author: WILLIAMS, C.J.

text:
    Misty PRICE on BEHALF OF Her Minor Daughter, Tamia PRICE, Plaintiffs-Appellants v. MINDEN MEDICAL CENTER and Dr. Michael Ulich, Defendants-Appellees
    No. 52,499-CA
    Court of Appeal of Louisiana, Second Circuit.
    February 27, 2019
    SINGLETON LAW FIRM, By: W. James Singleton, Shreveport, Brittany J. McKeel, Erica N. Jackson, Counsel for Appellants
    McNEW, KING & LANDRY, LLP, By: Brady D. King, II, Monroe, Counsel for Appellee-Intervenor, Louisiana Patient's Compensation Fund
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   WILLIAMS, C.J.

The plaintiff, Misty Price, on behalf of her minor daughter, Tamia Price, appeals a district court judgment granting partial summary judgment and a motion to dismiss filed by the defendant, the Louisiana Patient's Compensation Fund. The plaintiff also appeals the trial court's denial of her motion for a new trial. For the following reasons, we affirm.

FACTS

On September 5, 2009, three-year-old Tamia Price was experiencing nausea, vomiting and abdominal pain. Her mother, Misty Price ("the plaintiff"), took Tamia to the emergency room at Minden Medical Center ("MMC"). When they arrived, Tamia was examined by Dr. Michael Ulich, who noted that her abdomen was not tender and laboratory tests were within normal range. Dr. Ulich diagnosed Tamia with gastritis and discharged her with a prescription for Phenergan.

Tamia's condition did not improve; the plaintiff took her back to MMC on September 8, 2009. Tamia was experiencing abdominal pain, nausea, vomiting, and she had a fever of 101 degrees. Tamia was again examined by Dr. Ulich, who noted that she had "slight abdominal distension." She was admitted to the hospital with a diagnosis of dehydration and abdominal pain. She underwent a CT scan of her abdomen, which indicated that she had "questionable right appendicitis."

The following day, Tamia's temperature rose to 103 degrees, and her heart rate and respiratory rate were markedly elevated. Dr. Iram Zando examined Tamia and noted that she had rebound tenderness of the abdomen. Tamia was transferred to Sutton Children's Hospital at Christus Schumpert in Shreveport. After reviewing Tamia's CT scan, the physicians determined that she had a perforated appendix with the presence of gangrene. Tamia underwent emergency surgery to remove her appendix and the resulting infection. Following the surgery, Tamia's condition deteriorated. As a result of complications, Tamia suffered a cerebral vascular accident and left-sided paralysis.

On August 24, 2010, the plaintiff, acting on behalf of Tamia, filed a medical malpractice complaint with the Louisiana Patient's Compensation Fund ("PCF") requesting a Medical Review Panel ("MRP") proceeding pursuant to the Louisiana Medical Malpractice Act. The plaintiff alleged that MMC, its staff and Dr. Ulich breached the applicable standard of care. On June 25, 2012, the MRP rendered a decision opining that "the evidence does not support the conclusion that the defendants, Minden Medical Center and its staff and Dr. Michael Ulich, failed to meet the applicable standard of care as charged in the complaint."

On October 3, 2012, the plaintiff filed a lawsuit against MMC and Dr. Ulich alleging that the defendants failed to provide adequate medical care to Tamia. More specifically, the plaintiff alleged that Dr. Ulich and MMC failed to timely diagnose and treat Tamia's condition, failed to properly administer medical treatment, failed to adequately supervise personnel providing medical services, and failed to provide reasonable medical services under the circumstances.

Dr. Ulich filed a motion for summary judgment; the motion was granted on February 25, 2013, and the plaintiff's claims against Dr. Ulich were dismissed. Thereafter, the plaintiff reached a settlement with MMC for $ 50,000, without MMC admitting fault. On January 6, 2015, the district court signed a judgment of dismissal, dismissing with prejudice all claims against MMC and reserving "all rights for excess damages [the plaintiff] may have in relation to the Louisiana Patients' Compensation Fund." Thereafter, PCF intervened and denied all claims with regard to the plaintiff's alleged entitlement to excess damages.

On July 19, 2017, the plaintiff filed a notice of deposition and subpoena duces tecum seeking to conduct a deposition of Dr. Zando. In response, PCF filed a motion in limine to prohibit the deposition of Dr. Zando, arguing that she was not a party to the lawsuit. Thereafter, the plaintiff filed a motion for declaratory judgment, seeking a judgment "declaring that the sole issues before the Court are those of liability of Plaintiff's right to seek excess damages from the [PCF] stemming from the acts/omissions of Dr. Iram Zando and [MMC]."

On September 22, 2017, PCF filed a motion for summary judgment, arguing that the plaintiff had failed to "identify any expert witness that may testify concerning the standard of care owed by the nursing staff of MMC to Tamia Price during the time period in question." Attached to the motion was the opinion of the MRP and an affidavit executed by the attorney chairman of the MRP.

The plaintiff opposed the motion for summary judgment, attaching unsworn letters/reports from two emergency room physicians, Dr. AnhVu Nguyen and Dr. Kayur Patel. In his report, Dr. Nguyen opined that Dr. Zando breached the applicable standard of care as follows: failed to timely order a surgical consult; failed to timely administer intravenous fluids; and failed to administer antibiotics. Dr. Patel opined that MMC and its staff breached the applicable standard of care by failing to timely diagnose Tamia and by causing a "significant delay in obtaining a specialty consult which led to a further delay in the transfer to the tertiary hospital." Additionally, the plaintiff attached an affidavit from one of her attorneys, Brittany J. McKeel, who attested that she retained Dr. Nguyen and Dr. Patel to testify as expert witnesses. She further attested that she had received the reports from Dr. Nguyen and Dr. Patel, which were based on the medical records and treatment received by Tamia.

A hearing to consider the motion for declaratory judgment, motion in limine, and motion for summary judgment was conducted on October 31, 2017. During the hearing, the plaintiff withdrew the motion for declaratory judgment in open court. At the conclusion of the hearing, the district court granted PCF's motion in limine, in part, allowing the plaintiff to depose Dr. Zando, but ordering that her testimony be limited to that of a fact witness. With regard to the motion for summary judgment, the court heard arguments from counsel for both parties. During the hearing, counsel for the plaintiff offered a 2013 affidavit executed by Dr. Nguyen, which had been filed in opposition to Dr. Ulich's motion for summary judgment. Thereafter, the court placed the matter under advisement and requested that both parties provide the court with case law with regard to the admissibility of an affidavit from an attorney of record.

On November 28, 2017, the court granted partial summary judgment in favor of PCF, stating:

The Court agrees with MMC and PCF that the unsworn reports of Dr. Nguyen and Dr. Patel are not proper summary judgment evidence under La. C.C.P. art. 966, and this defect is not cured by the Affidavit of Brittney McKeel or the Affidavit of Dr. Nguyen filed in opposition to another motion for summary judgment. Although the affidavit of Dr. Nguyen that was previously filed in the suit record and was brought forth by Plaintiff at the hearing is not sufficient to authenticate the report filed by Plaintiff, the Affidavit itself is competent evidence and the Court will consider it as a supplemental affidavit under La. C.C. art. 967.
MMC and PCF clearly provide evidence that Plaintiff lacks factual support for the claim that the nursing staff of MMC failed to meet the applicable standard of care in rendering care to Tamia Price. MMC and PCF submitted the Opinion and Written Reasons of the medical review panel which unanimously found MMC and its staff met the applicable standard of care. The only evidence submitted by Plaintiff to establish the existence of a genuine issue of fact is the 2013 Affidavit of Dr. Nguyen and the Affidavit of Brittany McKeel.
The Affidavit of Brittany McKeel is insufficient to establish the existence of a genuine issue of material fact because she only attest [sic] to the existence of expert reports; Brittany McKeel cannot attest to the authenticity of the reports or the truthfulness and competence of the reports. Additionally, the 2013 Affidavit of Dr. Nguyen is insufficient to establish the existence of a genuine issue of material fact because Dr. Nguyen does not attest to the standard of care provided by the nursing staff at MMC; Dr. Nguyen only attests to the standard rendered by Dr. Zando and Dr. Ulich.

Thereafter, on February 5, 2018, the district court signed the judgment granting partial summary judgment in favor of PCF. The court concluded that "any and all claims based upon, arising from, or related to the provision or lack of provision of nursing care to Tamia Price are hereby dismissed with all prejudice at plaintiff's sole cost."

On April 3, 2018, PCF filed a "motion for dismissal of the entire suit," arguing that the plaintiff's lawsuit should be dismissed because the district court had "previously entered several pretrial orders which disposed of and dismissed several claims and/or theories of recovery or which prohibited certain evidence [from] being offered at the trial of this matter." Specifically, PCF argued that Dr. Ulich had been dismissed from the lawsuit via summary judgment, MMC had settled all claims against it, and the plaintiff's amended petition to add Dr. Zando to the lawsuit had been dismissed. Therefore, according to PCF, the only remaining claims that could be urged by the plaintiff could only arise from the care provided by the nurses at MMC, and those claims had been dismissed by partial summary judgment rendered on November 28, 2017.

In response to the motion to dismiss, on April 12, 2018, the plaintiff filed a motion to compel discovery, arguing that some of the responses to discovery provided by PCF were "incomplete and/or insufficient." PCF responded to the motion, asserting that it had complied with the plaintiff's requests for responses to discovery to the best of its ability. According to PCF, some of the information sought by the plaintiff, i.e. , job titles of personnel and policy and procedure manuals, should have been requested from MMC, rather than from PCF.

