possible cause of her problem because "[y]ou know she had a molar infection." In response to the direct question "Did she have a right molar infection when you examined her in ER?" he equivocally responded:

Well, I stated that her face was swollen. Let me see. She does have some swelling in her right face at the angle of her mandible. Some slight erythema and slightly indurated. I mean she had some swelling at the angle of her jaw.

Erythema is defined as a redness of the skin caused by dilation and congestion of the capillaries, often a sign ofinflammation or infection . Indurated refers to a soft tissue that is abnormally firm due to an influx of fibrous tissue elements. See American Heritage Dictionary, Fifth Ed., 2016 Houghton Miffler Harcourt Pub. Co. When asked if the blood test he had run on Judith showed any sign of infection Dr. Lewis responded "no" and maintained that the lab report showed her white blood count was "normal." But Dr. Shaneyfelt disputes that representation pointing out the lab report shows on its face an elevated white blood cell count which the report lists as "High," not in normal range. Further, the medical record shows Judith had an elevated liver function, among other abnormal findings, all of which Dr. Shaneyfelt opines also pointed to the need to administer antibiotics. This presents yet another significant genuine issue of material fact as to the breach of standard of care.

The trial court and the majority place much emphasis on the notion that Dr. Lewis made a proper "differential diagnosis" which considered multiple possibilities as causes of Judith's syncope episode and then ruled out a number of possible causes leaving him to conclude that her syncope was caused by syncope. That is meaningless and nonsensical. It is not a diagnosis. Syncope means nothing more than passing out, and a person does not pass out without a reason. It is the cause of the passing out episode that is the riddle to be solved. Dr. Lewis failed to resolve this riddle but released Judith from the hospital without giving her any antibiotics as he planned to do and as two medical experts state he should have done.

Dr. Lewis testified regarding his hospital admit dictation when he first saw Judith at St. Patrick as follows:

"Forty-seven-year-old white female complained of syncope with possible seizure activity. Patient appears being postictal following an episode of loss of consciousness.
Q. What did you make of that?
A. Well, I have to go by what I was told, and it appeared that she may have had a seizure. And when you have a seizure, oftentimes you're sleepy afterwards. It's called postictal state.
Q. You didn't think it was anything to be concerned about?
A. Well, yeah-
Q. What was your concern?
A. Well, I mean, she might have had a seizure, and the question is: Number one, is she going to have another one?
Number Two is: What caused it? (emphasis added)

Thus, according to Dr. Lewis' own statement, his number one immediate concern for Judith was her experiencing another seizure and it was part of his plan to avoid that possibility by administering antibiotics and watching for worsening signs of infection. Despite that this part of his treatment plan was readily available to do, and according to Dr. Shaneyfelt and Dr. Gray was the prudent and "normal standard practice, " he did not give Judith any antibiotics for possible infection. It is important to note that Dr. Lewis explained he initially had reason to suspect sepsis and he acknowledges that an "infection causing illness," such as Judith's jaw infection, is a criterion for classifying a person as septic. His plan to determine what was wrong with Judith was to administer a number of tests relating to "seizure disorder; cardiac arrhythmia ; vasovagal response; pulmonary embolism ; sepsis; cardiac-related arrhythmia ; and narcolepsy and/or obstructive sleep apnea" andto give her antibiotics and monitor her for signs of worsening infection of her jaw and molar (osteomyelitis and cellulitis ) . Dr. Lewis implemented all of his plan save and except for what turned out to be the most important item, giving Judith antibiotics. According to Dr. Shaneyfelt "Had appropriate antibiotics been given to Ms. Leblanc in a timely fashion she more likely than not would have survived this [possible]infection." He further states Judith "lost her chance of survival by failing to administer appropriate antibiotics."

In addition to a number of routine blood tests and lab work Dr. Lewis ordered in his "plan of treatment" the following based on Judith's history of "lying in bed ill for the past week" with an infection and suffering a syncope episode and/or a seizure (emphasis added) severe enough to send her to the ER at St. Patrick :

1. A syncopal workup, to include a workup for PE, with right bundle branch on her EKG and right ventricular hypertrophy as well, and tachycardia, and substernal chest pain, and a history of lying in bed ill for the past week ,[with an infection] and edema in her lower extremity.
2. Get a tilt-table test.
3. EEG to rule out seizure activity.
4. Signal averaged ECG.
5. Echocardiogram to evaluate LVH and pulmonary hypertense.
6. Antibiotics and monitoring for osteomyelitis and/or cellulitis of the right angle of the jaw.

