text:
    Robert Frank PALERMO v. CENTURY INDEMNITY COMPANY, et al.
    17-825
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2018
   Paul J. Politz, Paula M. Wellons, D. Ashbrooke Tullis, Taylor, Wellons, Politz & Duhe, APLC, 1515 Poydras Street, Suite 1900, New Orleans, LA 70112, (504) 525-9888, COUNSEL FOR DEFENDANT/THIRD PARTY PLAINTIFF/APPELLANT: Certain Underwriters at Lloyd's, London

Tyson B. Shofstahl, Leslie M. Henry, Louis P. LaCour, Adams & Reese, LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR DEFENDANTS/APPELLEES: ConocoPhillips Company, Hartford Accident and Indemnity Company

Benjamin J. Guilbeau, John J. Simpson, Stockwell, Sievert, Viccellio, Clements, & Shaddock, L.L.P., P. O. Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR DEFENDANTS/APPELLEES: PPG Industries, Inc., Hartford Accident and Indemnity Company

James M. Garner, Martha Y. Curtis, Amanda R. Schenck, Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC, 909 Poydras Street, Suite 2800, New Orleans, LA 70112, (504) 299-2100, COUNSEL FOR DEFENDANT/APPELLEE: Century Indemnity Company

Michael D. Lonegrass, Rodger G. Green, Jr., Galloway, Johnson, Tompkins, Burr & Smith, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, (504) 525-6802, COUNSEL FOR DEFENDANT/APPELLEE: Crown, Cork & Seal Company

Jeffrey T. Gaughan, Wells T. Watson, Baggett, McCall, Burgess, Watson & Gaughan, P. O. Drawer 7820, Lake Charles, LA 70605-7820, (337) 478-8888, COUNSEL FOR PLAINTIFFS/APPELLEES: Robert Frank Palermo Roberta Palermo

Lauren D. Brossette, Kenneth R. Spears, Claudia Gary, Spears & Gary, LLC, One Lakeshore Drive, Suite 900, Lake Charles, LA 70629, (337) 513-4333, COUNSEL FOR DEFENDANT/APPELLEE: CanadianOxy Offshore ProductionCompany

Katherine O'Hannan, Joseph P. Guichet, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, 601 Poydras Street, Suite 2775, New Orleans, LA 70130, (504) 568-1990, COUNSEL FOR DEFENDANT/APPELLEE: Travelers Indemnity Company

Mary Arthur, Forman Watkins Krutz, 701 Poydras Street, Suite 4350, New Orleans, La 70139-6001, (504) 799-4383, COUNSEL FOR DEFENDANT/APPELLEE: Owens-Illinois, Inc.

Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

Certain Underwriters at Lloyd's, London ("Certain Underwriters") appeals the granting of peremptory exceptions of res judicata dismissing its third-party demands against ConocoPhillips Company ("ConocoPhillips"), PPG Industries, Inc. ("PPG"), Hartford Accident and Indemnity Company ("Hartford") as the alleged insurer of ConocoPhillips and PPG, Century Indemnity Company ("Century") as the alleged insurer of PPG and certain PPG Industries, Inc. executive officers, Travelers Casualty and Surety Company and Travelers Indemnity Company (collectively "Travelers") as the alleged insurer of PPG and certain PPG Industries, Inc. executive officers, and Crown, Cork & Seal Company, Inc. ("CCS"), all collectively referred to as Appellees. For the reasons herein, we reverse the decisions of the trial court.

FACTS AND PROCEDURAL HISTORY

On January 9, 2015, Plaintiffs, Robert Palermo and his wife Roberta Palermo, initiated a personal injury action against CanadianOxy Offshore Production Company ("CanadianOxy") and its insurers, including Appellant, Certain Underwriters, seeking damages for injuries allegedly sustained by Robert Palermo resulting from his purported occupational exposure to asbestos-containing materials. Certain Underwriters thereafter filed an Answer and Affirmative Defenses to Plaintiffs' Original Petition and filed Third-Party Demands, asserting incidental actions seeking contribution against several entities, including ConocoPhillips, PPG, Hartford as the alleged insurer of ConocoPhillips and PPG, Century as the alleged insurer of PPG and certain PPG officers, CCS, and Travelers as the alleged insurer of PPG and certain PPG officers. ConocoPhillips and Hartford filed exceptions of improper service of process, insufficiency of citation, and lack of jurisdiction. The trial court sustained the exceptions and set a deadline for Certain Underwriters to re-cite and re-serve the third-party defendants. After Certain Underwriters failed to re-serve the parties within the time specified by the trial court's order, it ordered the dismissal of the Third-Party Demands without prejudice, pursuant to La. Code Civ. P. art. 932(B), on March 30, 2016. The trial court executed a written judgment to that effect on April 21, 2016.

Meanwhile, on April 14, 2016, Certain Underwriters filed a Motion and Order for Leave to File First Supplemental Third-Party Demand. Leave was granted by the trial court on April 18, 2016, though Certain Underwriters' third-party demand had been dismissed. The amended petition to the dismissed third-party action was then cited and served on Appellees herein. Appellees subsequently filed numerous exceptions to the service of the dismissed action. On June 30, 2016, the trial court held a hearing and found that no third-party action was pending in light of the April 21, 2016 judgment of dismissal, thereby maintaining the exceptions. On August 30, 2016, the trial court executed a written judgment submitted by the parties, dismissing without prejudice the re-cited and re-served third-party actions.

On September 22, 2016, Certain Underwriters filed another third-party demand naming Appellees, among others. On February 3, 2017, the trial court held a hearing on the various Peremptory, Declinatory and Dilatory Exceptions to the September 22, 2016 Third-Party Demand filed by ConocoPhillips, Hartford, and PPG, including an Exception of Res Judicata. All other Appellees joined in the exceptions, except Travelers who filed separate exceptions to the demand but did not assert res judicata at that time. The trial court maintained Appellees' Peremptory Exception of Res Judicata, finding that La. R.S. 13:4231, et seq., barred Certain Underwriters from filing another third-party demand in the same proceeding, as the court had previously entered a final judgment dismissing Certain Underwriters' third-party action without prejudice. Thereafter, on April 11, 2017, the trial court entered a written judgment dismissing Certain Underwriters' September 22, 2016 third-party demands against Appellees, not including Travelers, without prejudice. Certain Underwriters appealed the granting of the exception to this court in docket number 17-825.

Following this decree from the trial court, Travelers filed a separate exception of res judicata, which was heard on June 22, 2017. On July 28, 2017, the trial court signed a written judgment granting Travelers' exception of res judicata, predicated on the same grounds as its April 11, 2017 ruling, and dismissing Certain Underwriters' third-party demands without prejudice. Certain Underwriters appealed the trial court's judgment, maintaining Travelers' res judicata exception, in docket number 17-1182. This court then consolidated 17-825 and 17-1182 on January 22, 2018, pursuant to an unopposed motion filed by Certain Underwriters.

On appeal, Certain Underwriters asserts that the trial court erred in granting Appellees' exceptions of res judicata as to the re-filed September 22, 2016 Third-Party Demand.

The issue before us is whether the trial court erred when it maintained the exceptions of res judicata filed by Appellees, ConocoPhillips, PPG, Hartford, Century, Travelers, and CCS, in response to Certain Underwriters' September 22, 2016 third-party demand. When an exception of res judicata is raised before the case is submitted and evidence is received on the exception, the standard of review on appeal is traditionally manifest error. Leray v. Nissan Motor Corp. in U.S.A. , 05-2051 (La.App. 1 Cir. 11/3/06), 950 So.2d 707. "However, '[t]he res judicata effect of a prior judgment is a question of law that is reviewed de novo.' " Fogleman v. Meaux Surface Prot., Inc. , 10-1210, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059, writ denied , 11-712 (La. 5/27/11), 63 So.3d 995 (quoting Morales v. Parish of Jefferson , 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672 ). The question presented here is the res judicata effect of the previous judgment of the trial court, dismissing without prejudice Appellant's third-party demands against Appellees. Accordingly, we conduct a de novo review to determine whether the trial court was legally correct in sustaining the exceptions of res judicata in favor of Appellees.