On April 13, 2018, the plaintiff filed a motion for a new trial with regard to the motion for summary judgment that had been granted on February 5, 2018. By this time, the plaintiff had obtained sworn affidavits from Dr. Nguyen and Dr. Patel. The affidavits were attached to the motion for new trial. On April 19, 2018, the plaintiff also filed an opposition to PCF's motion to dismiss the lawsuit.

Following a hearing conducted on May 1, 2018, the district court denied the plaintiff's motion for new trial and concluded that the motion to compel was moot. The district court stated:

The new trial motion has been filed, and my understanding is the motion for new trial sets out saying, "Judge, take another look at your decision originally and reverse that." I don't see any new evidence that's come into light for the motion for new trial, and based upon the pleadings in this matter, I'm going to deny the motion for a new trial[.]
* * *
I don't see anywhere in the pleadings or in the judgments that allows any claims against [MMC] to proceed, either in the theory of negligence or in a malpractice [claim]. As I review the judgment that was rendered, when [MMC] got out, they got out, period. It reserved the excess claims against [PCF].
* * *
I think if you're trying to assert that [MMC] did anything wrong, that when I go back to the judgment I just showed you, that January - recorded January 5th of 2015 * * * I think all claims against * * * [MMC] were resolved in that resolution and that dismissal.
* * *

The court also granted PCF's motion to dismiss the lawsuit.

The plaintiff appeals.

DISCUSSION

The plaintiff contends the district court abused its discretion in denying her motion for a new trial. According to the plaintiff, the court granted PCF's motion for summary judgment and sustained the motion in limine with regard to Dr. Zando's testimony on the same day. The plaintiff asserts that summary judgment is inappropriate because she was not afforded a reasonable opportunity to obtain the testimony of Dr. Zando, a "crucial fact witness." The plaintiff also asserts that, at the very least, the district court should have continued the hearing on the motion for summary judgment to allow her to depose Dr. Zando.

A new trial on all or part of the issues, or for reargument only, may be granted upon contradictory motion of any party or the court on its own motion. La. C.C.P. art. 1971. The grant of a new trial is mandatory (1) when the verdict or judgment appears contrary to the law and evidence, (2) when a party has discovered new evidence important to the cause which he could not have obtained prior to or during trial, or (3) when the jury has been bribed or behaved improperly so that impartial justice has not been done. La. C.C.P. art. 1973. Additionally, a new trial may be granted if, in the court's discretion, there are good grounds therefor. La. C.C.P. art. 1974.

The standard of appellate review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is the "abuse of discretion" standard. Alcorn v. Duncan , 49,964 (La. App. 2 Cir. 8/26/15), 175 So.3d 1014, writ denied , 2015-1929 (La. 11/20/15), 180 So.3d 1288 ; Jones v. LSU/EA Conway Med. Ctr. , 45,410 (La. App. 2 Cir. 8/11/10), 46 So.3d 205. Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. The word "arbitrary" implies a disregard of evidence or of the proper weight thereof. A conclusion is "capricious" when there is no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Alcorn , supra ; Jones , supra . Although a reviewing court defers to reasonable decisions within the trial court's discretion, a decision based upon an erroneous interpretation or application of the law, rather than a valid exercise of discretion, is not entitled to such deference. Alcorn , supra ; Jones , supra .

As stated above, the plaintiff's argument with regard to the motion for new trial was based upon her assertion that the district court erred in granting summary judgment in favor of PCF.

A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the district court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880.

At the time this lawsuit was filed, La. C.C.P. art. 966 provided, in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed.
* * *
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
* * *
B. (2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
* * *
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) 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. D. The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.
* * *

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764.

When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B) ; Foster v. Patwardhan , 48,575 (La. App. 2 Cir. 1/22/14), 132 So.3d 495, writ denied , 2014-0614 (La. 4/25/14), 138 So.3d 1233. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall , 2003-1488 (La. 4/23/04), 874 So.2d 131 ; Foster , supra .

In ruling on a motion for summary judgment, the district judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett , supra . Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 2000-2507 (La. 12/8/00), 775 So.2d 1049 (per curiam).

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794(A). Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002 ; Samaha v. Rau , supra ; Marenghiv. Louisiana Med. Mut. Ins. Co. , 46,032 (La. App. 2 Cir. 4/13/11), 62 So.3d 847.

In Pfiffner v. Correa , 94-0924, 94-0992 (La. 10/17/94), 643 So.2d 1228, the Louisiana Supreme Court stated:

The jurisprudence has also recognized that there are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence.
* * *
Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794's requirements without medical experts[.]

Id. at 1233-34 (internal citations omitted).

In the instant case, the plaintiff does not contend the defendants committed an "obviously negligent" act. Rather, the plaintiff contends the evidence presented - (1) Dr. Nguyen's 2013 affidavit (which was in the record in conjunction with a previous motion for summary judgment, but was not attached to the plaintiff's opposition to the 2017 motion for summary judgment) and (2) Dr. Patel's affidavit, which was not submitted in affidavit form until the plaintiff filed the motion for new trial - was sufficient to defeat summary judgment.

Our de novo review of the record reveals that PCF, in support of the motion for summary judgment, introduced into evidence the unanimous opinion of the medical review panel, which concluded that MMC did not fail to meet the applicable standard of care. Therefore, the burden shifted to the plaintiff to show that there existed a genuine issue of material fact.

Other than the unsworn reports of Dr. Nguyen and Dr. Patel and the affidavit of one of the attorneys representing her, the plaintiff did not produce any evidence, expert or otherwise, to oppose the opinion of the medical review panel. At the hearing on the motion for summary judgment, the plaintiff submitted the 2013 prior affidavit executed by Dr. Nguyen. Additionally, months after the district court granted partial summary judgment in favor of PCF, the plaintiff attached the sworn affidavit executed by Dr. Patel in support of her motion for new trial.

In the affidavit executed by Dr. Nguyen, the expert opined that Dr. Zando breached applicable standards of care by failing to obtain a surgical consult while Tamia was being treated in the emergency room, failing to prescribe antibiotics, and by her delay in ordering intravenous fluids. Dr. Nguyen also opined that Dr. Ulich breached the applicable standard of care "by not arranging for Tamia to be seen by a surgeon immediately."

In the affidavit executed by Dr. Patel, the expert opined that MMC "overall practiced below [the] standard of care on various occasions, which lead [sic] to a worsening condition over time[.]" Specifically, Dr. Patel noted the delay in diagnosing Tamia with a perforated appendix and the "significant delay in obtaining a specialty consult which led to a further delay in the transfer to the tertiary hospital." Dr. Patel also mentioned that the radiologist had discussed the results of the CT scan with Dr. Ulich; however, he did not opine that the radiologist had breached a standard of care.

Both retained expert witnesses opined that Dr. Ulich and Dr. Zando breached the applicable standard of care. However, Dr. Zando was never a defendant in this lawsuit, and Dr. Ulich was dismissed from this matter on summary judgment in 2013. The plaintiff has not offered any evidence to establish that any other employee of MMC committed any act that caused or contributed to Tamia's condition. Therefore, we find that the district court did not err in granting partial summary judgment in favor of PCF, in dismissing this lawsuit in its entirety, or in denying the plaintiff's motion for a new trial.

With regard to the plaintiff's contention that she was denied the opportunity to obtain adequate discovery, we note that the instant lawsuit was filed on October 3, 2012, and the trial was set for November 2017. The plaintiff had ample time to conduct discovery, including obtaining the deposition of Dr. Zando (who had moved to Canada by the time the trial was scheduled). Additionally, during the hearing on the motion in limine/motion for summary judgment, the district court expressed its concern that the plaintiff would not have sufficient time to depose Dr. Zando prior to trial (the hearing was on October 31, 2017, and the trial was set for November 27, 2017). The district court indicated that a continuance was likely necessary. However, the plaintiff did not request a continuance.

Further, the plaintiff has failed to demonstrate how the remaining "outstanding" responses to discovery (i.e. , supplements to MMC's policy manual regarding emergency room triage procedure; the job titles of staff that PCF identified as potentially being involved in treating Tamia at MMC; and a response to the plaintiff's request for admission) have rendered her opportunity for discovery "inadequate," in light of the fact that this lawsuit has been pending since October 2012. Moreover, the plaintiff did not complain about PCF's responses to discovery until after the district court had granted partial summary judgment and PCF had filed its motion to dismiss the lawsuit in its entirety. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, the judgments of the district court granting summary judgment in favor of PCF, granting PCF's motion to dismiss the lawsuit, and denying the plaintiff's motion for a new trial are affirmed. Costs of this appeal are assessed to the plaintiff.

AFFIRMED .

      In its "Written Reasons for Conclusion," the panel stated as follows:
      1.
      As to Minden Medical Center and its staff, the staff of Minden Medical Center carried out all orders appropriately as instructed and there was no evidence of a deviation from the standard of care in regards to their actions. The evaluation of the child occurred within a timely manner. The evaluation was thorough and appropriate. The staff was responsive and attentive to her ongoing condition and made appropriate notifications of any changes.
      2.
      As to Dr. Michael Ulich, Dr. Ulich responded appropriately and promptly for consultation from the emergency room physician. He examined the patient and reviewed all studies. He appropriately admitted the patient for continued observation. His response to her failure to improve was arranging her immediate transfer to a higher level of care which was timely and appropriate.
      The patient's unfortunate result was a known complication of the disease processes and procedures she underwent. In our opinion, this does not represent a deviation from the standard of care.