The record shows the tilt-table test was negative. When questioned about his decision to have the signal average ECG test-an electrical tracing of the heart averaging EKG results to test for cardiac arrythmia-Dr. Lewis says there were no signs or symptoms of cardiac arrhythmia "but given her history of having fainted and a seizure" he thought it best to check this out as a possible cause of her fainting/seizure. But the tests, he concluded, did not indicate this as the cause. The next test was "negative for late potentials" in the ultrasound of the bilateral lower extremities. This was done "to rule out DVT's," deep vein thrombosis, caused by pulmonary embolism as a possible cause of her fainting or syncope. Again, he stated that nothing he was aware of in her past medical history caused him to consider this possibility yet he had it checked out. The test showed no evidence of lower extremity DVT's. Dr. Lewis says he concluded from these tests "She doesn't suffer from a cardiac arrhythmia that caused her to be faint, she doesn't have neurocardiogenic syncope, and she doesn't have a blood clot in her leg that might have gone to her lung to cause her to lose consciousness." The next test was an echocardiogram to evaluate left ventricular and right ventricular functions and valvular disorder which he says he tested due to her "history of syncope." He stated "Well, anytime anybody has a history of possible fainting, aortic stenosis comes to mind. Now she's a little young for aortic stenosis, but she's not totally out of the realm of having it-" (emphasis added) Although this test showed some cause for concern which led to additional testing, Dr. Lewis concluded "her heart was not a concern" but he ordered an echocardiogram just to be safe.

According to Dr. Gray and Dr. Shaneyfelt, Dr. Lewis should have exercised the same cautionary judgment regarding a possible infection based on Judith's current history of infection in her jaw and signs and symptoms that the infection was present and probably getting worse. I repeat again, Dr. Lewis implemented his plan in every respect except one, he did not give Judith any antibiotics to combat a possible infection (or continued infection) despite his stated plan to do so . Dr. Shaneyfelt chronicles in his affidavit medical evidence that he says indicated Judith had an infection and established a basis for administering antibiotics to her and he does not limit the need for antibiotics to a diagnosis of sepsis. The failure to give her antibiotics, says Dr. Shaneyfelt, was malpractice in these circumstances. Dr. Gray's testimony indicates the same. Dr. Lewis admits he was made fully aware that Judith had been lying in bed ill for a week before coming to the ER with an infection for which she had been on antibiotics. In Dr. Gray's words, Dr. Lewis should have covered his bases with administration of a broad spectrum antibiotic for the same rationale that Dr. Lewis says he performed all of the tests listed in his plan of treatment, i.e. it was prudent to do so and is was indicated by Judith's current medical history, her physical exam upon admit to the ER at St. Patrick, and her initial blood work. Dr. Shaneyfelt's affidavit, Judith's medical record, and Dr. Lewis' own testimony indicate Dr. Lewis had more reason to follow his own plan of treatment to administer antibiotics and monitor the infection site than he did to perform several of the tests he thought best to do for good measure.

Dr. Lewis testified he would not have released Judith before knowing the result of all of these tests. Good medicine indeed. But, I repeat here, the record shows that Dr. Lewis released Judith many hours before the results of her last Hematology and other lab work were ready and the record shows that every category on her Hematology report was abnormally high or low and every category on her Blood Chemistry work was abnormally high or low. Thus, despite the fact that the litany of tests laid out in Dr. Lewis' plan of treatment offered no explanation for Judith's condition Dr. Lewis released Judith having never given her any antibiotics as planned and without giving her any to take at home. According to Dr. Lewis, after he reviewed all of these test results, he concluded that the cause of her syncope or fainting episode and possible seizure was "syncope." But syncope is not a diagnosis for syncope! Dr. Lewis says he discharged Judith suspecting sleep apnea might be at the root of her problem but she would have to go for more testing to determine that at a later date. Thus, Dr. Lewis released Judith from the hospital without finding any answer to what he says were his two chief concerns, (1) would she suffer another seizure and (2) what caused the syncope/seizure. Dr. Lewis says he would not have released Judith before looking at all of the results of the tests ordered but he also admits he is unable to produce proof that he looked at those results before discharging Judith and says there is no indication in his progress notes to show he looked at the results prior to discharge .

Q. I'm looking for your progress notes with-showing that you looked at these test results before you discharged her-
A. They may not demonstrate that.
Q. Do any exist?
A. Not that I'm aware of.
Q. Did you write any?
A. No.

