author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Marcus HARRIS
    NO. 2018-KK-1104
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    Sonya THERIOT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    NO. 2018-C-1106
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    NO. 2018-C-1215
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   GENOVESE, J., recused.


text:
    Brandi BILLEAUDEAU, et al. v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al.
    NO. 2018-C-1222
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   GENOVESE, J., recused.


text:
    LEXINGTON NATIONAL INSURANCE COMPANY v. STATE of Louisiana
    NO. 2018-CC-1094
    Supreme Court of Louisiana.
    October 15, 2018
    Not considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    Peter HOFFMAN as Successor to Pool Boy the Movie, LLC v. John W. THERIOT, CPA and Malcolm M. Dienes, LLC
    Peter Hoffman, as Successor to Autopsy, LLC v. John W. Theriot, CPA and Malcolm M. Dienes, LLC
    NO. 2018-C-1117
    Supreme Court of Louisiana.
    October 15, 2018
    Not considered; not timely filed. See La.S.Ct.R. X, § 5.


text:
    STATE of Louisiana v. Steven LAWRENCE
    NO. 2018-KK-1279
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Ashley Dominic LAWRENCE v. Patricher SCHEXNAYDER and Government Employees Insurance Company
    NO. 2018-CC-1291
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Courtney S. TURNER v. EAST BATON ROUGE PARISH SCHOOL BOARD and Warren Drake Individually and in his Official Capacity as Superintendent of Schools for the East Baton Rouge Parish School Board
    NO. 2018-C-1127
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Ronald HERNDON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2017-CI-1185
    Supreme Court of Louisiana.
    October 15, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Willie DILLON v. STATE of Louisiana
    NO. 2017-KH-1192
    Supreme Court of Louisiana.
    October 15, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Errol VICTOR, Sr.
    NO. 2016-KO-1516
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE EX REL. EVANGELISTO RAMOS v. STATE of Louisiana
    NO. 2017-KH-1177
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Torsor TOUSSAINT v. BATON ROUGE GENERAL MEDICAL CENTER and XYZ Insurance Company
    NO. 2018-C-1107
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Robin TOLER v. CABLE LOCK FOUNDATION REPAIR a/k/a Olshan Foundation Repair
    Roger D. Anderson, Terri T. Anderson, and Theresa Leuschner v. Laborde Construction Industries, LLC, Catamount Constructors, Inc., LMK Baton Rouge Construction, LLC and The Standard of Baton Rouge, LLC
    NO. 2018-CC-1111
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Catherine ALFORD v. CB CONSTRUCTION & DEVELOPMENT, LLC
    NO. 2018-CC-1133
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Lori BILLON v. GOLDEN NUGGET LAKE CHARLES, LLC, et al.
    NO. 2018-CC-1059
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Raymond GREEN aka Raymond O'Neal Green
    NO. 2018-KH-1049
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator fails to show a particularized need for the requested documents. State ex rel. Bernard v. Cr.D.C., 94-2247 (La. 4/28/95), 653 So.2d 1174.
   GENOVESE, J., recused.


text:
    Marilyn LINCOLN and Donald Lincoln, Jr. v. ACADIAN PLUMBING & DRAIN, LLC, et al.
    NO. 2018-C-1074
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    ST. CHARLES SURGICAL HOSPITAL, LLC and Center for Restorative Breast Surgery, LLC v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY d/b/a Blue Cross and Blue Shield of Louisiana, Blue Cross & Blue Shield of Louisiana, Inc., and HMO Louisiana, Inc.
    NO. 2018-CC-1136
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    SUCCESSION OF James McRae GRIFFIN
    NO. 2018-C-1081
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Donna MOUTON v. Bradley CHASTANT, M.D., et al.
    NO. 2018-CC-1085
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE of Louisiana v. Tyler VENABLE
    NO. 2018-KK-1112
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Phillip DUSSETT
    NO. 2018-KH-0155
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Dussett v. State, 15-1332 (La. 6/17/15), 194 So.3d 599.


author: WEIMER, J., would grant.

text:
    Cynthia Hill DUPONT, Bridgette C. Marcotte & John Hill v. The STATE of Louisiana, Department of Administration, Office of State Lands, through the Office of the Attorney General
    NO. 2018-C-1088
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   WEIMER, J., would grant.