      On March 18, 2013, the plaintiff filed an amended petition, alleging that Dr. Zando breached the applicable standard of care and that MMC was negligent in its supervision of Dr. Zando. MMC filed an exception of prematurity, asserting the claims with regard to Dr. Zando had not been presented to the MRP. The district court granted the exception and the plaintiff's amended petition was dismissed.

      The order, signed on November 16, 2017, prohibited and enjoined the plaintiff from the following: presenting any evidence to suggest that Dr. Zando's treatment of Tamia was negligent and/or breached the applicable standard of care; presenting any evidence to suggest that MMC or PCF was liable with regard to Dr. Zando's treatment of Tamia; presenting any evidence to suggest that MMC was negligent in hiring Dr. Zando; seeking to instruct the jury regarding Dr. Zando's treatment; and seeking to instruct the jury with regard to an allocation of fault to MMC regarding Dr. Zando's alleged acts.

      Due to the clerk of court's policy regarding the failure to pay court costs, the plaintiff was not served with notice of the judgment until April 30, 2018.

      La. C.C.P. art. 967 provides as follows:
      A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
      B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
      C. If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
      D. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney fees. Any offending party or attorney may be adjudged guilty of contempt.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    Sharon JACKSON, Plaintiff-Appellant v. MINDEN POLICE DEPARTMENT, Defendant-Appellee
    No. 52,489-CA
    Court of Appeal of Louisiana, Second Circuit.
    February 27, 2019 Rehearing Denied April 4, 2019
    BRADFORD LAW OFFICE, LLC, By: Reshonda L. Bradford, Counsel for Appellants
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP, By: Edwin H. Byrd, III, Shreveport, Counsel for Appellee
    Before GARRETT, COX, and BLEICH (Pro Tempore), JJ.
   COX, J.

Sharon Jackson filed a petition for damages on behalf of her minor daughter, Z.J., against the Minden Police Department and City of Minden (collectively referred to as "the City"). The trial court granted the City's exception of no cause of action. Ms. Jackson appeals. For the following reasons, we reverse and remand for further proceedings.

FACTS

On May 1, 2016, Ms. Jackson took her 15-year-old daughter, Z.J., to Minden Medical Center to report a sexual abuse. The staff at Minden Medical called the Minden Police Department. After waiting approximately two hours for the two officers to arrive, both Ms. Jackson and Z.J. spoke with the officers and agreed to a rape kit testing procedure. However, no rape kit testing was performed on Z.J. Ms. Jackson stated in the petition that one of the officers said he did not think that the rape kit testing needed to be done. Z.J. was discharged from the hospital and no further investigation was conducted. Z.J. was admitted to Minden Medical the next day, on May 2, 2016, after she attempted suicide.

Ms. Jackson filed a petition for damages against the City on May 1, 2017. She claimed that as a result of the officers' failure to follow mandatory investigation requirements, any chance of securing evidence was lost and Z.J. was left feeling "dejected and drowning in despair." She claimed that the actions of the officers constituted gross negligence, a violation of the duty to uphold public safety, and a violation of the duty to abide by mandatory investigative and reporting requirements.

On June 21, 2017, the City moved for a dismissal on the basis that Ms. Jackson's petition failed to state a cause of action. The City argued that the duty to collect and preserve evidence in a criminal investigation is directed toward the general public, and does not encompass the risk of harm at issue here-that the victim will suffer distress because the suspect is not prosecuted.

On September 7, 2017, the trial court granted the City's exception of no cause of action. The trial court found that the heightened, specific duty triggered when the victim is a child in need of care was not supported by the evidence presented in this case. Ms. Jackson was given 30 days to amend her pleadings.

Ms. Jackson filed her first amended petition for damages on October 3, 2017, expanding upon her previous arguments and listing the following damages: negligent infliction of genuine and serious emotional distress; negligent infliction of mental anguish and emotional distress; loss of enjoyment of life; loss of income; and, medical expenses.

In response, the City filed an exception of no cause of action, arguing Ms. Jackson failed to state a cause of action because there were no proper allegations that Z.J. was a child in need of care. The City argued it was the hospital's responsibility to conduct the rape kit, and there were no facts alleging the officer ordered the hospital not to complete the testing. It also referenced its previous argument that the police officer's duty to investigate is a general duty to the public.

On December 5, 2017, the trial court granted the City's exception of no cause of action and dismissed with prejudice all claims against the City. Ms. Jackson now appeals the trial court's judgment, requesting her cause of action be reinstated.

DISCUSSION

Before addressing Ms. Jackson's arguments, we note that this is a tragic situation. Based on the limited record before us, we are extremely disappointed in how this child's complaint was handled. Any alleged crime against a child deserves to be taken seriously and handled professionally.

Ms. Jackson submits three assignments of error for our review, which will all be discussed together. First, she argues the trial court erred when it failed to recognize that Z.J. qualified as a child in need of care on May 1, 2016. Next, she argues the trial court erred in ruling that no heightened, specific duty was owed to Z.J. in this case. Finally, Ms. Jackson argues Dennis v. Wiley , 2009-0236 (La. App. 1 Cir. 9/11/09), 22 So.3d 189, writ denied , 2009-2222 (La. 12/18/09), 23 So.3d 949, is not controlling in this matter.

The City argues that Ms. Jackson's petition contained conclusory allegations, which must be disregarded by the court. It contends the remaining allegations are insufficient to state a cause of action. The City points out that there is no factual allegation that an investigative file was not sent to the district attorney's office. It also argues that it is the hospital's responsibility to perform the rape kit and highlights that there is no allegation that the officer stopped the hospital from conducting the rape kit. Additionally, the City argues Z.J. does not fall under the description of a child in need of care because there is no allegation that the abuse was perpetrated, aided, or tolerated by the parent or caretaker. Finally, the City argues the Dennis case for the contention that law enforcement duties are general in nature and not for the benefit of the victim.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Whitlock v. Fifth Louisiana Dist. Levee Bd ., 49,667 (La. App. 2 Cir. 4/15/15), 164 So.3d 310. The exception is triable on the face of the petition; and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Cleco Corp. v. Johnson , 2001-0175 (La. 9/18/01), 795 So.2d 302. In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court should conduct a de novo review because the exception raises a question of law, and the trial court's decision should be based only on the sufficiency of the petition. Dhaliwal v. Dhaliwal , 49,973 (La. App. 2 Cir. 11/25/15), 184 So.3d 773, writ denied , 2016-0236 (La. 4/4/16), 190 So.3d 1204.

The purpose of Louisiana Children's Code Title VI, "Child in Need of Care," is to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of such complaints; and, by providing, if necessary, for the resolution of child in need of care proceedings in the courts. This Title is intended to provide the greatest possible protection as promptly as possible for such children. The health, safety, and best interest of the child shall be the paramount concern. La. Ch. C. art. 601.

Louisiana Children's Code article 601 is to be construed in accordance with article 102, which provides, "The provisions of this Code shall be liberally construed to the end that each child and parent coming within the jurisdiction of the court shall be accorded due process[.]"

A "child" is a person under eighteen years of age, who has not been emancipated. La. Ch. C. art. 603(6). "Abuse" includes the involvement of the child in any sexual act with a parent or any other person . La. Ch. C. art. 603(2) (Emphasis added).

Title VI of the Louisiana Children's Code includes mandatory reporting procedures for child abuse, regardless of whether or not the alleged perpetrator is a parent or caretaker. La. Ch. C. art. 610 (Emphasis added). Title VI also includes mandatory investigation procedures. The applicable portion of La. Ch. C. art. 615.1 states (with emphasis added):

A. When a law enforcement agency receives a report of a crime involving sexual abuse of a child, including but not limited to those received pursuant to Louisiana Children's Code Article 610(E)(3), the law enforcement agency shall :
(1) Maintain a report containing all information listed in Louisiana Children's Code Article 610(B) and (C), if known, and conduct a full investigation of the allegations.
(2) Maintain the confidentiality of the identity of the reporter in accordance with R.S. 46:56.
(3) After investigation of the report of child sexual abuse by the law enforcement agency having jurisdiction over the reported incident, send the investigative file to the district attorney for review whether or not an arrest is made.

The word "shall" is mandatory, and the word "may" is permissive. La. Ch. C. art. 107.

In Dennis v. Wiley, supra , an adult rape victim brought a suit against the sheriff's office for negligent infliction of mental anguish and emotional distress after the sheriff's office incorrectly disposed of all evidence from her aggravated rape case. The Louisiana First Circuit stated:

The Sheriff's Office is charged with a general duty to preserve peace and apprehend criminal offenders. LSA-R.S. 33:1435. Nothing in that general duty is designed to protect the individual victim of a crime from emotional distress or mental anguish that may result from the knowledge that evidence of the crime has been negligently misplaced or mistakenly destroyed. Likewise, nothing in that general duty is designed to benefit an individual victim of a crime so that the victim may someday pursue a civil suit or some other legal remedy. Obviously, the proper preservation of criminal evidence is necessary for the successful apprehension and prosecution of criminals. However, it is apparent that the duty to preserve evidence obtained in a criminal investigation is directed toward the general public to aid in maintaining public order, as well as for the benefit of the District Attorney so that criminal suspects can be more readily apprehended and successfully prosecuted.