The purpose of the exception of res judicata is to bar the re-litigation of a subject matter arising from the same transaction or occurrence as that of a previous suit. Ave. Plaza, L.L.C. v. Falgoust , 96-173 (La. 7/2/96), 676 So.2d 1077 ; La. R.S. 13:4231. It promotes judicial efficiency and a final resolution of disputes. Terrebonne Fuel & Lube, Inc. v. Placid Ref. Co. , 95-654, 95-671 (La. 1/16/96), 666 So.2d 624. "On the trial of the peremptory exception raising the objection of res judicata , the burden of proving the facts essential to sustaining the objection is on the party pleading the objection." Union Planters Bank v. Commercial Capital Holding Corp. , 04-871, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception raising the objection of res judicata must be overruled and the second lawsuit maintained. Denkmann Assocs. v. IP Timberlands Operating Co., Ltd. , 96-2209 (La.App. 1 Cir. 2/20/98), 710 So.2d 1091, writ denied , 98-1398 (La. 7/2/98), 724 So.2d 738. The concept should be rejected when doubt exists as to whether a [party's] substantive rights actually have been previously addressed and [whether those rights have been] finally resolved." Patin v. Patin , 00-969, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676 (emphasis added).

With the 1990 amendment to the res judicata statute, however, the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action. Avenue Plaza at p. 6, 676 So.2d at 1080. See also La. R.S.13:4231 cmt. a (1990). While this is the central inquiry under the current statute, it is not the only inquiry. A reading of La. R.S. 13:4231 reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Burguieres v. Pollingue , 02-1385, pp. 7-8 (La. 2/25/03), 843 So.2d 1049, 1053.

The trial court and Appellees relied on the holding in Johnson v. University Medical Center in Lafayette , 13-40 (La. 3/15/13), 109 So.3d 347, for the proposition that the dismissal of the third-party demands of Certain Underwriters, without prejudice and designated as a final judgment, has res judicata effect barring the refiling of the demands. In Johnson , the court stated:

Louisiana Code of Civil Procedure Article 1673 provides, in pertinent part: "A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action." (Emphasis added.) When an action has been dismissed by final judgment, that action is at an end, and a plaintiff cannot thereafter assert new allegations or demands in that proceeding; the plaintiff's remedy is to file a new and separate suit. See Hayes v. Muller , 248 La. 934, 183 So.2d 310 (La.1966). The dismissal of the plaintiff's suit, as instituted by her March 16, 2006 petition, was fully and finally dismissed, without prejudice, pursuant to LSA-R.S. 13:5107(D), by this court's November 21, 2007 judgment, rendered in Johnson v. University Medical Center in Lafayette , [07-1683 (La. 11/21/07), 968 So.2d 724 ]. That judgment of dismissal is now res judicata, which can be noticed by either the trial or an appellate court on its own motion. See LSA-C.C.P. art. 927.
Accordingly, we grant the application for certiorari in this case, and we conclude that any further allegations or demands are now barred in this suit.

Id. at 349.

We find that the trial court in this case misconstrued the holding in Johnson . In Johnson , the plaintiff filed suit against State entities in a medical malpractice action. The trial court dismissed the case without prejudice. Plaintiff, after the supreme court upheld the dismissal of the suit in 2007 in Johnson v. University Medical Center in Lafayette, 07-1683 (La. 11/21/07), 968 So.2d 724, had the same defendants re-served within the same lawsuit in an attempt to continue pursuing the claim. The supreme court correctly noted that the plaintiff's main demand had been dismissed, that the dismissal was final, and that the case could not be resurrected thereafter within that same proceeding. Thus, the supreme court recognized the exception of res judicata on its own motion, as authorized by La. Code Civ. P. art. 927(B). See Johnson , 109 So.3d 347. The optimum language, overlooked by the trial court and Appellees in argument herein, is the supreme court's conclusion that the re-filing of the claim is barred "in this suit." It goes without saying that once the main demand has been dismissed, there is no suit in which to refile a new claim. It must be done by the filing of a new suit. That is not the situation presented here.

The instant cases differ dramatically from the facts reviewed in Johnson . Here, the main demand of the plaintiffs is still pending. The initial attempt at the filing of the incidental third-party demands was dismissed, but the dismissal was without prejudice, based on procedural grounds as opposed to substantive ones. Clearly, as acknowledged by the third-party defendants and Appellees herein, Certain Underwriters could file its claims in a separate, new lawsuit. "It is elementary, however, that an exception of Res Judicata (the authority of the thing adjudged) must be predicated upon a final judgment." McCoy v. Tangipahoa Parish Sch. Bd. , 308 So.2d 382, 384 (La.App. 1 Cir.), writ denied , 310 So.2d 856 (La.1975). "A judgment that determines the merits in whole or in part is a final judgment." La. Code Civ. P. art. 1841. The main demand of the plaintiff was not dismissed as a final judgment in these suits. The judgment of dismissal of the third-party demands did not even begin to determine the merits of the claims set forth in the third-party demands. The dismissal was based solely on procedural grounds. It is clear Certain Underwriters' substantive rights were not addressed.

Patin , 808 So.2d 673. The incidental third-party demands are still viable, are not prescribed, and have not otherwise been substantively resolved. That being the case, there is no legal impediment to the re-filing of the third-party demands in the still pending main demand of the plaintiffs herein.

Appellees assert that because the judgment dismissing the original third-party demands was designated a "final judgment," the subsequent re-filing of the third-party demands within the instant suit should not be allowed. This designation is not, however, the sine qua non .

"A final judgment is appealable in all cases in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814." La. C.C.P. ART. 2083 A. "A judgment that determines the merits in whole or in part is a final judgment." La. C.C.P. ART. 1841. "No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated." La. C.C.P. ART. 1911.
"A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment." La. C.C.P. ART. 1841. "An interlocutory judgment is appealable only when expressly provided by law." La. C.C.P. ART. 2083 C; see, e.g., La. C.C.P. ART. 3612 B (relating to the denial or the granting of a preliminary injunction), or La. C.C.P. ART. 592A(3)(b) (relating to certification in class actions). If not expressly provided by law, there is no right to appeal an interlocutory judgment. See, e.g., La. C.C.P. ART. 968 ("An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment.").

Favrot v. Favrot , 10-986, pp. 2-3 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102-03, writ denied , 11-636 (La. 5/6/11), 62 So.3d 127.

"A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial" while "[a] judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action." La. Code Civ. P. art. 1673. The relevance of a dismissal with prejudice, as opposed to without prejudice, is that the dismissal with prejudice has res judicata effect on the parties to the suit dismissed, whereas the dismissal without prejudice allows the re-filing of the matter at hand. Sims v. Am. Ins. Co. , 12-204 (La. 10/16/12), 101 So.3d 1. In the instant case, the dismissal of the third-party demands was without prejudice. Thus, there is no res judicata effect from the original dismissal. Where the main demand in the suit is still pending, a judgment of dismissal without prejudice does not preclude the re-filing of the dismissed claims in the original suit.

Louisiana Code of Civil Procedure Art. 1673 states that [sic] in pertinent part that "... a judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action." The Official Revision Comment notes that "(a) case dismissed without prejudice can be reinstituted; the judgment is neither final or definitive." We interpret the word "reinstitute" to mean "reestablish". The wording "shall not constitute a bar to another suit" in LSA-C.C.P. Art. 1673 does not necessarily mean that a pending suit amended to join the same defendants shall be barred. Where there are no other viable defendants remaining in the original suit, a new suit is required. Louisiana C.C.P. Art. 933's general rule-that if a dilatory exception pleading prematurity is sustained, the suit shall be dismissed-is mandated where no co-defendant tortfeasors remain in the original suit. However, where a viable defendant remains in an existing lawsuit, it is an unnecessary and useless act to require plaintiffs to file a new suit and then move to consolidate the cases, warranting a wasteful, burdensome procedure. We find no prejudice to the rights of the other parties in allowing plaintiffs to amend their original petition to join additional defendants who have been dismissed without prejudice when a viable defendant remains in an existing lawsuit.

Barracliff v. E. Jefferson Gen. Hosp. , 573 So.2d 1200, 1203 (La.App. 4 Cir.), writ denied , 575 So.2d 825 (La.1991).

In the instant case, it would likewise constitute an "unnecessary and useless act" to require Certain Underwriters to file a new, separate suit to assert its still viable third-party demands. Id. Accordingly, we reverse the rulings of the trial court and remand for further proceedings.

DISPOSITION

For the reasons herein, the judgments of the trial court granting the exceptions of res judicata are reversed, in both 17-825 and 17-1182. The cases are remanded for proceedings consistent herewith. Costs of these proceedings are assessed to all Appellees: ConocoPhillips Company; PPG Industries, Inc.; Hartford Accident and Indemnity Company, as the alleged insurer of ConocoPhillips and PPG; Century Indemnity Company, as the alleged insurer of PPG and certain PPG Industries, Inc. executive officers; Travelers Casualty and Surety Company and Travelers Indemnity Company as the alleged insurer of PPG and certain PPG Industries, Inc. executive officers; and Crown, Cork & Seal Company, Inc.