text:
    SUCCESSION OF Eugene D. LANIER
    NO. 2018-C-1091
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Alex TALBERT v. RESTORATION HARDWARE, INC., Ozark Motor Lines, Inc.
    NO. 2018-C-1102
    Supreme Court of Louisiana.
    October 15, 2018
    Denied on the showing made.


text:
    Martha HINCHCLIFFE v. Edna Binabon SIAOTONG, Shelter General Insurance Company, and Progressive
    NO. 2018-C-1113
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Dolph FINLEY
    NO. 2018-KH-1299
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Finley v. State, 17-0588 (La. 4/24/17), 217 So.3d 350.


text:
    STATE of Louisiana v. Terry Wayne MAYS
    NO. 2018-KH-1320
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Mays v. State, 17-0323 (La. 4/6/18), 239 So.3d 281.


text:
    STATE EX REL. Lester J. CELESTINE v. STATE of Louisiana
    NO. 2017-KH-1179
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE EX REL. Earl BRADLEY v. STATE of Louisiana
    NO. 2017-KH-1187
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Judy BARRIE v. CITY OF NEW ORLEANS and Tiffany A. Romano
    NO. 2018-C-1041
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE EX REL. Cevero GARCIA v. STATE of Louisiana
    No. 2016-KH-1716
    Supreme Court of Louisiana.
    October 15, 2018
    Writ not considered. See La.S.Ct.R. IX § 6.


text:
    STATE EX REL. Thaddeus A. WILLIAMSON v. STATE of Louisiana
    No. 2017-KH-1957
    Supreme Court of Louisiana.
    October 15, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Richard Nathaniel MILLER
    NO. 2018-KH-0504
    Supreme Court of Louisiana.
    October 15, 2018
    Reconsideration denied.


text:
    FLORIDA GAS TRANSMISSION COMPANY, LLC v. TEXAS BRINE COMPANY, LLC
    NO. 2018-CC-1373
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Terry Matthew PITTMAN
    NO. 2018-KO-0701
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   CRICHTON, J., recused.


text:
    Jason JARREAU v. Sid J. GAUTREAUX, III, in his capacity as Sheriff of East Baton Rouge Parish
    NO. 2018-C-1125
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Virgil SMITH
    NO. 2018-KH-0524
    Supreme Court of Louisiana.
    October 15, 2018
    Reconsideration denied.


text:
    STATE of Louisiana v. Edward James MCKINNEY
    NO. 2018-KH-0481
    Supreme Court of Louisiana.
    October 15, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State v. McKinney, 17-1181 (La. 10/15/18), --- So.3d ----.
   CRICHTON, J., recused.


text:
    Landon WILLARD v. Matthew ANDERS, et al.
    NO. 2018-CC-1116
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    ST. CHARLES SURGICAL HOSPITAL, LLC and Center for Restorative Breast Surgery, LLC v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY d/b/a/ Blue Cross and Blue Shield of Louisiana, Blue Cross & Blue Shield of Louisiana, Inc., and HMO Louisiana, Inc.
    NO. 2018-CC-1118
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    Ely BOUCHER v. Sid J. GAUTREAUX, III, in his Capacity as Sheriff of East Baton Rouge Parish
    NO. 2018-C-1126
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Sean J. BREAUX
    NO. 2017-KO-1967
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE of Louisiana v. Brandon LAVERGNE
    NO. 2018-KH-0561
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Tanya BUTEAUX
    NO. 2018-K-0600
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    TAB-N-ACTION, INC., dba Excellence Academy v. MONROE CITY SCHOOL BOARD
    NO. 2018-C-1056
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


text:
    STATE EX REL. Eddie Ray JACKSON v. STATE of Louisiana
    NO. 2017-KH-1208
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.


author: GUIDRY, J., would grant.

text:
    STATE of Louisiana v. Michele Lynn KING
    NO. 2018-KK-1080
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   GUIDRY, J., would grant.


text:
    J. BOONE DEVELOPMENT, LLC v. MILTON WATER SYSTEM, INC., et al.
    NO. 2018-C-1100
    Supreme Court of Louisiana.
    October 15, 2018
    Denied.
   HUGHES, J., would grant.


author: CHEHARDY, C.J.

text:
    IN RE: K.S.S. APPLYING FOR INTRAFAMILY ADOPTION
    NO. 18-CA-103
    Court of Appeal of Louisiana, Fifth Circuit.
    August 21, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, L.S.M. AND J.N.M.: Bennett Wolff, Betsy A. Fischer, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, A.L.S., JR.: Lauren E. Checki, David C. Spinner, New Orleans
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore.
   CHEHARDY, C.J.