Id.

We find Dennis v. Wiley, supra, to be distinguishable from the case before us. The Dennis case involved an adult, whereas the case before us involves a child. In the Dennis case, the officers investigated and gathered evidence before disposing of the evidence years later. The case before us does not involve the general duty of preserving evidence for prosecution, but whether or not the Children's Code imposes a more narrow duty to investigate when the assault victim is a child. Additionally, the Dennis case was decided after a trial on the merits. In the case before us, discovery has yet to be conducted or completed.

Title VI of the Children's Code is designed to protect children from abuse or exploitation of others. Louisiana Children's Code article 606 lists the grounds to allege a child is in need of care. The City argues a child must fall under article 606 in order for Title VI to apply, and in this case, Z.J. was not the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker. We do not agree with this argument.

Various articles within Title VI deal with abuse that is not perpetrated by a family member or household member, including the definitions, where to report, and who must investigate. La. Ch. C. arts. 603 and 610. The purpose of Title VI is not only to protect a child who could be categorized as a "child in need of care," but also to protect all children from abuse by providing mandatory reporting and investigation requirements, as stated in article 601. In protecting the child, it may be necessary to allege the child is in need of care in order to remove the child from the perpetrator's home. If the legislature intended that Title VI only apply to children who fall under the definition of child in need of care in article 606, there would be no need to include the mandatory reporting and investigation of abuse when the perpetrator was not a parent, caretaker, or household member. Additionally, there would be no need to include "any other person" as a perpetrator under the definition of abuse.

Title VI requires the mandatory reporting and investigation of all child abuse, regardless of the relationship to the perpetrator. For this reason, we find Z.J. falls under the protections and requirements of Title VI. Title VI creates mandatory investigation procedures when law enforcement receives a report of a crime involving the sexual abuse of a child. La. Ch. C. art. 615.1. The law enforcement agency is not given discretion in deciding whether or not to investigate the report. The purpose of the Children's Code is that each child be afforded due process and care, guidance, and control that will be conducive to his or her welfare. La. Ch. C. art. 102 (Emphasis added). Therefore, we find there is a heightened, mandatory duty to investigate, which is owed to each child.

Ms. Jackson's allegations in her petition, accepted as true, state the officer declined to proceed with the investigation by stating a rape kit test did not need to be performed. Z.J. was discharged without any further investigation. For this reason, we find Ms. Jackson has stated a cause of action against the City of Minden.

CONCLUSION

We reverse the trial court's granting of the City's exception of no cause of action and remand to the trial court for further proceedings. Costs of this appeal are assessed to the City of Minden in the amount of $ 1,107.68. La. R.S. 13:5112.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before Daniel Milton Moore III, Frances Jones Pitman, Jeanette Giddens Garrett, Jeff Cox - Writing, and E. Joseph Bleich, JJ.

Rehearing denied.

      The trial court noted that the City of Minden was wrongly identified in the petition for damages as the "Minden Police Department."


author: MOORE, J.

text:
    Bilyeu BUCKS, et al., Plaintiff-Appellants v. DIRECTECH SOUTHWEST, et al., Defendant-Appellees
    No. 52,474-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019 Rehearing Denied April 4, 2019
    STAMEY & MILLER, LLC, By: J. Mark Miller, Counsel for Appellants
    BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, By: Phyllis G. Cancienne, Christopher G. Morris, Christopher M. Vitenas, Baton Rouge, Counsel for Appellees, Directech Southwest, Inc., F/K/A Com-Craft Directech, Inc., and Multiband Field Services, Inc.
    Before MOORE, GARRETT, and STEPHENS, JJ.
   MOORE, J.

The plaintiffs, Woody Bilyeu, Mary Bilyeu and Patrick Shelton, appeal a judgment that sustained an exception of res judicata filed by the three remaining defendants, DirecTECH Southwest, DirecTECH Inc. and Multiband Corp., thus ending the lawsuit, and a judgment that denied the plaintiffs' later motion for leave of court to file a fifth supplemental and amending petition. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

The Bilyeus were the owners of Comm-Craft Inc. and DirecTECH Inc. ("DT"), companies that, in the early 1980s, installed satellite dishes (and later became part of DirecTV). Together with Shelton, they were also the trustees of these companies' Employee Stock Ownership Plans ("ESOPs"). In July 2004, they sold their interest in Comm-Craft (which changed its name to DirecTECH Southwest, "DTSW") and DT (later known as DirecTECH Delaware, but still called "DT" in this matter). Before they divested, the plaintiffs sold their shares in these companies' ESOPs back to the ESOPs. The purchasers paid by executing promissory notes to the plaintiffs.

Later, DirecTECH Holding Co. ("DTHC") was formed to act as a holding company of DT and DTSW. In June 2005, DTHC acquired 100% of the stock of DT and DTSW; thus, DTSW and DT were wholly-owned subsidiaries of DTHC.

In 2007, in an effort to refinance, DTHC asked the plaintiffs to take refinance notes, and they agreed. DTHC executed two notes, the "Dec 2007 Refi Note," in favor of Bilyeu for $ 11,622,386, and the "Dec 2007 Bilyeu Bucks Note," in favor of Bilyeu Bucks (the Bilyeus' LLC) for $ 818,897. As part of the transaction, DTHC's subsidiaries, DTSW and DT, agreed to indemnify (by nine separate documents, the "Indemnity Agreements") the Bilyeus for any time, travel, legal or other expenses they might incur in connection with the ESOP transactions.

Later in 2007, the U.S. Department of Labor ("DOL") opened an ERISA investigation into whether the plaintiffs had a conflict of interest by acting as directors of the companies selling their stock and as trustees of the ESOPs buying it. DOL suspected, among other things, that the sales were at grossly overinflated prices, resulting in sizable losses to the employees invested in the ESOPs and in financial gain to the sellers.

PROCEDURAL HISTORY

In September 2008, Bilyeu Bucks and the Bilyeus individually filed this suit alleging that the Dec 2007 Refi Note and Dec 2007 Bilyeu Bucks Note were in default. They demanded the balances, a total of $ 12,123,478, plus interest and attorney fees as stated in the notes, from DTHC, DTSW, DT and some other subsidiaries. They also demanded enforcement of the Indemnity Agreements against DTSW and DT.

The defendants filed an exception of prematurity; after some litigation, the matter was referred to arbitration in Winn Parish.

Meanwhile, several things happened. In late 2008, DTHC sold 100% of its shares of DT and DTSW to Multiband. In early 2009, in connection with the stock purchase, DTSW, DT and DTHC executed an assignment and assumption agreement ("Master Agreement") whereby Multiband, DTSW and DT would assume certain obligations of DTHC. The Master Agreement specifically listed the Indemnity Agreements as subject to the assignment and assumption and stated that Multiband and DTHC's operating entities "expressly assume all covenants * * * of DTHC * * * as if they were the original party thereto[.]"

In June 2011, the Bilyeus and Shelton settled their ERISA claim with DOL. They agreed to pay $ 5,181,818 to the DTHC ESOP and $ 518,181 directly to DOL.

They executed a consent judgment and order which contained a "Bar Order": the plaintiffs were permanently and forever barred from filing any claims against any nonsettling defendant, "whether for indemnification, contribution, reimbursement, or other monetary relief," where the claim was based on the facts in the DOL complaint.

In June 2012, the arbitrator denied the Bilyeus' claims against DTHC on the Dec 2007 Refi Note and Dec 2007 Bilyeu Bucks Note, but awarded Bilyeu Bucks $ 74,770 on the Indemnity Agreements. In October 2012, Bilyeu Bucks acknowledged receipt and satisfaction of this amount.

The Bilyeus filed four supplemental and amending petitions, adding Shelton as a plaintiff and joining several additional defendants, including Multiband. In 2013, the plaintiffs settled with most of these defendants.

In March 2016, the three remaining defendants, DTSW, DT and Multiband, filed the instant peremptory exception of res judicata. They alleged that the Bar Order prohibited the plaintiffs from suing any nonsettling defendant for indemnification arising out of the facts in the DOL complaint. They also alleged that under the Master Agreement, Multiband stepped into the shoes of DTSW and DT, and thus was entitled to the protection of the Bar Order.

The plaintiffs conceded that the Bar Order existed, but argued it was not a "blanket bar," and urged that the Master Agreement was not valid.

ACTION OF THE DISTRICT COURT

The exception of res judicata was tried in September 2016. After taking the matter under advisement, the district court issued reasons for judgment in February 2017. The court initially stated that Multiband acquired 100% of DTHC through a stock purchase agreement. It then found that the Bar Order barred this suit against DTSW and DT, and that the Master Agreement gave Multiband the benefit of the Bar Order. The court theorized that the Bar Order would permit the plaintiffs to sue "parties such as those who prepared the valuations upon which Plaintiffs relied when they sold their stock to the ESOPs," but not these defendants. The court rendered judgment granting the exception of res judicata and dismissing the suit in January 2018.

Four days later, the plaintiffs moved for leave of court to file a fifth supplemental and amending petition, to join another defendant, Multiband Field Services, allegedly a successor in interest to Multiband. The district court denied this motion, handwriting on the proposed order, "granting of the motion to amend would be futile as the granting of the motion for res judicata this day effectively dismisses this lawsuit."