REVERSED AND REMANDED .

      Travelers was not originally an appellee in the instant suit. However, following a second appeal filed by Certain Underwriters based on the granting of Travelers' exception of res judicata by the trial court, the two matters were consolidated.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Brenna Ash MILLER, et al v. ACADIAN AMBULANCE SERVICE, INC., et al
    17-1096
    Court of Appeal of Louisiana, Third Circuit.
    5-23-2018 Rehearing Denied August 1, 2018
    Robert J. David, Walter C. Morison, IV, Kathy A. Rito, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., 1100 Poydras St., Suite 2800, New Orleans, LA 70163-2800, (504) 522-2304, COUNSEL FOR PLAINTIFFS-APPELLANTS: Brenna Ash Miller, Brenna Ash Miller on behalf of the Estate of Richard A. Miller, Jr., Brenna Ash Miller as legal guardian of minor Skylar Miller
    Clint L. Pierson, Pierson Law Firm, 5100 Village Walk, Suite 101, Covington, LA 70433, (985) 809-1577, COUNSEL FOR PLAINTIFFS-APPELLANTS: Brenna Ash Miller, Brenna Ash Miller on behalf of Estate of Richard A. Miller, Jr., Brenna Ash Miller as legal guardian of minor Skylar Miller
    Charles J. Foret, Jason R. Garrot, Briney Foret & Corry, LLP, 413 Travis Street, Suite 200, P.O. Drawer 51367, Lafayette, LA 70505-1367, (337) 237-4070, COUNSEL FOR DEFENDANT-APPELLEE: Northshore EMS, L.L.C.
    Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret, Judges.
   PERRET, Judge.

Brenna Ash Miller, individually, as the duly appointed guardian of the minor child, Skyler Miller, and as the individual authorized to make the claim on behalf of the estate of Richard A. Miller, Jr., appeals the judgment of the trial court that granted summary judgment in favor of defendant, Northshore EMS, L.L.C., and dismissed her lawsuit against it with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

In this court's prior opinion, Miller v. Acadian Ambulance Service, Inc., 13-1269, pp. 1-5 (La.App. 3 Cir. 3/5/14), 134 So.3d 250, 252-254, (footnote omitted) writ denied , 14-698 (La. 5/16/14), 139 So.3d 1028, this court recited the facts and procedural history, as follows:

On December 28, 2011, Richard A. Miller, Jr. ("Mr. Miller") was involved in a serious motorcycle accident in Washington Parish. The Northside [Northshore] Emergency Medical Service ("Northshore") responded to a 911 call and transported Mr. Miller to the Riverside Medical Center ("Riverside") where he was attended to by Dr. Barbara Cohn and other Riverside Emergency Room personnel.
Dr. Cohn determined that Mr. Miller's condition was critical. As a result of the accident, he had sustained extensive internal injuries, which included lacerations of the lung, heart, and kidney, extensive blood loss, multiple fractures, and a flail chest, which is a crushing chest injury due to the fracture of several ribs.
In Dr. Cohn's opinion, Mr. Miller's critical medical condition required her to contact LERN [Louisiana Emergency Response Network], as Riverside did not have the necessary level of medical resources to properly treat Mr. Miller's injuries. Dr. Cohn's call to LERN was the first step in initiating the procedure to have Mr. Miller transported to a trauma facility equipped to treat Mr. Miller's extensive injuries.
LERN was designed to serve as the clearing house for all of the resources of each medical facility and to determine which facility is best equipped to treat a particular patient's condition. The LERN dispatch center is staffed with a trained paramedic who receives the incoming calls, and based on the information provided from the transferring health care provider, LERN makes a determination as to the appropriate trauma facility to treat the injured patient.
The LERN dispatcher informed Dr. Cohn that Mr. Miller should be transferred to Interim LSU [Interim LSU Public Hospital]. A call was then placed by a member of the Riverside staff at 5:36 p.m. to Acadian [Acadian Ambulance Service, Inc.] to request that a helicopter be dispatched to Riverside in order to transport Mr. Miller to Interim LSU.
The recorded telephone conversation between Riverside and Acadian reflects that Riverside was informed that due to a required crew change and the need for refueling of its helicopter, it would be an hour to an hour and fifteen minutes before Acadian could respond and arrive at Riverside to transport Mr. Miller. The Riverside staff member indicated to the Acadian dispatcher that if this period of time was not acceptable to Dr. Cohn, he would call back. No call canceling the helicopter transportation of Mr. Miller was received, and the Acadian helicopter arrived at Riverside at 7:08 p.m., some seventeen minutes after the anticipated arrival time.
Once the determination by LERN was made to transport Mr. Miller to Interim LSU, Dr. Cohn began the testing on Mr. Miller required by Interim LSU prior to his transport by Acadian. Upon arrival at Riverside, Acadian was not permitted to immediately transport Mr. Miller as the testing required by Interim LSU was not complete. Once the testing was completed, Mr. Miller was cleared for transport at 7:40 p.m., thirty-two minutes after Acadian's arrival at Riverside.
Mr. Miller was taken to the aircraft by Riverside personnel and Acadian's EMT/paramedic Kimberly Wesley ("Wesley"). Mr. Miller was loaded and secured for takeoff. Wesley provided constant critical care monitoring and medical treatment throughout the transport, which included placing Mr. Miller on a ventilator and suctioning his chest tube. Mr. Miller's condition rapidly declined right before the helicopter landed in New Orleans near the Superdome, as Interim LSU did not have a helicopter landing pad and the Superdome site was the closest landing pad to Interim LSU.
Mr. Miller was then transported by ambulance to Interim LSU, with the ambulance staff continuing to attempt to maintain Mr. Miller's medical status. Mr. Miller unfortunately died at approximately the same time as his arrival at Interim LSU at approximately 8:12 p.m.
On December 27, 2012, the Millers timely filed a medical malpractice complaint with the Division of Administration and the Louisiana Patient's Compensation Fund, naming Interim LSU, LERN, and Acadian ....
On December 27, 2012, the Millers also filed a petition for damages in the Fifteenth Judicial District Court, Parish of Lafayette naming LERN and Acadian as defendants. The Millers' "First Supplemental and Amending Petition for Damages," filed on April 2, 2013, added three other health care providers as defendants, Interim LSU, Northside EMS, LLC, Barbara Cohn, M.D., and her insurer, Proassurance Specialty Insurance Company ("Proassurance").
All health care provider defendants, except Northside, filed dilatory exceptions of prematurity in response to the Millers' petitions. Each asserted they were qualified health care providers pursuant to the LMMA [Louisiana Medical Malpractice Act], La.R.S. 40:1299.39 & 40:1299.41. As qualified health care providers under the LMMA, providing medical care to Mr. Miller, each claimed to be entitled to have the Millers' claims dismissed without prejudice pending review and notification of an opinion by the MRP [Medical Review Panel], pursuant to La.R.S. 40:1299.47(A)(2)(a) & (B)(1)(a)(i). In granting the health care provider defendants' exceptions, the exceptors assert that the Millers would not be prejudiced, as under the LMMA prescription is suspended in state district court until the MRP sends notification of its opinion, following which the Millers would have ninety days to file suit in state district court.
A hearing was held on the health care defendants' exception of prematurity on July 22, 2013. At the beginning of the hearing, the dilatory exception of prematurity filed by Dr. Barbara Cohn and her insurer, Proassurance, was granted by the trial court without opposition, and the Millers' claims as to these defendants were dismissed without prejudice in a separate judgment signed by the trial court on July 22, 2013. The dismissal of Dr. Cohn and her insurer is not subject to this appeal.
The hearing on Acadian, LERN, and Interim LSU's exceptions of prematurity continued with oral argument, after which the trial court took the matter under advisement. The trial court issued its written reasons for judgment on July 26, 2013, and granted the exceptions of prematurity dismissing the Millers' claims without prejudice for the three remaining health care provider defendants, Acadian, LERN, and Interim LSU. A judgment reflecting the trial court's ruling was signed on August 15, 2013, and is the source of the Millers' timely appeal to this court.

On March 5, 2014, this court affirmed the trial court's judgment that granted exceptions of prematurity filed on behalf of Acadian, LERN, and Interim LSU, dismissing without prejudice the claims of Brenna Ash Miller, individually and as the duly appointed guardian of the minor child Skyler Miller, and the individual authorized to make the claim on behalf of the estate of Richard A. Miller, Jr., (collectively "Plaintiff") pursuant to the LMMA.