In his deposition he also says he "might have" looked at her test results at 12:50 "on the morning of the 25th," her date of discharge. He further testified that his discharge summary is the only document in the record that indicates he looked at the test results prior to discharge but Dr. Shaneyfelt disputes whether the document is actually a discharge summary. Dr. Lewis says that the document titled "Discharge summary" is in fact his discharge summary and that the date on it is a mistake. But Dr. Shaneyfelt says, as an expert witness, that he believes this to be a history and physical because it was dictated on the day of her admission to St. Patrick. Additionally, when asked in his deposition "When you discharged [Judith] what made you believe she didn't have sepsis?" Dr. Lewis answered "Because of her echocardiogram and her other tests I was convinced she had sleep apnea" But Dr. Lewis' alleged reliance on the various tests results as well as the final blood work is called into serious question by his own testimony to the effect that he can point to no charting or progress notes to show he looked at the test results before discharging Judith and the record shows her final Blood Chemistry and Hematology tests were not available until many hours after her discharge. All of this raises genuine issues of fact regarding the propriety of Dr. Lewis' care of Judith and relates to his credibility.

Contrary to the trial court's and majority's assertions Dr. Shaneyfelt's affidavit as a whole does not solely rely on the notion that Dr. Lewis diagnosed sepsis and failed to treat septicemia. A fair reading of the affidavit paints the picture that Dr. Lewis recognized Judith had an infection of the jaw, failed to treat that infection with antibiotics, and his failure to administer antibiotics "to cover the infection of her jaw," (which Dr. Lewis made part of his plan for treatment) "resulted in sepsis and death." According to Dr. Shaneyfelt this is a breach of the standard of care. His opinion is bolstered by Dr. Gray. This does not equate to the simple proposition that the trial judge and the majority rely on in granting summary judgment, i.e. that Shaneyfelt relied on the mistaken belief that Dr. Lewis diagnosed sepsis and failed to give antibiotics under such diagnosis. Shaneyfelt relies on the medical records to state his expert opinion that: (1) significant signs of infection of the jaw were present and noted by Dr. Lewis; (2) Dr. Lewis acknowledged these signs and the infection of the jaw which Dr. Lewis said at that time likely resulted from infection of the molar; (3) Dr. Lewis failed to follow his own stated plan of treatment to prescribe antibiotics; (4) the failure to prescribe any antibiotics to address the infection of the jaw "resulted in sepsis and death." Thus, Dr. Shaneyfelt's affidavit and the medical records relied on by him establish many genuine issues of material fact precluding summary judgment. Dr. Shaneyfelt states in his affidavit:

Dr. Lewis notes in the review of systems he documented in his "Discharge Summary" (though I believe this to be a history and physical since it was dictated the day of admission and not the day of discharge) that "they do report some fever and chills associated with infection in her jaw and molars ...". He goes on to note in his physical examination that Ms. Leblanc has "some swelling on her right face at the angle of the mandible ... has some slight erythema and is slightly indurated." He notes in the laboratory data section of this summary that the "white blood cells are 10.6 thousand" (which is elevated per the reference range on the laboratory report.) All this supports that the patient has an infection, likely of the jaw related to the molar infection . Dr. Lewis documents "E. Sepsis" in his note and under plans writes " 6. Antibiotics and monitoring for osteomyelitis and/or cellulitis of the right angle of the jaw. " Unfortunately, no antibiotics are prescribed by my review of the "Doctor's Orders" and the "MD Medication Administration Detail Report." Furthermore, Ms. Leblanc was discharged from the hospital on February 25, 2011 without any prescription for antibiotics ... Review of the "Discharge Home Medication List" reveals no antibiotics. It is part of training and normal standard practice of internists, family practitioners, and hospitalists to prescribe antibiotics for possible infection . According to the Death Certificate, Ms. Leblanc died on February 27, 2011 from "sepsis." Had appropriate antibiotics been given to Ms. Leblanc in a timely fashion she more likely than not would have survived this infection. She lost her chance for survival by failing to administer appropriate antibiotics . In summary, Ms. Leblanc was not given appropriate antibiotics to cover infection of her jaw which resulted in sepsis and death, a breach of the standard of care . This breach led directly to her death.

My reading of Dr. Shaneyfelt's affidavit coupled with my thorough review of the record leads me to conclude that Plaintiffs have met their burden to establish that there are many unresolved genuine issues of material fact that cannot be resolved on summary judgment.