The plaintiffs now appeal both the grant of the exception of res judicata and the denial of leave to amend. They designate nine original specifications of error; by reply memo, they assert seven supplemental specifications.

DISCUSSION

Factual Error of Trial Court

By their first original specification of error and second supplemental specification, the plaintiffs urge the district court was plainly wrong to find that Multiband acquired 100% of the stock of DTHC, when the evidence clearly showed that Multiband acquired 100% of the stock of DTSW and DT. The plaintiffs contend that this factual error "right out of the gate" tainted the court's conclusion that Multiband stepped into the shoes of DTHC.

The defendants concede that the district court misspoke when it stated that Multiband acquired DTHC outright; in fact, Multiband acquired only DTHC's subsidiary companies. The defendants submit, however, the error is immaterial, as Multiband and its subsidiaries expressly assumed the Indemnity Agreements from DTHC, and the Indemnity Agreements are the linchpin of their exception of res judicata.

The first part of the plaintiffs' argument has merit: the district court committed manifest error in finding that Multiband acquired 100% of the stock of DTHC instead of 100% of the stock of DTSW and DT. However, for reasons more fully discussed below, this error did not taint or prejudice the remainder of the court's factual findings. The district court correctly found that DTHC assigned, and the DTHC operating companies and Multiband assumed, all of the Indemnity Agreements set forth in the Master Agreement. These specifications do not present reversible error.

Interpretation of the Agreements

By their second and third original specifications of error and fifth and sixth supplemental specifications, the plaintiffs urge the district court erred in failing to find that Multiband was an assuming obligor pursuant to the terms of the Indemnity Agreements and under the terms of the Master Agreements. The Indemnity Agreements require a company acquiring the indemnitor company, DT, to assume the Indemnity Agreements in writing; DT cannot sell all, or substantially all, its stock unless the purchaser "expressly assumes, in writing," DT's obligations and duties; hence, Multiband must have assumed DT's Indemnity Agreements. Further, § 1 of the Master Agreement states that Multiband "expressly assume[s] all the covenants, agreements, obligations and liabilities of DTHC * * * as if they were the original parties thereto," and § 3 provides, "Except for those obligations being expressly assumed by * * * Multiband, * * * no other obligations of DTHC, of any kind or nature, are being assumed by * * * Multiband."

By their fifth specification of error, the plaintiffs further urge that the court erred in finding that Multiband stepped into the shoes of DT by virtue of an assignment of all DTHC's rights, when no such assignment exists. The plaintiffs contend there is simply no such assignment of all of DTHC's rights in the Master Agreement, or in any other document.

Interpretation of a contract is a determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Factual findings that pertain to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton , 2001-2578 (La. 5/14/02), 817 So.2d 69 ; U.L. Coleman Co. v. Gosslee , 51,396 (La. App. 2 Cir. 11/3/17), 244 So.3d 783, 2017 Wage & Hour Cas. (BNA) 395,518, writ denied , 2018-0239 (La. 4/16/18), 240 So.3d 180.

Six of the Indemnity Agreements (dated December 31, 2003, March 19, 2004, and August 28, 2004) provide as follows:

This Agreement shall be binding upon and inure to the benefit of the assigns, successors and legal representatives of the parties hereto. Directech hereby agrees that it shall not merge or consolidate with any other entity or corporation in a transaction after which Directech is not the surviving entity nor shall it sell all or substantially all of its stock (other than to the trust) or its assets to another person, corporation, association, partnership or other entity unless that other person, corporation, association, partnership or other entity expressly assumes, in writing, the duties and obligations of Directech as set forth in this agreement.

The remaining three Indemnity Agreements (dated December 31, 2003, and March 19, 2004) provide, similarly:

This Agreement shall be binding upon the successors of the Company. In the event that the Company merges or consolidates with another entity, or is restructured in any form whatsoever, the Company or its successor shall reconfirm, acknowledge and bind itself to the duties and obligations of the Company as set forth in this Agreement.

In short, the Indemnity Agreements state that any successor or company buying the stock of DT and DTSW is bound to the Indemnity Agreements. Hence, when DTHC acquired 100% of the stock of DT and DTSW, in June 2005, DTHC became bound by the Indemnity Agreements.

The Master Agreement (dated January 2, 2009) provides, in pertinent part:

DTHC has agreed to assign the DTHC Obligations to the DTHC Operating Entities and to [Multiband], and the DTHC Operating Entities and [Multiband] have agreed to assume the DTHC Obligations, and certain other obligations of DTHC, pursuant to the terms of this Agreement and the Stock Purchase Agreement, respectively. * * *
[Multiband] and the DTHC Operating Entities will assume all liabilities and contingent liabilities outlined in this Agreement and any and all contingent liabilities outlined in the Stock Purchase Agreement, as well as DTHC's expenses and other identified liabilities incurred prior to the Closing * * *. For each of the DTHC Obligations, (a) DTHC assigns and the DTHC Operating Entities and [Multiband] expressly assume all covenants, agreements, obligations and liabilities of DTHC under the Applicable DTHC Obligations as if they were the original party thereto, including, without limitation, all indemnity, reimbursement and other payment obligations as set forth therein[.]

The Master Agreement further states that DTHC was a party to the Indemnity Agreements. This satisfies the requirement, in the Indemnity Agreements, that any purchaser must "expressly assume[ ], in writing," DT's obligations and duties. A plain reading of the Master Agreement shows that DTHC assigned, and DTHC's Operating Entities and Multiband assumed, various obligations, including the Indemnity Agreements. There is simply no merit to the assertion of the plaintiffs' second and third specifications of error that the district court failed to find that Multiband was an assuming obligor.

We agree that these documents make no mention of any assignment of DTHC's rights. Only obligations are assigned. However, the Master Agreement expressly states that these obligations are transferred to the assuming obligors "as if they were the original party thereto." Thus there is no merit to the assertion of the plaintiffs' fifth specification of error that the district court erred in finding that Multiband "stepped into the shoes" of DTHC and its subsidiaries. This comports with a plain reading of the contract. La. C.C. art. 2046. We perceive no manifest error.

These specifications of error lack merit.

Assumption of Obligations

By their fourth specification of error, the plaintiffs urge the district court erred in holding that an assumption of an obligation by an assuming obligor releases the original obligors. In support, they cite La. C.C. art. 1821, which permits an obligor and a third party to agree to an assumption by the latter of an obligation of the former, but states that the obligee's consent to such an agreement "does not effect a release of the obligor." They further cite Revision Comment (d), which states that such an arrangement does not extinguish the original obligation, and Saúl Livinoff, Law of Obligations , 5 La. Civ. L. Tr., § 10.13 (2 ed., 2001), "the original obligor is not released, that is, he is still bound to render performance to the obligee[.]" The plaintiffs contend that regardless of the terms of the agreements, Multiband merely became an additional obligor to indemnify the plaintiffs; DTSW and DT are still obligors.

We are constrained to observe that Prof. Litvinoff also states, "In other words, the assumption of an obligation by a third person does not effect a novation, unless the obligee clearly expresses his intention to regard the original obligation as extinguished and accept in lieu thereof a new obligation of the third person." The vintage cases on which Art. 1821 is based, Latiolais v. Citizens' Bank of La. , 33 La. Ann. 1444 (1881), and Jacobs v. Calderwood , 4 La. Ann. 509 (1849), are expressly premised on the fact that the creditors never consented to releasing the original obligors. If the creditor grants such consent, a different result obtains, as recognized by Prof. Litvinoff. For the reasons more fully discussed below, the plaintiffs' execution of the Bar Order waived their right to seek any indemnification from DTSW, DT and Multiband. This specification of error lacks merit.

Bar Order as Res Judicata

By their sixth, seventh and eighth specifications of error, and first, third and fourth supplemental specifications, the plaintiffs challenge the district court's finding that the Bar Order constituted res judicata as to their claim for indemnification. The plaintiffs concede that they executed the Bar Order, and that it bars them from seeking contribution or indemnification from "any nonsettling codefendants."

However, they argue that the Bar Order was merely an injunction, not a compromise or release of claims, and cannot serve as the basis of res judicata. In support, they cite Household Fin. Corp. of B.R. v. LeJeune , 205 So.2d 771 (La. App. 1 Cir. 1967), rev'd on other grounds , 252 La. 691, 212 So.2d 546 (1968). Next, they contend that DTSW, DT and Multiband were not parties to the DOL action, so they are not insulated from the plaintiffs' claims for indemnification. They then argue that the Bar Order was not assignable as a defense to a nonparty, and was in fact a strictly personal defense to DTHC which cannot be claimed by DTSW, DT and Multiband. Finally, they submit that even if the right could be assigned, the district court ignored the principle that an assignee acquires only those rights possessed by the assignor at the time of the assignment. Conerly Corp. v. Regions Bank , 668 F.Supp.2d 816, 70 UCC Rep. Serv. 2d 104 (E.D. La. 2009). They contend that when DTSW and DT sold out to Multiband, in 2009, the Bar Order had not yet been issued, so the assignors could not have assigned a right that did not yet exist.