Thereafter, the only claims that remained in this litigation were those against defendant Northshore. Plaintiff alleges that Northshore was negligent in its treatment of Mr. Miller by transporting him to Riverside instead of a trauma center, in failing to train its employees of proper protocols, and that it breached its agreement with LERN.

On June 22, 2017, Northshore filed a motion for summary judgment alleging that there were no genuine issues of material fact, and as a matter of law, Northshore has no liability to Plaintiff for the alleged damages.

In support of its motion for summary judgment, Northshore attached: (1) the affidavit of the Northshore paramedic, Ashley Harper ("Ms. Harper"); (2) certified medical records from Riverside pertaining to Mr. Miller; (3) the deposition of Dr. Cohn; (4) the deposition of David Marcus, on behalf of Northshore; (5) the corporate deposition of LERN; (6) certified medical records from Interim LSU pertaining to Mr. Miller; (7) Mr. Miller's autopsy report; and (8) the affidavit of Dr. Joseph Holley, Jr.

On July 21, 2017, Plaintiff filed an opposition to the motion for summary judgment alleging that issues exist as to whether Northshore is entitled to civil immunity under La.R.S. 40:1133.13, and that even if La.R.S. 40:1133.13 is applicable, material issues of fact exist as to whether Northshore, through "the actions of its paramedic, Ms. Harper, was grossly negligent in providing emergency medical services to the decedent, Richard Miller." Plaintiff argues that Ms. Harper did not follow proper protocol and "unilaterally decided to bring Mr. Miller to the local emergency department at Riverside Medical Center because of his 'shortness of breath' and 'vital signs.' "

In support of her opposition, Plaintiff attached: (1) medical records from Northshore; (2) the deposition and affidavit of Ms. Harper; (3) the deposition of Dr. Cohn; (4) excerpts of David Marcus's deposition, on behalf of Northshore; (5) portions of the LERN deposition and a copy of the LERN protocol guidelines; (6) answers to interrogatories; (7) the affidavits of Roy D. Ary, Jr., and Dr. Carl J. Hauser; and (8) a copy of the Washington Parish Major Trauma Destination Protocol.

On July 25, 2017, Northshore filed a supplemental memorandum in support of its motion for summary judgment arguing that Plaintiff's opposition, with exhibits, was untimely filed pursuant to the provisions of La.Code Civ.P. art. 966.

On July 26, 2017, Plaintiff filed an ex parte motion to continue the hearing on the motion for summary judgment stating that "Ms. Miller inadvertently filed her opposition to summary judgment on July 21, 2017, less than fifteen days before the hearing on this motion, set for July 31, 2017." Plaintiff requested that the trial court continue the hearing in order to provide "both parties a fair opportunity to present their arguments on the issue of liability, and [that a continuance] does not impact any other procedural deadline established by the court."

Also on that date, Northshore filed objections to and a motion to strike the affidavits of Dr. Carl Hauser and Dr. Roy Ary arguing that the affidavits were untimely and that the opinions of these doctors "concerning Northshore's breach of the standard of care for paramedics are not admissible because the doctors are not qualified to render such opinions."

After a hearing on July 31, 2017, the trial court denied Plaintiff's motion for a continuance, granted Northshore's objection to Plaintiff's exhibits and its motion to strike affidavits, and granted Northshore's motion for summary judgment, dismissing Plaintiff's case with prejudice. On August 9, 2017, the trial court signed a judgment that memorialized its ruling and further stated "[in] so ruling, the Court finds it would have ruled the same way even if plaintiff's exhibits and affidavits in opposition to the summary judgment were admitted into evidence." At the hearing, the trial court gave reasons for granting the summary judgment and stated, in pertinent part:

Even if I were to consider your affidavits of your expert[,] it wouldn't change the fact that there appears to be no liability on the part of the EMT. She had to fight with this patient for approximately nine minutes in the ambulance trying to keep his airway clean. He was pulling things out-pulling oxygen off of his face and pulling IVs out of his arms. Most of the time he was with a doctor and the doctor didn't see fit to transfer him-I believe in this case we're talking about to a New Orleans hospital from Washington, Louisiana. So I don't see how that would have made a difference. But they were filed too late, anyway, and I'm not going to allow them.

Plaintiff now appeals this judgment alleging the following five assignments of error: (1) the trial court erred in finding that La.R.S. 40:1133.13 provides Northshore statutory immunity against her negligence claims; (2) the trial court erred in granting summary judgment in finding that Northshore's paramedic met the standard of care in providing emergency trauma treatment to Mr. Miller; (3) the trial court erred in granting summary judgment based upon its impermissible credibility determinations, weighing of evidence, and findings of fact to conclude that summary judgment was appropriate; (4) the trial court erred in granting summary judgment in finding no genuine issues of material fact existed that Northshore was grossly negligent in providing emergency trauma treatment to Mr. Miller; and (5) the trial court abused its discretion in denying her motion to continue the hearing, despite the fact that her opposition to the motion for summary judgment was filed five days late.

STANDARD OF REVIEW:

An appellate court reviews a trial court's granting of a motion for summary judgment de novo. Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. "A fact is 'material' when its existence or nonexistence may be essential to [a] plaintiff's cause of action under the applicable theory of recovery." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Id. (quoting S. La. Bank v. Williams , 591 So.2d 375, 377 (La.App. 3 Cir. 1991), writs denied , 596 So.2d 211 (La.1992) ).

Louisiana Code of Civil Procedure Article 966(D)(1) discusses the mover's burden of proof on summary judgments, and states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

DISCUSSION:

The first issue to address is whether the trial court erred in denying Plaintiff's motion to continue the hearing on summary judgment and in striking her evidence in support of the opposition to summary judgment. Although Plaintiff admits that her opposition and exhibits were not timely filed, she "offered to cure the prejudice by agreeing to reset the hearing to a date of NSEMS' [Northshore's] own choosing, thus providing it ample time to reply to the opposition."

Louisiana Code of Civil Procedure Article 1601 provides that "[a] continuance may be granted in any case if there is good ground therefor." Under La.Code Civ.P. art. 1602, a continuance must be granted if "the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance." The court in Suarez v. Acosta , 15-750, pp. 9-10 (La.App. 5 Cir. 3/16/16), 194 So.3d 626, 632 (citations omitted) discussed the trial court's discretion in granting or denying a continuance and stated in pertinent part:

In determining whether to grant a continuance, the trial court must consider the particular facts in each case. Some factors to consider are diligence, good faith, and reasonable grounds. The trial court may also weigh the condition of the court docket, fairness to the parties and other litigants before the court, and the need for orderly and prompt administration of justice. A trial court has great discretion in granting or denying a motion for a continuance under La. C.C.P. art. 1601, and that discretion will not be disturbed on appeal in the absence of clear abuse of discretion.

In this case, Plaintiff did not allege any peremptory grounds for a continuance. Upon review of the record, and the fact that Northshore has been a defendant in this case since February 13, 2013, we do not find that the trial court abused its broad discretion in denying Plaintiff's motion for a continuance. Because we find no error in the trial court's ruling that denied the motion to continue, we also find that the opposition and exhibits were untimely as they were filed on July 21, 2017, which was ten days prior to the July 31, 2017 hearing, in violation of La.Code Civ.P. art. 966(B)(2). As stated in La.Code Civ.P. art. 966(B)(2) (emphasis added):

B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion .

Thus, "[t] he time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court." Buggage v. Volks Constructors , 06-175 p. 1 (La. 5/5/06), 928 So.2d 536, 536. Accordingly, we find that the trial court did not abuse its discretion when it followed the mandatory fifteen day rule and properly excluded Plaintiff's opposition and exhibits as untimely.

The second issue to address is whether the trial court erred in granting Northshore's motion for summary judgment and dismissing Plaintiff's suit against it with prejudice. On December 10, 2015, Plaintiff alleged the following negligence claims against Northshore in its Fourth Supplemental and Amending Petition, which states, in pertinent part:

66.

Had Northshore EMS properly and timely trained its employees on how and when to activate LERN, when it became a part of the LERN network on November 11, 2010, Ms. Harper and Mr. Holcomb would have known to utilize the LERN network in order to obtain medical care for Mr. Miller at the appropriate trauma facility.

67.

Petitioner avers that Northshore EMS was negligent in its failure to train and educate its employees on the availability and use of the LERN response network for treating and transporting patients with traumatic injuries.

68.