Additionally, Judith died 40 hours after being sent home from St. Patrick and, according to Dr. Lewis, who signed her death certificate, the cause of her death was sepsis. It is very telling that when the ER doctor at Memorial telephoned Dr. Lewis about Judith he knew she had septicemia before even seeing her. This too, raises questions over the propriety of Dr. Lewis' "differential diagnosis" at St. Patrick and presents a genuine issue of fact as to his negligence in that regard. The trial judge and defendant say the mention of sepsis in Judith's medical records at St. Patrick was part of a "differential diagnosis" not the actual final diagnosis of Judith's problem. But the final diagnosis allegedly arrived at by Dr. Lewis is not a diagnosis at all. According to Dr. Lewis, as reflected in the medical records, his "differential diagnosis," which he identifies in the medical records as his "secondary diagnosis" initially included: "(1)Rheumatoid arthritis, (2) Esophageal reflux, (3) Chronic pulmonary heart disease, (4) swelling of limb, (5) unspecified septicemia, (6) Sepsis, (7) disorder of teeth and supporting structures, and (8) Obstructive sleep apnea." According to the defense, given all of the clinical symptoms, lab reports, and charted stats of this patient, and after considering all of these possibilities as the cause of Judith's being admitted to the hospital foaming at the mouth, incoherent, feverish, with an abnormal white blood cell count, and elevated heart rate, Dr. Lewis concludes that his "Primary Diagnosis" is "syncope and collapse," yet his plan for treatment included the need to administer antibiotics and to monitor the patient's jaw infection. Dr. Sahneyfelt's affidavit and the medical records he relied on as the basis for his expert opinion raise genuine issues of material fact concerning Dr. Lewis' negligence in both his diagnosis and treatment of his patient, all of which precludes summary judgment. For these reasons I respectfully dissent.

      Elwin Leblanc, Ms. Leblanc's father, who initiated the claim against the Louisiana Patient's Compensation Fund, passed away on March 2, 2015.

      Hematology
      WBC 10.6 H (4.5-10.0)
      HCT 47.1 H (37.0-47.0)
      PLT 126 L (130-400)
      MCH 32.7 H (27-32)
      NEUT 7.4 H (1.4-7.0)
      MON 0.9 H (0.1-0.8) (H=high; L=low)
      Chemistry
      Sodium 132 L
      Chloride 95 L
      BUN 28.0 H
      Calcium 8.4 L
      Bili Total 2.2 H
      AST/SGOT 61 H
      ALT /SGPT 175 H
      LD 405 H
      Albumin 3.4 L
      ALKP 141 H (H=high; L =low)

      Two other tests were performed on Judith but these were not ordered by Dr. Lewis. One was a chest x-ray done in the ER when she first arrived, it was negative. There was also a CAT scan of the brain done in the ER and it was negative.


author: KYZAR, Judge.

text:
    Sandy D. SMITH and Kevin D. Smith v. Leslie Ray SELF, et al.
    2017-725
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018
    David R. Lestage, Hall, Lestage & Landreneau, P. O. Box 880, DeRidder, LA 70634, (337) 463-8692, COUNSEL FOR PLAINTIFFS/APPELLEES: Sandy D. Smith, Kevin D. Smith
    P. Michael Maneille, 710 West Prien Lake Road, Suite 203, Lake Charles, LA 70601, (337) 474-4444, COUNSEL FOR DEFENDANT/APPELLANT: Michael Melvin Smith, Administrator of the Succession of Arlene L. Cline
    David L. Wallace, P. O. Box 489, DeRidder, LA 70634, (337) 462-0473, COUNSEL FOR DEFENDANT/APPELLEE: Leslie Ray Self
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.
   KYZAR, Judge.

The defendant, Michael Melvin Smith, as Administrator of the Succession of Arline L. Cline, appeals from a trial court judgment dismissing a money judgment based on prescription and ordering that its reinscription in the mortgage records be cancelled and erased. For the following reasons, we reverse and render judgment.

DISCUSSION OF THE RECORD

On May 9, 2016, the plaintiffs, Sandy and Kevin Smith, filed a petition to quiet title and partition immovable property, naming as defendants, Michael Melvin Smith, as the Administrator of the Succession of Arline L. Cline, and Leslie Ray Self. The plaintiffs own an undivided interest, along with Leslie Ray Self, in two tracts of property located in Beauregard Parish, which were previously owned by Artie Ray Self (Mr. Self) and his first wife, Myrtle Faye Self. Mr. Self initially inherited a one-ninths interest in the two tracts, and he and Myrtle then purchased the remaining eight-ninths interest in the property from his siblings. At Myrtle's death, their four children each inherited a one-quarter interest of her four-ninths interest in the two tracts. All but the one-quarter interest owned by Leslie Ray Self was acquired by the plaintiffs. The plaintiffs also acquired Mr. Self's five-ninths interest in the second tract, which he had donated to a third person. All of his five-ninths interest in the first tract was inherited by their four children following his death, and the plaintiffs have acquired all but the one-quarter interest owned by Leslie Ray Self.