A.L.S., Jr., the biological father of the minor child, K.S.S., appeals the trial court's judgment terminating his parental rights and allowing the final adoption of the minor child by her stepfather, J.N.M. For the following reasons, we reverse and remand with instructions.

Factual and Procedural History

K.S.S., who is the subject of this intrafamily adoption, was born on June 25, 2009 in Roseville, California. On September 10, 2010, K.S.S.'s parents, who were domiciled in California, divorced. That day, although K.S.S.'s parents were granted joint legal custody, L.S.S.M., the child's mother, was given "90 percent [physical] custody" and her father, A.L.S., Jr., was granted "10 percent."

A.L.S., Jr. remarried in 2013. Almost immediately, L.S.S.M. moved away from California with K.S.S. and, after a few months, ended up in Louisiana. In 2015, L.S.S.M. remarried J.N.M.; the couple is domiciled in Louisiana.

On March 22, 2017, J.N.M. and L.S.S.M. filed a petition for intrafamily adoption of K.S.S. in the Twenty-Ninth Judicial District Court for the Parish of St. Charles, Louisiana. In response, A.L.S., Jr. filed, inter alia , an answer and opposition to the intrafamily adoption on October 18, 2017. On October 23, 2017, the trial court heard testimony from the child's mother, stepfather, father, and stepmother. After taking the matter under advisement, the trial court terminated A.L.S., Jr.'s parental rights and determined that the adoption was in the best interest of K.S.S. On November 17, 2017, the trial judge rendered a final decree of adoption naming K.S.S. as J.N.M.'s child. From this judgment, A.L.S., Jr. now appeals.

Standard of Review

An intrafamily adoption is the adoption of a child by a stepparent or certain other relatives of the child. See La. Ch.C. arts. 1170, 1243. The party petitioning the court for adoption carries the burden of proving a biological parent's consent is not required under the law.

In re B.L.M. , 13-0448 (La. App. 1 Cir. 11/1/13), 136 So.3d 5, 9. The burden of proof for the person seeking to adopt under such circumstances is clear and convincing evidence. In re Bourgeois , 04-1466 (La. App. 5 Cir. 4/26/05), 902 So.2d 1104, 1108, writ denied , 05-1197 (La. 6/3/05), 903 So.2d 470. However, even upon finding that a parent has lost his right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interest of the child. In re Intra Family Adoption of A.G.T. , 06-805 (La. App. 5 Cir. 3/13/07), 956 So.2d 641, 648, writ denied , 07-0783 (La. 5/4/07), 956 So.2d 611.

The trial court is vested with great discretion in determining whether an adoption is in the best interest of the child and each case must be decided on its own facts. The trial court's discretion is not absolute, however, and a determination of the child's best interest is subject to reversal if the record reveals manifest error in the determination. In re B.E.M. , 07-94 (La. App. 5 Cir. 5/29/07), 961 So.2d 498, 501.

Law and Discussion

In his first assignment of error, A.L.S., Jr. contends that the trial court erred by failing to appoint an attorney to represent the child as mandated by La. Ch.C. art. 1244.1. We agree.

La. Ch.C. art. 1244.1(B) provides,

Upon receipt of the opposition, the court shall appoint an attorney to represent the child, subject to the limitations in Article 1121. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the representation of the child shall be taxed as costs of court.

The language of the statute is mandatory and is not subject to waiver. Further, adoption is a creature of statute and all of the statutory requirements must be strictly carried out. In re T.M.L. , 06-1442 (La. App. 1 Cir. 12/28/06), 951 So.2d 364, 366. "Throughout the Children's Code, independent counsel is typically required for the child in disputed cases." Id.