Petitioner avers that Northshore EMS' failure to train its employees to activate the LERN response network whenever a patient with traumatic injuries is encountered constituted a breach of[:] (1) its obligations to adhere to its own promulgated patient care protocols; (2) its duties to adhere to applicable written pre-hospital EMS protocols ... and/or[;] (3) its duties to provide patients with appropriate care ....

69.

Petitioner further avers that Northshore EMS' negligence in its failure to adhere to its internal protocols, as well as its applicable duties under the law, was a direct, proximate cause of the injuries Mr. Miller suffered in this case, including loss of chance of a better outcome, as well as those injuries and damages sustained by Ms. Miller and Skylar, the minor child.

70.

Additionally, Northshore EMS' failure to appropriately train its employees regarding their duty to initiate the LERN response network when providing pre-hospital services to a trauma patient constitutes a tortious breach [of] its contract with LERN and/or its agreement to provide appropriate emergency responses services to Mr. Miller.

Louisiana jurisprudence employs a duty-risk analysis to resolve ordinary negligence claims under La.Civ.Code art. 2315. Berthiaume v. Gros , 15-116, (La.App. 3 Cir. 6/3/15), 165 So.3d 1275. To prevail under a negligence claim, the plaintiff must prove five elements: "1) that the defendant had a duty to conform his conduct to a specific standard of care; 2) that the defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the plaintiff's injuries; 4) that the conduct was a legal cause of the plaintiff's injuries; and 5) actual damages." Id. at 1278. The Louisiana Supreme Court in Lemann v. Essen Lane Daiquiris, Inc. , 05-1095, p. 8 (La. 3/10/06), 923 So.2d 627, 633 stated that "[t]he duty of a paramedic can be broadly defined as the duty to render appropriate medical care based on the facts and circumstances of the medical situation with which they are presented."

Louisiana Revised Statute 40:1133.13, formerly cited as La.R.S. 40:1233, also addresses the legal duties that emergency medical technicians owe to patients, and states in pertinent part:

A. (1) Any emergency medical services practitioner, licensed pursuant to the provisions of this Part who renders emergency medical care to an individual while in the performance of his medical duties and following the instructions of a physician shall not be individually liable to such an individual for civil damages as a result of acts or omissions in rendering the emergency medical care, except for acts or omissions intentionally designed to harm, or for grossly negligent acts or omissions which result in harm to such an individual. Nothing herein shall relieve the driver of the emergency vehicle from liability arising from the operation or use of such vehicle.

By enacting La.R.S. 40:1133.13, "the Legislature granted EMTs a qualified immunity for liability from ordinary negligence claims; this immunity does not cover intentional or grossly negligent acts or omissions." Rathey v. Priority EMS, Inc. , 04-0199 p. 32 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, 462, writs denied , 05-0789 (La. 5/6/05), 901 So.2d 1107 ; 05-0802 (La. 5/6/05), 901 So.2d 1108. The Legislature "conditioned this immunity by limiting its application to circumstances in which EMTs are both (i) rendering emergency medical care to an individual while in the performance of their medical duties, and (ii) following the instructions of a physician." Id. at 461. However, there is a "protocol" exception to the requirement that the EMT be following the instructions of a physician. As the court stated in Rathey , 894 So.2d at 462 :

Legally, the trial court's reference to a "protocol" exception to the requirement that the EMT be following the instructions of a physician is based on well-settled jurisprudence. Discussing that exception (although not calling it an exception), we recently noted that "[i]n Ambrose [v. New Orleans Police Dep't Ambulance Serv. , 93-3099, 93-3110, 93-3112 (La. 7/4/94), 639 So.2d 216 ] ... this court held that an emergency room technician was considered to have been following the instructions of a physician, pursuant to R.S. 40:1235(A), whether he had received those instructions via electronic means or he was following a 'protocol,' defined as a prescribed set of instructions established by physicians of the Orleans Parish Medical Society." Johnson v. Foti , 2002-1995, p. 5 (La.App. 4 Cir. 4/9/03), 844 So.2d 1050, 1054. Likewise, another court defined "protocol" in this context to mean "a set of medical orders for life-threatening situations that EMTs encounter on a routine basis, as established by the Department of Emergency Medical Services, approved by the parish medical society, and distributed to hospitals and individual EMTs." Falkowski v. Maurus , 637 So.2d 522, 526 (La.App. 1 Cir. 1993).

Although Plaintiff argues that the trial court erred in finding that La.R.S. 40:1133.13 provided Northshore statutory immunity, we see nothing in the judgment or in the hearing transcript whereby the trial court noted which standard of care it used in granting the summary judgment. However, even under an ordinary negligence standard, Plaintiff must prove that Ms. Harper breached the standard of care applicable to paramedics when she transported Mr. Miller to Riverside without first calling LERN. Therefore, we will examine the pleadings, depositions, affidavits, and medical records filed in support of the motion and make a de novo determination as to whether material facts remain and whether Northshore is entitled to summary judgment as a matter of law.

In its memorandum in support of the motion for summary judgment, Northshore explained the services it provides in Washington Parish, Louisiana, and its agreement with LERN, as follows (footnotes omitted):

Washington Parish is the geographical boundary for Northshore. Northshore does not have helicopters to provide air med transport. Each ambulance is staffed with an EMT basic and a paramedic. Northshore provides advanced life support services and nonemergency care.
An EMT basic must pass courses required by the State of Louisiana and the national curriculum. They are able to perform advanced first aid, CPR, oxygen administration, and some basic airway maneuvers. Paramedics are trained to do everything an EMT basic can do, but are also trained to perform endotracheal intubation, and to administer cardiac drugs and pain medications. Northshore's paramedics are trained to assess the patient at the scene, and on the trauma protocols. Northshore paramedics have the discretion to deviate from the protocols if they feel the patient is deteriorating.
....
At the time of the accident involving Mr. Miller, Northshore was a participating pre-hospital provider in the Louisiana Emergency Response Network ("LERN"). The participation agreement between Northshore and LERN states:
When people are in need of time-sensitive medical care and treatment as a result of trauma or other emergencies or disasters, Participating Pre-Hospital Provider (Northshore) and LERN, acting through the LERN Call Center ["LCC"] will use best efforts to facilitate the movement of patients following LERN Entry Criteria and Destination Protocols (the "Protocols"), to the extent these protocols are applicable to a particular situation .... (Emphasis added)
The LERN protocols were drafted and approved by the LERN board, which includes a physician medical director.
Attachment A to the participation agreement is the LERN Entry Criteria which lists the triage protocol of when LERN should be contacted. The LERN Destination Protocol attached to the Agreement provides that when there is a medical emergency involving a patient with an unmanageable pathway, the patient should be transported to the closest emergency department for intervention. The reason for this is because the patient will need rapid sequence intubation and the hospital has this capability. Northshore paramedic, Ashley Harper, was trained by Northshore on the LERN Entry Criteria and Destination protocols.

Ms. Harper's affidavit stated that she obtained a National EMS Certification as a paramedic by the National Registry of Emergency Medical Technicians in 2005. That same year, she became a licensed paramedic in Louisiana and began working for Northshore as a paramedic. Ms. Harper's affidavit stated that she and EMT basic, David "Forrest" Holcomb, arrived on the scene of the accident involving Mr. Miller at 3:39 p.m. on December 28, 2011, and she explained her treatment of Mr. Miller, as follows, in pertinent part:

8.

Mr. Miller's chief complaint was shortness of breath and right-sided back pain. His vital signs were assessed at the scene. His pulse was 133, he had low blood pressure of 100/50, his respiratory rate was elevated at 36, and his SaO2 [oxygen saturation ] was low at 69%. I observed he had an abrasion to his chest." I observed his skin was pale, cold, and clammy. These are signs of shock. My clinical impression was motor vehicle accident, short of breath, and right sided back pain.

9.

At the scene we gave him oxygen, immobilized his spine, and put him on a spine board. We also started an IV of normal saline infusion, performed a blood glucose check, and connected him to the cardiac/EKG monitor. The EKG showed he had sinus tachycardia, which is an elevated heartrate.

10.

We left the scene at 15:51 [3:51 pm]. I was concerned Mr. Miller had life threatening internal injuries compromising his ability to breathe. I made the decision to transport him to Riverside due to his poor vital signs and shortness of breath. Based on my evaluation of him and his vital signs, he needed immediate intervention at an emergency department to prevent an unmanageable airway. He needed intubation to maintain an open airway and to provide oxygen to his lungs. Because he was conscious, intubation could have only been performed at a hospital. I chose to transport him to Riverside because it was the hospital with the closest emergency department where he could be intubated and stabilized.