This matter arises because of a judicial mortgage filed in the Beauregard Parish mortgage records, which stems from a November 28, 1989 judgment between Mr. Self and his second wife, Arline Cline Self (Ms. Cline), in which the trial court awarded Ms. Cline $20,000.00 to settle her community property claims. This judgment, which was rendered in Vernon Parish, was filed on June 7, 1990, in the mortgage records of the parish of Mr. Self's domicile, Beauregard Parish, where the two tracts of property are located. The judgment was revived in Vernon Parish on April 14, 2000, and the revived judgment was filed in the Beauregard Parish mortgage records that same day. Ms. Cline died intestate on November 13, 2006, and Mr. Self died intestate on February 1, 2006. On April 8, 2010, Ms. Cline's succession was opened in Vernon Parish, and her son, Michael Melvin Smith (Mr. Smith), was appointed administrator of the succession. On that same day, Mr. Smith filed an ex parte motion in Vernon Parish to revive the November 28, 1989 money judgment that had previously been revived on April 14, 2000. Mr. Smith noted in his motion that no succession had been opened for Mr. Self, and he requested that a curator ad hoc be appointed to notify Mr. Self's unopened succession. A judgment reviving the November 28, 1989 judgment was rendered on April 8, 2010. The judgment further appointed an attorney as curator ad hoc to notify Mr. Self's unopened succession of the judgment. The April 8, 2010 judgment of revival was filed in the Beauregard Parish mortgage records that same day.

The plaintiffs alleged that the revived November 28, 1989 judgment created a cloud on their title to the two tracts of property and that Mr. Smith failed to comply with La.Civ.Code art. 3121, when he failed to have an administrator appointed to represent Mr. Self's unopened succession before the judgment was revived. Thus, they asked that the revived judgment be cancelled and erased from the Beauregard Parish mortgage records. In response, Mr. Smith filed declinatory exceptions of lack of subject matter jurisdiction and improper venue, a dilatory exception of prematurity, and a peremptory exception of res judicata. Mr. Smith's exceptions were adopted by Leslie Ray Self. Following an August 25, 2016 hearing, the trial court rendered written reasons for judgment, denying all of the exceptions.

Thereafter, Mr. Smith answered the plaintiffs' petition and moved for summary judgment. In support of his motion, Mr. Smith filed a copy of the February 6, 1985 judgment of divorce between Mr. Self and Ms. Cline; a copy of the November 28, 1989 community property judgment, in which the trial court awarded Ms. Cline $20,000.00 in settlement of her community property claims; a copy of the plaintiffs' petition to quiet title and partition immovable property; a copy of Mr. Smith's answer; a copy of the April 14, 2000 judgment reviving the November 28, 1989 judgment, which was filed in the Beauregard Parish mortgage records that same day; a certificate from the Beauregard Parish Clerk of Court, dated October 17, 2016, indicating that Mr. Self's succession was never opened; a copy of Mr. Smith's ex parte motion for revival of judgment and the April 8, 2010 judgment of revival, which was filed that same day in the Beauregard Parish mortgage records; a copy of the Vernon Parish court documents appointing Mr. Smith as the administrator of the Succession of Arlene L. Cline and listing the $20,000.00 money judgment as succession property; and copies of portions of the plaintiffs' petition and Mr. Smith's answer, which indicate that Mr. Smith did not open Mr. Self's succession prior to the 2010 reinscription of the November 28, 1989 judgment. The plaintiffs neither introduced nor opposed any of Mr. Smith's exhibits in opposition to his motion for summary judgment; however, they noted that Mr. Smith's exhibits were not appropriate support for a motion for summary judgment.

Following a February 8, 2017 hearing, the trial court denied Mr. Smith's motion for summary judgment, finding that the exhibits introduced by him in support of his motion failed to comply with La.Civ.Code art. 966(A)(4), and that there was a genuine issue of material fact as to whether the judgment was for alimony, which would first have to be made executory before it could be filed in the Beauregard Parish mortgage records. Following the trial court's denial of Mr. Smith's motion for summary judgment, the matter proceeded straight to a trial on the merits. At the close of evidence, the trial court ordered a partition by licitation of the two tracts of property, but took the judicial-mortgage issue under advisement. Thereafter, on February 21, 2017, the trial court issued written reasons for judgment, finding that Mr. Smith failed to comply with La.Code Civ.P. art. 3121, by not having an attorney appointed as administrator of Mr. Self's unopened succession, and by not having the judgment first made executory before inscribing it in the Beauregard Parish mortgage records. Thus, the trial court held that the November 28, 1989 judgment was prescribed and ordered that the April 8, 2010 reinscription of the revived judgment be cancelled and erased from the Beauregard Parish mortgage records. Written judgments were rendered by the trial court on March 24, 2017, on its denial of the motion for summary judgment and its findings from the trial on the merits. It is from these judgments that Mr. Smith appeals.