The doctrine of res judicata precludes the relitigation of all causes of action arising out of the same transaction and occurrence that were the subject matter of a prior litigation between the same parties. La. R.S. 13:4231. The preclusive effect of res judicata applies to a nonparty who is a successor in interest of a party. Forum for Equality PAC v. McKeithen , 2004-2551 (La. 1/19/05), 893 So.2d 738 ; Davisson v. Davisson , 52,015 (La. App. 2 Cir. 5/23/18), 248 So.3d 633. A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A valid compromise may form the basis for a plea of res judicata. Oliver v. Orleans Parish School Bd. , 2014-0329 (La. 10/31/14), 156 So.3d 596, 314 Ed. L. Rep. 1161 ; Red River Waterway Com'n v. Succession of Fry , 45,103 (La. App. 2 Cir. 4/28/10), 36 So.3d 401, writ denied , 2010-1214 (La. 9/17/10), 45 So.3d 1051. A compromise instrument is the law between the parties and is interpreted according to the parties' intent, using the general rules of construction applicable to contracts. Chauvin v. Exxon Mobil Corp. , 2014-0808 (La. 12/9/14), 158 So.3d 761. Public policy favors compromise agreements and the finality of judgments. Brown v. Drillers Inc. , 93-1019 (La. 1/14/94), 630 So.2d 741. A compromise that releases all claims is not ambiguous simply because it is broad. Dumas v. Angus Chem. Co. , 31,969 (La. App. 2 Cir. 8/20/99), 742 So.2d 655, writ not cons. , 99-2750 (La. 11/5/99), 751 So.2d 237, and citations therein.

The Bar Order is part of a document labeled "Consent Judgment & Order Between the Secretary and Defendants Woody Bilyeu, Mary Bilyeu and Patrick Brian Shelton," in the U.S. District Court for the Eastern District of Kentucky, Northern Division at Covington. It recites that the Secretary filed a complaint against these settling defendants for ERISA violations, the parties had negotiated an agreement to settle all claims and issues, the consent judgment was the sole and complete agreement, and includes the language, "It is hereby Ordered, Adjudged and Decreed." Any suggestion that this document is not a compromise or release of claim is utterly baseless and borders on the frivolous. The plaintiffs' first supplemental specification is without merit.

A defense is strictly personal when it requires the special skill or qualification of the obligor, or when performance is intended for the benefit of the obligee exclusively. La. C.C. art. 1766. Personal defenses include interspousal immunity, father-son immunity, an insane person's capacity to be liable for his torts, infancy and coverture, Danzy v. U.S. Fidelity & Guar. Co. , 380 So.2d 1356 (La. 1980), as well as "coverture, lunacy, bankruptcy and the like," Simmons v. Clark , 64 So.2d 520 (La. App. 1 Cir. 1953). Defenses are strictly personal when they are, as a matter of public policy, intended to protect certain persons as members of a protected class. Louisiana Land & Expl. Co. v. Amoco Prod. , 878 F.2d 852 (5 Cir. 1989).

This court is aware of no case holding that res judicata is a strictly personal defense. To the contrary, the formulation that res judicata applies to the successor in interest of a party refutes the contention. Forum for Equality PAC v. McKeithen , supra ; Davisson v. Davisson , supra . In fact, the assuming obligor may raise any defense based on the relationship between the original obligor and the obligee. La. C.C. art. 1824. The case cited by the plaintiffs, Household Fin. Corp. of B.R. v. LeJeune , supra , actually held that discharge in bankruptcy is a strictly personal defense, a fact recognized by cases like Danzy v. U.S. Fidelity & Guar. Co. , and Simmons v. Clark , supra . It simply does not address res judicata. The plaintiffs' sixth specification and fourth supplemental specification of error lack merit.

The Bar Order provides as follows, with emphasis added:

13. Settling Defendants [Woody Bilyeu, Mary Bilyeu and Patrick Shelton], and, as applicable, their agents, representatives, assigns and successors in interest, are permanently and forever barred and enjoined from filing, commencing, instituting, prosecuting, or maintaining, either directly, indirectly, representatively, or in any other capacity, any claim against any of the non-settling Defendants arising under state, federal, or common law, however styled, and in any forum, whether for indemnification, contribution, reimbursement, or other monetary relief, where the claim against any of the non-settling Defendants is based upon, arises out of, relates to the facts, transactions, and occurrences referred to in the Secretary's Complaint, and the claim against any of the non-settling Defendants seeks to recover (i) any amount Settling Defendants have paid pursuant to this Consent Judgment & Order or (ii) any costs, expenses, or attorneys' fees from defending any claim by the Secretary in the Secretary's action. However, nothing in this Section shall be construed or interpreted to bar, enjoin, release or discharge any of the Settling Defendants' claims for indemnification, contribution or other monetary or equitable relief against any person or entity that is not a party to this civil action.

The plaintiffs show that the document never defines "non-settling Defendants" and argue that because Multiband, DTSW and DT were not parties to the DOL action, they could not be insulated from these claims for indemnification.

The plaintiffs' reading of the Bar Order is unduly narrow. The thrust of the DOL action was that the plaintiffs (as "defendants" in the complaint) violated federal law by selling their ESOP shares back to the ESOPs at grossly inflated prices. The tenor of the consent judgment was that the plaintiffs would repay the victims - the ESOPs - an agreed amount of the alleged overcharge, some $ 5.1 million. In exchange for DOL's promise to dismiss claims against the plaintiffs, the plaintiffs agreed not to pursue the victims (DTHC ESOP specifically, and others, the nonsettling Defendants) for any indemnity or reimbursement. Although the Bar Order is broadly phrased, the only reasonable interpretation of it is that the plaintiffs would never pursue the victims for the settlement money just paid. To allow such a claim would obviously defeat the purpose of the consent judgment.

The plaintiffs have never contested that DTSW, DT and Multiband are successors in interest to DTHC. For the reasons already discussed, when DT and DTSW sold 100% of their stock to DTHC, DTHC became bound by the Indemnity Agreements. Later, by the Master Agreement, Multiband assumed all of DTHC's obligations "as if they were the original party thereto." In short, the defendants are entitled to assert DTHC's status as a nonsettling defendant and claim the protection of the Bar Order. The plaintiffs' seventh specification of error and third supplemental specification lack merit.

Further, we agree that as a general rule, an assignor may assign only such rights as he possesses at the time of the assignment. Conerly v. Regions Bank , supra . However, the law recognizes that subsequent events may affect the validity of an assignment or sale that appears to be overbroad. See, e.g. , J-W Operating Co. v. Olsen , 48,756 (La. App. 2 Cir. 1/15/14), 130 So.3d 1017. The Bar Order did not yet exist when DTSW and DT sold out to Multiband, but this long and complex record makes it abundantly clear that in executing the Bar Order, the plaintiffs waived the indemnity claims they are now asserting. The plaintiffs' eighth specification of error lacks merit.

Without specifically designating it as error, the plaintiffs take issue with the district court's obiter dictum that the final sentence of the Bar Order would allow them to pursue "parties such as those who prepared the valuations upon which Plaintiffs relied when they sold their stock to the ESOPs." We recognize that courts should avoid rendering advisory opinions as to hypothetical controversies. Shepherd v. Schedler , 2015-1750 (La. 1/27/16), 209 So.3d 752 ; Thornton v. Carthon , 47,948 (La. App. 2 Cir. 5/15/13), 114 So.3d 554, writ denied , 2013-1785 (La. 11/1/13), 125 So.3d 435. Obviously, this case does not include claims against any person who prepared valuations for the plaintiffs. However, the district court's observation was a reasonable reading of the final sentence of the Bar Order, for the purposes of the instant case. We perceive no reversible error.

Leave of Court to Amend

By their ninth specification of error and seventh supplemental specification, the plaintiffs urge the district court erred in denying leave of court to join an additional defendant which was made in good faith, did not prejudice the defendants and did not delay trial. They argue that amendment of pleadings should be liberally allowed. Reeder v. North , 97-0239 (La. 10/21/97), 701 So.2d 1291 ; Hibernia Nat'l Bank v. Antonini , 33,436 (La. App. 2 Cir. 8/23/00), 767 So.2d 143. They contend that they did not learn of the existence of Multiband Field Services, a successor of Multiband, until after the exception of res judicata had been filed and argued; hence, the amendment was not in bad faith or intended to delay trial, and is the equitable remedy in this situation.

After an answer to petition has been served, the plaintiff may amend the petition only by leave of court or by written consent of the adverse party. La. C.C.P. art. 1151. The law takes a liberal approach to allowing amended pleadings to promote the interests of justice. Reeder v. North , supra .Amendment is generally allowed, provided the mover is acting in good faith, the amendment is not sought as a delaying tactic, the opponent will not be unduly prejudiced, and the trial of the issues will not be unduly delayed. Giron v. Housing Auth. of City of Opelousas , 393 So.2d 1267 (La. 1981). The decision to allow or disallow amendment is within the trial court's broad discretion. Giron v. Housing Auth. , supra ; Short v. Short , 40,136 (La. App. 2 Cir. 9/23/05), 912 So.2d 82, writ denied , 2005-2320 (La. 3/10/06), 925 So.2d 519. The right to amend does not extend to situations where it is apparent that the defect could not be corrected by amendment. Magill v. Lowery , 43,261 (La. App. 2 Cir. 5/7/08), 990 So.2d 18, writ denied , 2008-1237 (La. 10/10/08), 993 So.2d 1283. Amendment is not permitted when it would be a vain and useless act, such as after the grant of a peremptory exception. Hershberger v. LKM Chinese LLC , 2014-1079 (La. App. 4 Cir. 5/20/15), 172 So.3d 140.