11.

Based on my observations and treatment of Mr. Miller, he appeared to be in a lot of pain and was highly agitated. His agitation was likely due to his shortness of breath and not remembering what happened. During the trip to Riverside he was constantly moving his arms and trying to remove the IV and oxygen. During the trip I repeatedly tried to calm him down and had to hold his arms down and straight to prevent the IV from corning out and to prevent him from harming himself by removing his IV and oxygen. Due to these circumstances, I did not have time to place a call to LERN.

12.

We arrived at Riverside at approximately 16:00 [4:00 p.m.]. The trip from the accident scene to the hospital was approximately 6.8 miles.

13.

The services, treatment, and procedures provided to Richard Miller by Northshore were at all times consistent with the national EMS education standards and were consistent with my training and education as a paramedic.

The deposition of Chris Hector, the administrative director of LERN, stated that he is a medic who supervises and oversees the LERN communication center. He testified to the procedures used by EMTs when responding to an emergency and stated, in pertinent part:

EMS providers in the field arrive at the scene of an incident and they assess their patient and the accident. They determine if that patient or the mechanism by which the accident occurred meets the criteria as defined in the participation agreement. If the patient does meet one of those criteria, they would contact the communication center and then the communication center would direct them to the closest appropriate facility based on what's relayed in that report, what the patient's needs may be.

When discussing the LERN Entry Criteria and the Pre-Hospital and Hospital Triage Protocol, Mr. Hector testified as follows:

Each box is basically its own category. So you have the top box is [and its] what's considered an unstable patient and goes to the closest appropriate-or the closest hospital: unmanageable airway; tension pneumo[thorax]; traumatic cardiac arrest ; burn patient without patent airway; burn patient with greater than 40 percent body surface area without IV.
....
The top box refers to the closest hospital because these patients are considered unstable and they're going there for immediate emergent stabilization type care.

Mr. Hector repeatedly stated in his deposition that once a medic determines that a patient has an unmanageable airway, then the proper destination protocol is for the medic to go to the closest emergency department in order to stabilize the patient. Mr. Hector also stated in his deposition that the paramedic is not required to make a phone call to LERN when a patient has an unmanageable airway because the paramedic's first concern is treating the patient.

The deposition of David Marcus, the corporate representative for Northshore, stated that he provides training to EMTs, from the first responders to the paramedics. Mr. Marcus testified that starting in 2010, Northshore mandated that all EMTs and paramedics be trained on the LERN protocols and that he has continually updated the information when the policy changed. He testified that a paramedic has the sole discretion in determining where a patient needs to go for treatment. Mr. Marcus testified as follows:

So we base-from what we see on the scene, what the patient tells us, what our signs and symptoms are, based on all the criteria that are built into the protocols-abdominal trauma, head trauma, chest pain, arm pain, whatever that is. That's how we base the course of treatment and how-where this patient needs to go.
....
You follow the guidelines that the protocols are, but we [paramedic's] have that ability or that discretion to deviate from some of the protocols if we feel that the patient is deteriorating ....

When asked whether a paramedic should still call LERN when a patient has an unmanageable airway, Mr. Marcus testified:

If we have time. There are times when we're in the back of that ambulance, we got a critical patient; it's hard to try to save your [patient's] life and be-you know, be on the phone at the same time. Sometimes that's where that little deviation comes in. I'm not saying it's right; I'm not saying it's wrong. But a lot of times, if I'm dealing with a severe bleeder or I'm having to do chest compressions on this person, I don't have time to sit and wait because I'm usually the only one in the back of the truck.
....
Sometimes we do follow up [calls to LERN] afterwards. You know, take them to the closest facility because I know I'm in a bind. I don't have all the tools that I need in the back of the ambulance. I can take them to the closest facility, get the initial stabilization, and then we can activate LERN and say, "Look, I had to do this," and then we go from there.

When asked whether it is proper protocol for a paramedic to request the EMT basic to make that phone call to LERN, Mr. Marcus testified that it is not proper protocol and that "we try not to do it. There are times when we, you know, have tried a partner to call, and it still ends up being a mess." Mr. Marcus further testified that poor cellular service is another reason why a paramedic may not call LERN. As stated by Mr. Marcus, "Sometimes I have been on the phone five to ten minutes trying to give a report .... And a lot of times, it's just continuously repeating what I [the paramedic] just told them."

The deposition of Dr. Cohn stated that she was the emergency room physician at Riverside on the date of Mr. Miller's accident. When asked what type of medical services Mr. Miller needed upon his arrival, she responded:

He [Mr. Miller] needed a trauma service. He needed a blood bank with at least ten units of 0 negative and the ability to type and cross a patient for type-specific and patient-specific blood in less than an hour. He needed the capability for mass transfusion, he need[ed] anesthesia services[.] ...
He was not stable.

When asked whether she contemplated sending Mr. Miller by ground ambulance to another facility, Dr. Cohn testified that "[e]xactly at that time, the dynamics of the patient, how the patient looked, ... I still think that this patient required air ambulance, and, ah, I think that ground ambulance was inappropriate."

Further, when Dr. Cohn was asked the reasons for the forty-five minute delay in having her nurse notify LERN upon Mr. Miller arriving at Riverside, she responded, in pertinent part:

Patient needed to be assessed. His airway was in question. He was intubated. Multiple units of blood were hung. There was an episode where the patient-I put down an NG tube. Then the patient vomited.... The patient had catheters placed in him. Uhm, a primary and secondary survey were-were performed. Orders were written. Patient then became quite agitated. I was holding him down while somebody got medication for him.

In support of its motion for summary judgment, Northshore also included an affidavit of Dr. Joseph Holley, an expert in the field of emergency medical services. After reviewing the Participation Agreement between Northshore and LERN, the LERN Entry Criteria and Destination Protocols, and Northshore's EMS' Protocols Manual, Dr. Holley testified that:

It is my opinion Ashley Harper did not violate the standard of care applicable to paramedics. Her treatment of Mr. Miller was in accordance with the National EMS Education Standards. Since Mr. Miller had an unmanageable airway and needed intubation, as well as aggressive resuscitation interventions, all while attempting to prevent him from further harming himself, it is my opinion [that] Ms. Harper followed the LERN destination protocol and Northshore's Protocol Manual when she transported Mr. Miller to Riverside Medical Center, which was the closest hospital with an emergency department. Under these circumstances, Ms. Harper did not have time to call LERN. This is supported by the fact it took Dr. Cohn and her staff at Riverside 45 minutes to call LERN after receiving Mr. Miller as a patient and attempting to stabilize him.

The evidence attached to Northshore's motion for summary judgment is the only evidence we may consider in our review. After a review of the evidence submitted with Northshore's motion for summary judgment, we find that Northshore established that Mr. Miller had an airway emergency that required Ms. Harper to transport him to Riverside, which was the closest hospital with an emergency department. The evidence established that Ms. Harper followed Northshore and LERN's protocols for when a patient has an unmanageable airway and properly transported him to Riverside. Accordingly, even under an ordinary standard of negligence, we find that Plaintiff failed to prove that Northshore, through its paramedic, breached the standard of care required by paramedics while treating Mr. Miller.

For the reasons set forth herein, we affirm the trial court's grant of summary judgment in favor of defendant, Northshore EMS, LLC. Costs of the appeal are assessed to the plaintiff, Brenna Ash Miller, individually, as the duly appointed guardian of the minor child, Skyler Miller, and the individual authorized to make the claim on behalf of the estate of Richard A. Miller, Jr.

AFFIRMED.


text:
    Judy BARRIE v. CITY OF NEW ORLEANS and Tiffany A. Romano
    NO. 2017-CA-1001
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 23, 2018
   John A. E. Davidson, Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLEE

Eric O. Person, 1539 Jackson Avenue, Suite 100, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins )

Judge Dale N. Atkins Defendant-Appellant, Tiffany A. Romano ("Romano"), challenges the district court's order granting summary judgment in favor of Plaintiff-Appellee, Judy Barrie ("Barrie"), and declaring Barrie the owner of the property located at 122 16th Street in New Orleans. For the reasons that follow, we find that the judgment of the district court should be reversed.

FACTS AND PROCEDURAL HISTORY

This matter concerns ownership of the property located at 122 16th Street in New Orleans ("the property"), which became blighted in the aftermath of Hurricane Katrina. Romano, the record owner, had moved to Dallas, Texas around the time of the hurricane, leaving the property unoccupied. Following administrative hearings, the property was adjudicated a public nuisance due to blight on two occasions, on July 22, 2009 and December 6, 2011. Notices of the hearings and judgments were sent to Romano at 5930 Monticello Avenue in Dallas, Texas.