On appeal, Mr. Smith raises fifteen assignments of error:

1. For the [Thirty-Sixth] Judicial District Court of Beauregard Parish to properly adjudicate the cloud on title issue alleged against the [Thirtieth] Judicial District Court Vernon Parish community property money judgment recorded in the Beauregard Parish public records, it must first determine whether this judgment being attacked in its forum is either a relative nullity or absolute nullity.
2. Despite the trial court observing in the August 25, 2016 exception hearing it must focus upon the proper forum for filing a nullity action-Beauregard Parish or Vernon Parish-it erred in its failure to do so prior to deciding the revived judgment is a cloud on title.
3. The trial court erred in exercising its subject matter jurisdictional authority in its venue to cancel a judgment inscription, without first considering and deciding the nullity issue related to a judgment rendered by a district court in a different venue.
4. The [Thirty-Sixth] Judicial District Court erred in denying the appellant's declinatory exceptions of lack of subject matter jurisdiction and improper venue.
5. The [Thirty-Sixth] Judicial District Court trial court erred in prematurely cancelling a judgment rendered in a collateral venue, without the [Thirtieth] Judicial District Court, which rendered the judgment, finding it was a relative [sic] null judgment.6. The [Thirty-Sixth] Judicial District Court erred in denying the appellant's dilatory exception of prematurity.
7. The trial court erred in finding genuine issues of material fact existed between the appellees' cloud on title allegations and the civil procedure appellant followed in his 2010 judgment revival action, thus precluding summary judgment in appellant's favor, and requiring a trial on the merits.
8. The trial court erred in finding the documents filed in support of appellant's summary judgment motion did not meet the criteria required to support the motion.
9. The trial court erred in denying the appellant's summary judgment motion and finding a trial on the merits was necessary to adjudicate the cloud on title issue pertaining to the proper civil procedure for reviving a money judgment inscription in the Beauregard Parish public records.
10. The trial court erred in finding the subject money judgment was prescribed in 2010 and should be cancelled and erased in Beauregard Parish for failure to comply with procedural law on reviving a judgment.
11. The trial court erred in finding the proper, exclusive revival procedure required opening the deceased judgment debtor's succession, placing it under administration and appointing an administrator to serve with compensation after posting security.
12. The trial court erred in finding the $20,000 awarded to the judgment creditor in the Self partition lawsuit judgment was not the spouse's community property interest and instead, it was an alimony award.
13. The trial court erred in finding a reference to alimony payments continuing was an issue related to creating a judicial mortgage, and this reference to alimony made an executory clause necessary.
14. The trial court erred in finding a judgment clause referencing continuing monthly alimony was the monetary amount being revived.
15. The trial court erred in finding the 2010 revival judgment, without an executory clause, did not constitute a valid revived judgment, and it is proper to order its reinscription be cancelled and erased.

Since we find merit in the last five assignments of error, we will address only those assignments.

OPINION

Upon review, an appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La.1993) ; Rosell v. ESCO , 549 So.2d 840 (La.1989). However, questions of law involving the correct interpretation of legislation are reviewed de novo , without deference to the legal conclusions of the trial court. Durio v. Horace Mann Ins. Co. , 11-84 (La. 10/25/11), 74 So.3d 1159.

A money judgment is a judgment "which orders the payment of a sum of money and which may be executed under a writ of fieri facias" pursuant to La.Code Civ.P. art. 2291. Succession of Moody , 306 So.2d 869, 874 (La.App. 1 Cir. 1974), writ denied , 310 So.2d 639 (La.1975). In Jones v. City of New Orleans , 09-369, pp. 4-5 (La.App. 4 Cir. 9/2/09), 20 So.3d 518, 522, writ denied , 09-2156 (La. 12/18/09), 23 So.3d 947, the second circuit held that "a workers' compensation judgment awarding disability benefits into the future ... is not a money judgment for a sum certain subject to the revival requirements of La. C.C. art. 3501."

Pursuant to La.Civ.Code art. 3501, a money judgment is "prescribed by the lapse of ten years" from either its date of signing or the date it becomes final following appeal. A judgment may be revived as often as needed by an interested party pursuant to the procedure provided by La.Code Civ.P. art. 2031, and a revived judgment is subject to the same ten year prescriptive period. La.Civ.Code art. 3501.