On close examination, we find no abuse of the district court's discretion. Although the defendants' belated disclosure of the existence of Multiband Field Services is not exemplary practice, there is no showing that the joinder of this defendant would cure the exception of res judicata. The record shows that Multiband Field Services is a successor in interest to DT and DTSW, two entities that are entitled to assert the Bar Order as a defense to this indemnity claim. Joinder of yet another defendant that can claim the benefit of the Bar Order would be a vain and useless act. These specifications lack merit.

CONCLUSION

For the reasons expressed, the judgments are affirmed. All costs are to be paid by the plaintiffs, Woody D. Bilyeu, Mary H. Bilyeu and Patrick B. Shelton.

AFFIRMED .

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Daniel Milton Moore III - Writing, Jeanette Giddens Garrett, James Mark Stephens, E. Joseph Bleich, JJ.

Rehearing denied.

      Bilyeu Bucks LLC v. DirecTECH Southwest Inc. , 45,870 (La. App. 2 Cir. 9/13/10) (unpub. writ grant), writ not cons. , 2010-2591 (La. 1/14/11), 52 So.3d 891.

      In separate litigation, the plaintiffs unsuccessfully claimed that fiduciary and errors-and-omissions insurance policies should cover this loss. Bilyeu v. National Fire Ins. Co. of Pittsburgh, Pa. , 50,049 (La. App. 2 Cir. 9/30/15), 184 So.3d 69, 60 Emp. Ben. Cases 2977, writ denied , 2015-2277 (La. 2/19/16), 187 So.3d 462.


text:
    Donna BUTLER-BOWIE, Individually and on Behalf of the Estate of Charlie E. Butler, Sr., Plaintiff-Appellant v. The OLIVE BRANCH SENIOR CARE CENTER, Defendant-Appellee
    No. 52,520-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 27, 2019
    JACQUELINE NASH GRANT, Counsel for Appellant
    CHARLES W. HEROLD, III, Monroe, J. CASEY AUTONBERRY, Counsel for Appellee
    Before MOORE, STONE, and BLEICH (Pre Tempore), JJ.
   MOORE, J.

Donna Butler-Bowie appeals a judgment that sustained a declinatory exception of prematurity and a peremptory exception of prescription, and a later judgment that sustained a peremptory exception of no cause of action, fully dismissing her claims against Olive Branch Senior Care Center for a patient's wrongful death and for her own survival action. For the reasons expressed, we affirm.

PROCEDURAL HISTORY

Charlie Butler Sr., an elderly person in need of long-term care, was placed in Olive Branch, in Tallulah, Louisiana, as a live-in resident. On June 11, 2016, Mr. Butler died, at the age of 86.

On June 7, 2017, Ms. Butler filed this pro se petition for damages, individually and on behalf of Mr. Butler's estate, against Olive Branch. She alleged that he died "as the result of complications related to substandard medical treatment and care received" at Olive Branch. In ¶ 3, she alleged that the substandard treatment included but was not limited to:

i. Inadequate medical treatment;
ii. Inappropriate medicines being dispensed;
iii. Lack of proper nutrition received;
iv. Failure to properly turn and move patient;
v. Other acts and omissions that will be proven at trial.

In ¶ 4, she alleged violations of the Louisiana Nursing Home Residents Bill of Rights ("NHRBR"), La. R.S. 40:2010.8, as Mr. Butler was "in need of continuous adequate care * * * as required of physically and mentally incapacitated patients" and "consistent with the type of healthcare for which nursing homes and/or skilled nursing facilities are generally dedicated."

In ¶ 5, she alleged "negligence per se," "in the following, non-exclusive particulars":

(a) Failing to protect Charlie E. Butler Sr. from injury and in so failing, failing to provide appropriate health care;
(b) Leaving Charlie Butler Sr. unattended and unsupervised for extended periods of time; and
(c) Failing to provide adequate care and nutrition to Charlie E. Butler Sr.

In ¶ 6, she alleged that Olive Branch's "intentional acts, acts of negligence and deviations from standard of care" contributed to and caused Mr. Butler's injuries. She demanded judgment for all damages, legal interest and costs, attorney fees and a "medical review of the issues herein."

Olive Branch responded with a dilatory exception of prematurity, urging that it was a qualified health care provider and entitled to the procedure of the Louisiana Medical Malpractice Act ("MMA"), La. R.S. 40:1231.1 D, and that Ms. Butler had indeed filed a request for a Medical Review Panel ("MRP") with the Department of Administration, on June 8, 2017. Olive Branch argued that under MMA, the tort suit was premature until the MRP was concluded.

Shortly after this, Ms. Butler retained counsel.

Olive Branch then filed a peremptory exception of prescription on grounds that when Ms. Butler filed her request for MRP, she omitted to send the required filing fee; the agency gave her 45 days to send the fee, as mandated by La. R.S. 40:1231.8 A(1)(c), but she failed to remit the fee within that time. Olive Branch argued that in these circumstances, the MRP filing was "invalid and without effect," Lewis v. Serenity Springs Hosp. , 48,820 (La. App. 2 Cir. 2/26/14), 136 So.3d 306, and hence it could not interrupt prescription on the tort claim, Kelly v. Christus Schumpert , 50,557 (La. App. 2 Cir. 4/13/16), 195 So.3d 14.

In a reply memorandum, Olive Branch stated that Ms. Butler had filed an opposition challenging the prematurity of her NHRBR claim but not opposing the exception of prescription. However, her opposition does not appear in the instant record.

ACTION OF DISTRICT COURT

After a hearing in February 2018, the district court sustained both exceptions (prematurity, prescription) and ruled that the petition did not state a cause of action under NHRBR. Judgment to this effect was rendered on February 21, 2018, and Ms. Butler moved for devolutive appeal.

Olive Branch then filed a peremptory exception of no cause of action on grounds that most of the allegations "sound in medical malpractice," as they were related to medical treatment, as defined in R.S. 40:1231.1 A(9), and thus were subject to MMA, under Coleman v. Deno , 2001-1517 (La. 1/25/02), 813 So.2d 303. Olive Branch carefully parsed Ms. Butler's petition, particularly ¶¶ 3-6, quoted above, and argued that every specific claim raised a malpractice issue. It also argued that Louisiana does not recognize the notion of "negligence per se."

Ms. Butler countered that some of her claims fell outside of MMA, and cited two cases that had successfully skirted the statute: Sewell v. Doctors Hosp. , 600 So.2d 577 (La. 1992), and Henry v. West Monroe GuestHouse , 39,442 (La. App. 2 Cir. 3/2/05), 895 So.2d 680. In her opposition memo, Ms. Butler also suggested that amendment of the petition "can further detail the acts," would be in good faith and "not be a tactic to delay," but she filed no motion for leave of court to amend her petition.

After a hearing in May 2018, the court sustained the exception of no cause of action, dismissed all of Ms. Butler's claims, and ruled that the judgment was final and appealable. One day later, the court granted an order of appeal, covering both the February 2018 and May 2018 judgments.

Ms. Butler has appealed, raising two errors.

DISCUSSION

As a preliminary matter, this court notes that Ms. Butler's petition, filed in proper person, alleges only that she "appears on behalf of The Estate of Charlie E. Butler Sr." and that she "respectfully represent [sic ] damages on behalf of Charlie E. Butler Sr." An action can be brought only by a person having a real and actual interest which she asserts. La. C.C.P. art. 681. This petition is totally silent as to Ms. Butler's relationship to the decedent, a status that is required to claim a survival or wrongful death action, La. C.C. arts. 2315.1 A(1), 2315.2 A(1). Jackson v. Farquhar , 50,902 (La. App. 2 Cir. 10/5/16), 207 So.3d 1112. In other words, the petition appears not to state a right of action, La. C.C.P. art. 927 A(6). However, in light of our decision on the other exceptions, we pretermit any further consideration of this issue.

Exception of Prematurity

By her first specification of error, Ms. Butler urges the court erred in sustaining the dilatory exception of prematurity and holding that she had no cause of action under NHRBR, despite the fact that she alleged negligence outside of MMA. Ms. Butler concedes that she failed to meet the filing fee requirement for her MRP request, but argues that this did not defeat her negligence claim under La. C.C. arts. 2325 and 2315.1. She cites the definition of health care, R.S. 40:1231.1 A(9), and argues that the legislature never intended that every act , by any health care provider during a patient's confinement in a nursing home, would be covered by MMA. Richard v. Louisiana Extended Care Ctrs. Inc. , 2002-0978 (La. 1/14/03), 835 So.2d 460. She contends that several of her allegations - inadequate custodial care, failing to protect from injury, leaving the patient unattended, failing to provide adequate care and nutrition, failing to properly turn and move the patient - fall outside of MMA's definition of health care. She also contends that the definition of malpractice, La. R.S. 40:1231.1 A(13), is limited to unintentional acts , while some of Olive Branch's decisions, regarding staffing and resources, were intentional , and thus not malpractice. Finally, she reiterates that several cases have found conduct inside nursing homes to fall outside of MMA, such as Henry v. West Monroe Guest House , Richard v. Louisiana Extended Care Ctrs. and Coleman v. Deno , supra . She concludes that her claims fall outside of MMA and should be allowed to proceed.