On December 13, 2011, the property was posted on the City of New Orleans ("City") Blight Status website. In May 2012, Barrie filed an Affidavit of Intent to Possess under La. R.S. 9:5633(2), which provides for three-year acquisitive prescription of blighted properties if various statutory requirements are met. Over the next six months, Barrie attempted to comply with the various filing and posting requirements of La. R.S. 9:5633, took corporeal possession, and on November 5, 2012, Barrie applied to the City for a demolition permit for the property. The City denied the permit based on its practice of not granting demolition permits for non-title owners. On December 6, 2012, Barrie filed a Mandamus Petition against the City and Romano, seeking an order directing the City to issue a demolition permit to Barrie. The petition also included the following language:

Petitioner hereby seek[s] to serve Tiffany A. Romano with notice of these proceedings in order that she might present evidence that the property was not declared blighted by the City of New Orleans on July 22, 2009, and further to assert any opposition she might have to the demolition of said property or the recognition of Judy Barrie as sole owner of the property upon completion of said demolition.

Petition, ¶ VII.

On March 3, 2013, long-arm service of the citation and mandamus petition was sent via certified mail to Romano at the Monticello address, but it was returned unclaimed.

A hearing on the mandamus petition was held on July 26, 2013. The City opposed the mandamus arguing that Barrie had not complied with the requirements of La. R.S. 9:5633, and citing its practice of not issuing demolition permits to non-title owners such as Barrie. During the court's colloquy with counsel, the district judge specifically asked whether demolition was required to ameliorate a public safety issue (to which Barrie's counsel responded in the affirmative), and if Barrie would be willing to indemnify the City for any damages claimed by Romano (also eliciting an affirmative response). On August 7, 2013, the district court entered its judgment directing the issuance of mandamus ordering the City to issue the demolition permit. The district court specifically included language requiring Barrie to indemnify the City for any damage claims brought by Romano. On October 30, 2013, the City issued a demolition permit, and on November 13, 2013, the City issued a certificate of completion for the permitted work.

On December 12, 2013, Barrie filed her First Supplemental and Amending Petition to Quiet Title, Injunction and Appointment of Curator Ad Hoc. A curator was appointed on December 13, 2013. Subsequently, the curator located Romano who retained counsel. Through her attorney, Romano filed an Answer and Reconventional Demand on February 4, 2014. In her pleadings, Romano alleged, inter alia , that she was entitled to damages because Barrie had not complied with the requirements of La. R.S. 9:5633 and unlawfully demolished the improvements to the property. Barrie filed an Answer and Reconventional Demand on March 27, 2014, and on July 7, 2017, Barrie filed an Exception of Res Judicata, arguing that the issues raised in Romano's reconventional demand were barred by the judgment in the first (mandamus) suit. Following a hearing on the res judicata issue, the district court granted summary judgment quieting title and naming Barrie the sole owner, based on its finding that res judicata barred Romano's claims. This timely devolutive appeal followed.

ASSIGNMENTS OF ERROR

Romano asserts that the district court erred in the following particulars: (1) ruling that the issue of ownership and judgment was barred by res judicata, because the August 7, 2013 mandamus judgment was limited to the issue of the demolition permit; (2) ruling that the August 7, 2013 Judgment was res judicata on the issue of whether Barrie had complied with all requirements of La. R.S. 9:5633, when Louisiana R.S. 9:5633 was not mentioned in that judgment; (3) ruling that the allegations that Barrie did not comply with La. R.S. 9:5633 were first raised in 2017, when those claims were raised in Romano's Answer and Reconventional Demand filed on February 4, 2014; and (4) ruling that the appointment of a curator ad hoc was not necessary under La. R.S. 13:3204(B), because Barrie did not prove that notice required by due process was afforded to Romano. We address each individually; because we consider it a threshold issue, we address the due process/notice question first.

DISCUSSION

The Long-Arm Service on Romano Satisfied the Requirements of Due Process

In Romano's fourth assignment of error, she argues that because she did not receive adequate notice of the mandamus suit, the district court erred in failing to appoint a curator ad hoc to represent her interests in the mandamus proceeding. This issue raises a question of law, and thus we review it de novo . Durio v. Horace Mann Ins. Co. , 2011-0084, p. 14 (La. 10/25/11), 74 So.3d 1159, 1168.

At the time Barrie's mandamus action was filed, Romano was a resident of Texas. However, her ownership of real property in Louisiana made her subject to personal jurisdiction here. Thus, under Louisiana's long-arm statute, service by certified mail was authorized. "Service of process so made has the same legal force and validity as personal service on the defendant in this state." La. R.S. 13:3204(C). However,

[n]o preliminary default or final default judgment may be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding ... until thirty days after the filing in the record of the affidavit of the individual who has done any of the following:
(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant.

La. R.S. 13:3205.

Finally, "[i]f service of process cannot be made on the nonresident by registered or certified mail or by actual delivery, the court shall order that service of process be made on an attorney at law appointed to represent the defendant pursuant to Code of Civil Procedure Article 5091." La. R.S. 13:3204(B).

The record reflects that all of the requirements for valid long-arm service were met. The record includes the affidavit of long-arm service required by § 3205, executed by plaintiff's counsel's secretary, personally attesting that she mailed the citation and petition via certified mail to Romano at 5930 Montecello Avenue in Dallas, Texas, as well as a copy of the returned letter marked unclaimed by the U.S. Post Office. Romano has never denied that this was her correct address at all relevant times, and acknowledged in her deposition that it has been her correct mailing address since 2005. Nevertheless, Romano argues that because the certified letter was unclaimed, she never received it and valid service was not effectuated. She further argues that because she was unavailable, a curator ad hoc should have been appointed to represent her interests in the mandamus suit.

Case law is clear that a defendant cannot evade service by refusing to accept properly addressed mail. "It is well established that a party may not defeat service by merely refusing to accept the letter containing the citation." Harold A. Asher, CPA, LLC v. Haik , 2012-0771, p. 9 (La. App. 4 Cir. 4/10/13), 116 So.3d 720, 726-27 (quoting Dean v. Waters , 95-2352, 95-2365, p. 7 (La. App. 4 Cir. 12/14/95), 667 So.2d 1137, 1141 ). When there has been a refusal to claim certified mail containing a citation, courts have found service has nevertheless been properly effectuated when an affidavit prescribed by La. R.S. 13:3205 has been properly executed and filed into the record. Id. (citations omitted). "To allow a defendant to defeat service of process by refusing to claim a certified letter at the post office would make a mockery of R.S. 13:3204 and render it completely ineffective." McFarland v. Dippel , 99-0584, p. 6 (La. App. 1 Cir. 3/31/00), 756 So.2d 618, 621-22 (citations omitted). Accordingly, we find that in this case Louisiana's long-arm service requirements have been satisfied and sufficient service was made on Romano.

As a result, with respect to Romano's contention that the district court was required to appoint an attorney to represent her interests, we disagree. Louisiana Code of Civil Procedure article 5091 provides in pertinent part:

The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has not waived objection to jurisdiction.

La. C.C. P. art. 5091(A).

As discussed above, Romano was in fact served with process. Accordingly, the district court was not required to appoint an attorney to represent Romano, and her assignment of error that she was not afforded adequate due process is without merit.

The mandamus judgment was limited to the issue of the demolition permit.

In her first assignment of error, Romano contends that the district court erred in ruling that the issue of ownership and judgment was barred by res judicata, because the August 7, 2013 mandamus judgment was limited to the issue of the demolition permit, and did not have preclusive effect on the other issues raised in the subsequent litigation. We find this assignment of error has merit.

The res judicata effect of a prior judgment is a question of law that is reviewed de novo . In re Succession of Horrell , 2011-0194, p. 11 (La. App. 4 Cir. 11/30/11), 79 So.3d 1162, 1169. With respect to issue preclusion, our law provides: "A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation." La. C.C.P. art. 425. Our law of res judicata states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La. R.S. 13:4231.

Discussing this provision, the Louisiana Supreme Court has explained that the following five elements "must be satisfied for a finding that a second action is precluded by res judicata: (1) the [original] judgment is valid; (2) the [original] judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation." Chevron U.S.A., Inc. v. State , 2007-2469 (La. 9/8/08), 993 So.2d 187, 194 (quoting Burguieres v. Pollingue , 2002-1385, p. 7 (La. 2/25/03), 843 So.2d 1049, 1053 ). The " 'chief inquiry' ... [is] whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action." Id.