The revival procedure provided by La.Code Civ.P. art. 2031, is as follows:

A. A money judgment may be revived at any time before it prescribes by an interested party by the filing of an ex parte motion brought in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the prescriptive period applicable to the judgment. The motion to revive judgment shall be accompanied by an affidavit of the holder and owner of the judgment, stating that the original judgment has not been satisfied. A judgment shall thereupon be rendered reviving the original judgment. No citation or service of process of the motion to revive shall be required. The court may order the judgment debtor to pay additional court costs and reasonable attorney fees in connection with the judgment revival action. Notice of signing of the judgment of revival shall be mailed by the clerk of court to the judgment debtor at his last known address as reflected in the suit record.
B. At any time after the signing of the judgment of revival, the judgment debtor may, by contradictory motion, have the judgment of revival annulled, upon showing that the judgment which has been revived was in fact satisfied prior to the signing of the judgment of revival. If the judgment debtor proves that the judgment has been satisfied prior to the filing of the motion to revive the judgment, the holder or owner of the judgment shall pay all court costs, fees, and attorney fees incurred by the judgment debtor in opposing the ex parte order of revival and the cancellation of the judgment from the mortgage records.

Article 2031, as amended by 2003 La. Acts No. 806, § 1 and 2005 La. Acts No. 2005, § 1, changed the procedure required for the revival of a money judgment, which had previously provided:

A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.
The judgment debtor shall be made a defendant in the proceeding to revive the judgment, unless he is dead, in which event his legal representative or legal successor shall be made a defendant.
A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.

Thus, as noted in La.Code Civ.P. art. 2031(A) (as amended), it is no longer necessary that the interested party have the judgment debtor served with citation or service of process prior to obtaining a judgment of revival. Rather, it is after the judgment of revival is rendered that the judgment debtor is given the opportunity to challenge the revived judgment by contradictory motion in order to prove that the judgment was already satisfied.

In finding the April 8, 2010 judgment of revival invalid, the trial court stated the following in its written reasons:

The Court finds that the last reinscription granted on April 8, 2010, in the 30th Judicial District Court, Parish of Vernon, State of Louisiana, suit number 37412B, was after the death of Artie Self on February 1, 2006. The curator was assigned to "notify" the Unopened Succession of Artie Ray Self on February 1, 2006. However, there was no attorney appointed as administrator of the vacant and unopened succession, as required by La. C.P.P. [sic] Article 3121. Notification was impossible.
Additionally, once the reinscription occurred in Vernon Parish, a certified copy was filed in the records of Beauregard Parish Clerk of Court under instrument No. 491212 (MOB 615 FOLIO 454) without having made the money judgment executory.
The Court finds the Judgment at issue has prescribed for failure to comply with the applicable law as to revival of judgment. The Beauregard Parish Judgment filed under instrument No. 491212; and the reinscription ordered as stated in the April 8, 2010, Judgment are to be cancelled and erased, removing the Judgment as a cloud on the title of subject property.

After reviewing the matter, we find that the trial court legally erred by interpreting La.Code Civ.P. art. 2031 to first require Mr. Smith to appoint an administrator to represent Mr. Self's unopened succession, pursuant to La.Code Civ.P. art. 3121, before obtaining a judgment reviving the November 28, 1989 judgment. Although the trial court did not expressly state such, it, in effect, found that the April 8, 2010 judgment of revival was an absolute nullity based on Mr. Smith's failure to first have a succession administrator appointed to represent Mr. Self's unopened succession.

The annulment of a judgment for vices of form may be collaterally attacked at any time, if it is rendered:

(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.

La.Code Civ.P. art. 2002.

However, based on the plain language of La.Code Civ.P. art. 2031, as amended, the revival procedure has been simplified so that citation and service of process on the defendant is no longer necessary in order to obtain a judgment of revival. Now, the only notice required is by mailing notice of the revived judgment after the fact to the last known address of the judgment debtor, as shown in the suit record. Thus, actual notice of the revived judgment is not a requisite of La.Code Civ.P. art. 2031. Accordingly, we find that the April 8, 2010 judgment of revival was not absolutely null as service of process against Mr. Self's unopened succession was not required by law in order for Mr. Smith to successfully revive the November 28, 1989 money judgment.