No action against a health care provider under MMA, or against his insurer, "may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel" in accordance with MMA. La. R.S. 40:1231.8 B(1)(a)(i). Any tort suit filed before completion of the MRP process is subject to dismissal on an exception of prematurity. Blevins v. Hamilton Med. Ctr. Inc. , 2006-127 (La. 6/29/07), 959 So.2d 440 ; McLemore v. Westwood Manor Nursing & Rehab. LLC , 37,450 (La. App. 2 Cir. 8/20/03), 852 So.2d 1170. Any claimant requesting an MRP must pay the filing fee within 45 days after the confirmation of receipt of claim. R.S. 40:1231.8 A(1)(c). Failure to pay the filing fee within the 45 days renders the request for MRP "invalid and without effect." R.S. 40:1231.8 A(1)(e); Lewis v. Serenity Springs Hosp. , supra .

Ms. Butler does not deny that she failed to pay the filing fee on her request for MRP, even after the Department of Administration advised her of the 45-day deadline. Thus, her request for MRP was invalid and without effect; the situation is as though she never requested an MRP. The instant suit is, therefore, premature to the extent that it alleged any conduct covered by MMA. The district court did not err in sustaining Olive Branch's exception of prematurity.

This specification of error lacks merit.

Exception of No Cause of Action

By her second specification of error, Ms. Butler urges the district court erred in sustaining the peremptory exception of no cause of action and in finding no allegations of specific negligence or intentional wrongs, or any other basis for a cause of action. She reiterates that the legislature never intended for every act , by any health care provider during the patient's confinement in a nursing home, to be covered by MMA, Richard v. La. Extended Care Ctrs. , supra ; that intentional acts are expressly excluded from MMA, La. R.S. 40:1231.1 A(13); and that a particular wrong must be "treatment related" to fall under MMA, Coleman v. Deno , supra . She shows that various conduct has been found not to be malpractice, such as failing to change a patient's adult diapers for long periods of time, Henry v. West Monroe Guest House , supra ; allowing a 90-year-old patient to walk outside, where he fell and broke his hip, Booty v. Kentwood Manor Nursing Home , 483 So.2d 634 (La. App. 1 Cir. 1985), writ denied , 486 So.2d 754 (1986) ; and providing a hospital bed on which the hinge broke, allowing the cervical patient to fall from the sitting to the reclining position and re-injure his neck, Sewell v. Doctors Hosp. , supra . She argues that she has alleged, or could allege, acts that were intentional or not treatment-related, and should be granted leave of court to amend her petition to state them more clearly.

The purpose of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. McCarthy v. Evolution Petr. Corp. , 2014-2607 (La. 10/14/15), 180 So.3d 252. The sufficiency of the petition presents a legal issue and is subject to de novo review. Id.

Malpractice is defined by La. R.S. 40:1231.1 A(13), in pertinent part, as

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient * * * and also includes all legal responsibility arising from acts or omissions * * * in the training or supervision of health care providers * * *.

Tort is defined "as any breach of duty or any negligent act or omission proximately causing injury or damage to another." La. R.S. 40:1231.1 A(22). Health care is defined by La. R.S. 40:1231.1 A(9) as

[A]ny act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement[.]

The courts have held that MMA and its limitations on tort liability for qualified health care providers apply only to claims arising from medical malpractice, and that all other tort liability on the part of a qualified health care provider is governed by general tort law. Coleman v. Deno , supra ; LaCoste v. Pendleton Methodist Hosp. , 2007-0008 (La. 9/5/07), 966 So.2d 519. In Coleman v. Deno , supra , the court set out six factors to assist a court in determining whether a claim sounds in medical malpractice and is subject to MMA:

(1) whether the particular wrong is "treatment related" or caused by a dereliction of professional skill;
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient's condition;
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

We have closely examined Ms. Butler's petition in light of the statutory definitions and the analytical guidelines of Coleman v. Deno , supra , and, on de novo review, find that all her allegations fall under MMA.

In ¶ 3, she alleged "inadequate medical treatment" and "inappropriate medicines being dispensed," which are perhaps the quintessential elements of malpractice, as defined in R.S. 40:1231.1 A(13). She also alleged "lack of nutrition," but failure to provide food and water to nursing home patients is considered to be a breach of duty to provide health care, Mineo v. Underwriters at Lloyds, London , 2007-0514 (La. App. 4 Cir. 10/22/08), 997 So.2d 187. Further, failure to turn a bedridden patient, with the result that bedsores occur, is also considered to be a breach of the duty to provide health care, Hubbard v. North Monroe Med. Ctr. , 42,744 (La. App. 2 Cir. 12/12/07), 973 So.2d 847, writ denied , 2008-0101 (La. 3/7/08), 977 So.2d 907 ; Mitchell v. Rehabilitation Hosp. of New Orleans Inc. , 2006-0910 (La. App. 4 Cir. 2/14/07), 953 So.2d 75, writ denied , 2007-0569 (La. 9/26/08), 992 So.2d 975. This conduct falls under MMA.

In ¶ 4, she alleged violations of NHRBR for which she sought damages. Since its amendment by 2003 La. Acts No. 506, § 1, La. R.S. 40:2010.9 has provided an exclusive remedy of injunctive relief, plus attorney fees and costs. Furlow v. Woodlawn Manor Inc. , 39,485 (La. App. 2 Cir. 4/20/05), 900 So.2d 336, writ denied , 2005-1320 (La. 12/9/05), 916 So.2d 1064 ; Davis v. St. Francisville Country Manor LLC , 2005-0072 (La. App. 1 Cir. 2/10/06), 928 So.2d 549, writ denied , 2006-0604 (La. 5/26/06), 930 So.2d 25. There is no longer a cause of action for damages under NHRBR.

In ¶ 5, she alleged "negligence per se," a concept that has been rejected by the Louisiana courts. Galloway v. State , 94-2747 (La. 5/22/95), 654 So.2d 1345 ; Ducote v. Boleware , 2015-0764 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, writ denied , 2016-0636 (La. 5/20/16), 191 So.3d 1071. Specifically, she reiterated Olive Branch's failure to provide appropriate health care, "adequate care and nutrition," which, again, are the hallmarks of malpractice, R.S. 40:1231.1 A(13). She also alleged that Olive Branch left Mr. Butler "unattended and unsupervised for extended periods of time," but failure to attend to or supervise a patient is also recognized as malpractice or failure to provide health care, Cardwell v. Oaks Care Center LLC , 2017-420 (La. App. 3 Cir. 12/13/17), 258 So.3d 720 ; Ferrara v. Starmed Staffing LP , 2010-0589 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, writ denied , 2010-2484 (La. 2/4/11), 57 So.3d 311 ; Guillory v. Royal Inc. , 2007-754 (La. App. 3 Cir. 12/5/07), 971 So.2d 1234. This conduct falls under MMA.

In ¶ 6, she alleged "intentional acts, acts of negligence and deviations from standard of care," the latter two being reiterations of factual claims that we have determined to fall under MMA. Intentional conduct is excluded from the definition of malpractice, Porter v. Southern Oaks Nursing & Rehab. Ctr. , 49,807 (La. App. 2 Cir. 5/20/15), 165 So.3d 1197, and intent need be alleged only generally, La. C.C.P. art. 856. The courts have held, however, that something more than a conclusory allegation of intentional conduct is required to state a cause of action. Baker v. LSU Health Sciences Ctr. , 39,200 (La. App. 2 Cir. 12/15/04), 889 So.2d 1178, 194 Ed. L. Rep. 1032. Where special statutes limit the tort cause of action to claims based on intentional conduct, the plaintiff is required to allege at least some facts; the mere invocation of the word "intentional" will not create a cause of action. Daigre v. International Truck & Engine Corp. , 2010-1379 (La. App. 4 Cir. 5/5/11), 67 So.3d 504, writ denied , 2011-1099 (La. 9/16/11), 69 So.3d 1144 ; Landry v. Uniroyal Chem. Co. , 94-1274 (La. App. 1 Cir. 3/3/95), 653 So.2d 1199, writ denied , 95-1381 (La. 9/15/95), 660 So.2d 461 ; cf. Cador v. Deep South Equip. Co. , 2014-1371 (La. App. 1 Cir. 3/6/15), 166 So.3d 344. On de novo review, this petition chronicles a history of negligence and substandard conduct, which fall under MMA. It does not state a cause of action in tort. The district court committed no legal error in sustaining the exception of no cause of action.

Finally, Ms. Butler suggests that she should be granted leave of court to amend her petition to cure these defects. Amendment in this situation is governed by La. C.C.P. art. 934 :

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

As noted earlier, the district court, in its first judgment, sustained exceptions of prematurity and prescription , dismissing Ms. Butler's MMA claims with prejudice. Ms. Butler did not appeal the ruling as to prescription, so that judgment is final. Grimes v. Louisiana Medical Mut. Ins. Co. , 2010-0039 (La. 5/28/10), 36 So.3d 215 ; Hudspeth v. Smith , 42,647 (La. App. 2 Cir. 11/7/07), 969 So.2d 793. Because the MMA claims are prescribed, there is no benefit in amending the petition in an attempt to refine the framing of the cause of action. Leave to amend is denied.

This specification of error lacks merit.

CONCLUSION

For the reasons expressed, the judgments are affirmed. All costs are to be paid by the plaintiff, Donna Butler-Bowie.

AFFIRMED .

      Her filing with the Department of Administration was identical to her tort petition. This probably explains the unusual request, in the tort petition, for an MRP.

      We also note that Ms. Butler's appellate brief, prepared by counsel, asserts that she is Mr. Butler's daughter.