In the present case, the first four elements are present. With respect to the validity of the final judgment, Romano's challenge to the judgment's validity based on her contention that she did not receive notice is unfounded, as set forth above. Second, the original judgment is final. It was entered on August 7, 2013, and was never directly attacked-no appeal, request for new trial, or suit to annul the judgment was ever filed by Romano. Third, there is identity of parties: both suits name Romano and the City as defendants. Fourth, Romano's causes of action in the Reconventional Demand, filed in February 2014, arose at the time Barrie took corporeal possession of the property, in October 2012.

Thus, we must conduct the "chief task" of determining whether the causes of action asserted in this case arose out of the same transaction or occurrence that was the subject matter of the mandamus suit.

In the original mandamus suit, Barrie sued the City and Romano, alleging that the property was blighted and subject to application of La. R.S. 9:5633 and would be demolished. The mandamus petition also advised Romano "to assert any opposition she might have to the demolition of said property or the recognition of Judy Barrie as the sole owner of the property upon completion of the demolition." Following a hearing, the judgment directing issuance of mandamus ordered, inter alia , "that there be judgment in favor of Judy Barrie and against the City of New Orleans and Tiffany A. Romano requiring the issuance of a permit to Judy Barrie for the demolition of the improvements located on [the] property ...." It further ordered "that Judy Barrie indemnify the City of New Orleans from any judgment rendered in favor of Tiffany A. Romano for damages resulting from the issuance of said demolition permit."

Barrie argues that because the district court issued the mandamus directing the City to issue the permit, that ruling necessarily entailed acceptance by the trial court of Barrie's entitlement to proceed under La. R.S. 9:5633. Barrie also claims that the district court rejected the City's argument that Barrie had not adequately complied with the requirements of La. R.S. 9:5633. Put another way, Barrie contends that the only way the court could decide to grant the mandamus directing the City to issue the demolition permit was to also find that Barrie had validly complied with all the requirements of La. R.S. 9:5633. We disagree.

Our close reading of the transcript of the mandamus hearing reflects that the proceeding was limited to the question of the issuance of the demolition permit. The mandamus ordering issuance of the demolition permit was premised on the fact that the property had been adjudicated a public nuisance, and concern that it presented a safety issue. Moreover, apparently crediting the City's argument, supported by the record, that strict compliance with La. R.S. 9:5633 had not occurred, the order was granted specifically contingent upon Barrie indemnifying the City from any judgment in favor of Romano resulting from the issuance of the demolition permit. The inclusion of this provision could only have been necessitated by the district court's belief that Romano did have a potential claim related to the issuance of the demolition permit, which was not litigated or resolved in the mandamus proceeding.

"[A] final judgment has the authority of res judicata only as to those issues presented in the pleading and conclusively adjudicated by the court." Ins. Co. of N. Am. v. Louisiana Power & Light Co., 2008-1315, p. 6 (La. App. 4 Cir. 3/4/09), 10 So.3d 264, 268. As well, the doctrine of res judicata is stricti juris and any doubt concerning its applicability is resolved against its application. Id. at 7, 10 So.3d at 264, citing Kelty v. Brumfield , 93-1142, p. 7 (La. 2/25/94), 633 So.2d 1210, 1215. We find that the clear import of the district judge's colloquy at the mandamus hearing, and the specific language of the judgment, demonstrate that the mandamus proceeding was limited to the appropriateness of the demolition permit, and the issues of statutory compliance or ownership were not conclusively adjudicated by the court.

The mandamus judgment did not address the requirements of Louisiana Revised Statute 9:5633.

In her second assignment of error, Romano argues that the district court erred in ruling that the August 7, 2013 Judgment was res judicata on the issue of whether Barrie had complied with all requirements of La. R.S. 9:5633, when La. R.S. 9:5633 was not mentioned in that judgment. We agree.

As set forth above, the transcript of the mandamus hearing makes clear that it was directed to the issue of whether a demolition permit should be issued. The only other topic addressed was the district court's insistence that Barrie indemnify the City for any subsequent judgment in favor of Romano, a fact which undermines any contention that the district court considered Romano's existing causes of action to be resolved in that proceeding. Moreover, as pointed out by Romano, a review of the judgment reveals that it makes no mention of La. R.S. 9:5633. Accordingly, this assignment of error is well-founded.

Romano's claim that Barrie did not comply with Louisiana Revised Statute 9:5633 was raised in her Reconventional Demand filed February 4, 2014.

In her third assignment of error, Romano asserts that the district court erred in ruling that the allegations that Barrie did not comply with La. R.S. 9:5633 were first raised in 2017, when those claims were raised in Romano's Answer and Reconventional Demand filed on February 4, 2014. We pretermit this assignment of error because our review of the record does not reflect such a ruling by the district court; however, we do note that Romano challenged Barrie's failure to comply with the requirements of La. R.S. 9:5633 in her Reconventional Demand filed February 4, 2014.

Mandamus is not the proper vehicle for a Quiet Title action.

In addition to our finding of the validity of the assignments of error discussed above, we also note that the issues that Barrie seeks to have precluded by the mandamus judgment were not susceptible to resolution in a mandamus proceeding. "A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice ...." La. C.C.P. art. 3862(A). It "may be directed to a public officer to compel the performance of a ministerial duty required by law ...." La. C.C.P. art. 3863.

A review of the petition reflects that the mandamus relief sought was an order directing the City to perform a non-discretionary, ministerial duty required by law-the issuance of the demolition permit based on the public nuisance/blight judgment. In that vein, Barrie argued that while the City had discretion to determine whether a property was blighted, once that determination was made, it had no discretion to deny a demolition permit. However, with respect to Romano, the mandamus petition sought "to serve [her] with notice of these proceedings in order that she might present evidence that the property was not declared blighted by the City of New Orleans on July 22, 2009, and further to assert any opposition she might have to the demolition of said property or the recognition of Judy Barrie as sole owner of the property upon completion of said demolition." Essentially, this directive contained within the mandamus petition seeks a declaratory judgment, or judgment quieting title, and appears to be an attempt to roll a quiet title action against Romano into the mandamus action directed to the City.

A quiet title action recognizing Barrie as sole owner is akin to a declaratory judgment, which must be brought in an ordinary proceeding. See La. C.C. P. art 851. It is not the proper subject of a mandamus petition. A suit for mandamus, which may be brought by summary proceeding, cannot be cumulated with a suit for declaratory judgment, which must be brought by ordinary proceeding. Citizens Organized for Sensible Taxation (C.O.S.T.) v. St. Landry Parish School Bd. , 528 So.2d 1048, 1053 (La. App. 3rd Cir. 1988). Thus, in addition to finding that the mandamus judgment was limited by its terms to the appropriateness of the demolition permit, we note that the other issues Barrie contends were subsumed in that judgment were not amenable to adjudication in a mandamus proceeding. Accordingly, the mandamus judgment does not have any preclusive effect on the causes of action raised in Romano's reconventional demand.

For the foregoing reasons, we find that the district court erred in sustaining Barrie's exception of res judicata and granting summary judgment. Accordingly, this matter is reversed and remanded.

REVERSED AND REMANDED

      The record reflects that the 2009 judgment was rescinded in October 2009. However, the cancellation of this judgment was not filed of record until December 5, 2013.

      A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      ...
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      La. R.S. 13:3201(A).

      "In a suit under R.S. 13:3201, a certified copy of the citation .... shall be sent by counsel for the plaintiff ... to the defendant by registered or certified mail ... when the person to be served is located outside of this state ...." La. R.S. 13:3204(A).

      Romano's street in Dallas is spelled Monticello in some places in the record and Montecello in others. There is no assertion anywhere in the record that a misspelling of the street name resulted in difficulty in delivering Romano's mail.

      In addition, we note that at the mandamus hearing, counsel specifically argued the validity of the service which was accepted by the trial court.

      For instance, the statute requires that within one week of Barrie's Affidavit of Intent to Possess being filed, she was required to send it with the certificate of proof via certified mail to Romano. La. R.S. 9:5633(A)(3). The record reflects that the affidavit was filed May 22, 2012, and not mailed until July 23, 2012. An Amended Affidavit of Intent was filed on July 31, 2012, which recites it is an amendment to the affidavit filed on June 22, 2012, a month later than the original affidavit was actually filed. Presumably, this is a typographical error. The record does not appear to include a transmittal letter, return receipt, or unclaimed receipt for a mailing of the amended affidavit to Romano.