In this instance, Mr. Smith took the added step of having an administrator appointed to notify Mr. Self's unopened succession of the April 8, 2010 revived judgment. Louisiana Code of Civil Procedure Article 5091 provides that "[t]he court shall appoint an attorney at law to represent the defendant, on the ... ex parte written motion of the plaintiff" if the trial court "has jurisdiction over the person or property of the defendant ... and the defendant is" "[d]eceased and no succession representative has been appointed." La.Code Civ.P. art. 5091(A)(1)(c). Despite the Thirtieth Judicial District Court's action of appointing an attorney to notify Mr. Self's unopened succession and ordering the Vernon Parish Clerk of Court to mail notice of the revived judgment to Mr. Self's last known address, the trial court noted that "[n]otification was impossible." However, we note that even if there was a legal necessity to proceed against an attorney appointed as succession administrator of the estate of the judgment debtor, the Thirtieth Judicial District Court, located in Vernon Parish, lacked jurisdiction over Mr. Self's unopened succession, which was located in Beauregard Parish. By appointing an attorney for the limited purpose of notifying Mr. Self's unopened succession and by having notice of the judgment mailed to Mr. Self's last known address, the trial court ensured that the judgment debtor, Mr. Self's unopened succession, received the only notice required by La.Code Civ.P. art. 2031.

We further find that the trial court erred in finding that Mr. Smith was first required to have the 2010 revived judgment made executory in Beauregard Parish before it could be recorded into the mortgage records, pursuant to La.R.S. 9:322 and 9:323. The judgment at issue is for a certain amount of money, $20,000.00; thus, it is a money judgment for which Mr. Smith could create a judicial mortgage by filing it into the Beauregard Parish mortgage records, where Mr. Self's property was located. La.Civ.Code arts. 3299 and 3300.

Although the November 28, 1989 judgment stated that the permanent alimony, previously awarded to Ms. Cline in the February 6, 1985 judgment of divorce, would continue up until the time Mr. Self "shall pay the sum reflected herein to [Ms. Cline] in full settlement of all community claims of the parties[,]" it is the judgment for the certain amount of $20,000.00 that Mr. Smith revived and then recorded in the Beauregard Parish mortgage records as a judicial mortgage. We do not read the November 28, 1989 judgment as allowing Mr. Self to pay off what was, in effect, a community property equalization payment of $20,000.00 through a payment plan of $200.00 per month. Rather, we read the judgment as allowing the permanent alimony received by Ms. Cline to continue up until such time that she had the resources to support herself, after she received the $20,000.00 payment from Mr. Self.

We note that if Mr. Self's unopened succession is entitled to any credits towards the $20,000.00 money judgment, that issue could be taken up by contradictory motion in Vernon Parish in accordance with La.Code of Civ.P. art. 2031(B).

Accordingly, we reverse the trial court judgment and render judgment finding that the November 28, 1989 judgment was properly revived by the April 8, 2010 judgment of revival.

DISPOSITION

For the foregoing reasons, the judgment of the trial court finding that the November 28, 1989 judgment had prescribed and ordering the cancellation and erasure of the judgment and the April 8, 2010 reinscription from the Beauregard Parish mortgage records is reversed; and judgment is rendered in favor of Michael Melvin Smith, as Administrator of the Succession of Arlene L. Cline, finding that the November 28, 1989 judgment was properly revived by the April 8, 2010 judgment of revival. Costs of appeal are assessed against the plaintiffs, Sandy D. Smith and Kevin D. Smith.

REVERSED AND RENDERED.

      Louisiana Code Civil Procedure Article 3121 provides:
      When no qualified person has petitioned for appointment as administrator of a vacant succession within three months of the death of the deceased, the court may appoint an attorney at law as administrator thereof and set his compensation. Said attorney shall be selected, on a rotating basis, from a list of attorneys currently practicing in the parish in which the succession is to be opened.
      The attorney shall be required to furnish security as required by law. Otherwise, all of the provisions of law relating to the administrator of a succession apply to the attorney when appointed administrator of a vacant succession.
      This article does not apply to any parish for which a public administrator has been appointed.

      Louisiana Revised Statutes 9:322 provides:
      It is unlawful for any recorder of mortgages in the state of Louisiana to record a judgment or order for spousal or child support by any court, and if such a judgment or order is recorded, it shall not have the effect of a judicial mortgage and shall be forthwith canceled by the clerk upon demand, in writing, by the party against who it is rendered, without charge, except as provided in R.S. 13:4291.
      Louisiana Revised Statutes 9:323 provides:
      A recorder of mortgages shall record, at the request of any person in interest, a judgment or order for spousal or child support for the amount that the court has decreed to be due and executory, which judgment or order shall be a judicial mortgage in the amount only found to be due, together with costs and interest.

      We note that the copy of the November 28, 1989 judgment, which was filed in the Beauregard Parish mortgage records, contains the following inscription, signed by a deputy clerk of court:
      Cancelled and erased the 28th day of September 1990 by virtue of Sheriff's Deed # 358743 + 358744 filed the 25th day of September 1990 authorizing and directing cancellation hereof only insofar as the property therein described is affected.