In a termination of parental rights proceeding like this that will profoundly affect the minor's life, La. Ch.C. art. 1244.1(B) ensures that there is independent representation of the child's interest, free from potential conflicts. We are unpersuaded by appellees' - J.N.M. and L.S.S.M. - argument that appointment of independent counsel was not required because A.L.S., Jr.'s opposition was untimely. First, the trial court's duty to appoint counsel for the minor child is triggered by "receipt of the opposition." The statutory language does not specify a "timely opposition" and, thus, does not contain a temporal element. We will not read one into the statute.

More importantly, a child's individual best interests warrant protection by independent legal representation. A child's fundamental right to independent counsel cannot be waived, see La. Ch.C. art. 1244.1(B), much less thwarted by any procedural technicality.

In this case, we find that the trial court abused its discretion in failing to appoint independent counsel to represent K.S.S. at all times after the opposition was filed. This fundamental defect necessitates that we reverse the judgment at issue and remand this matter to the trial court for the appointment of independent counsel for K.S.S. for a new trial. See Fox v. Fox , 97-1914 (La. App. 1 Cir. 11/6/98), 727 So.2d 514, 517, writ denied , 99-0265 (La. 3/19/99), 740 So.2d 119.

Conclusion

For the foregoing reasons, the trial court's judgment terminating A.L.S., Jr.'s parental rights and ordering the intrafamily adoption of K.S.S. by J.N.M. is reversed and remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      The initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding. In re J.A. , 99-2905 n.1 (La. 01/12/00), 752 So.2d 806, 807.

      On July 24, 2017, A.L.S., Jr. filed exceptions of prematurity, failure to join a necessary party, and lack of subject matter jurisdiction, which required numerous hearings. On September 22, 2017, A.L.S., Jr. moved to dismiss his exceptions, which was granted on September 28, 2017.

      Because we find the fundamental defect of failure to appoint counsel requires reversal and remand, we pretermit discussion of all remaining assignments of error raised by A.L.S., Jr.

      La. Ch.C. art. 1244.1 provides:
      A. A parent, whose rights have not been terminated in accordance with Title X or XI or who has not previously consented to the adoption in accordance with Article 1244, may oppose the adoption of his child by filing a clear and written answer and opposition to the adoption. The answer and opposition shall be filed with the court within fifteen days from the time of service of the filing of an intrafamily adoption petition.
      B. Upon receipt of the opposition, the court shall appoint an attorney to represent the child, subject to the limitations in Article 1121. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the representation of the child shall be taxed as costs of court.
      C. When the opposition provides that the parent cannot afford to hire an attorney, the court shall determine whether due process requires the appointment of counsel within twenty-one days of the filing of the opposition.
      D. Notice shall be served in accordance with Articles 1133 and 1134 on the opposing parent, the legal custodian, the petitioner, counsel appointed for the child, counsel appointed for the parent, and the other parent not consenting to the adoption pursuant to Article 1144 or whose rights have not previously been terminated.

      La. Ch.C. art.1121 provides:
      A. In all surrenders for private adoption, the surrendering parent and his representative, if applicable, or the child's tutor, as provided in Article 1108, shall be represented at the execution of the act by an attorney at law licensed to practice law in Louisiana; however, the attorney representing such person shall not be the attorney who represents the person who is the prospective adoptive parent, or an attorney who is an associate, partner, shareholder, or employee of the attorney, law firm, or corporation representing the prospective adoptive parent.
      B. Counsel for the surrendering parent shall execute an affidavit of counsel, which shall be attached to the act of surrender.
      C. The affidavit of counsel shall recite that counsel for the surrendering parent has fully explained to the parent the nature and effect of the act of surrender, including the penalties for making false statements in the act of surrender provided in R.S. 14:125.2, and that the parent appeared to understand the explanation given, that the parent freely and voluntarily executed the surrender, and that a copy of the act as executed has been provided to the surrendering parent.

      "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. 9 ; La. R.S. 1:3 and 1:4 ; Mayeux v. Charlet , 16-1463 (La. 10/28/16), 203 So.3d 1030, 1036.


text:
    STATE of Louisiana v. Rashon K. SMITH
    NO. 18-KA-142
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
    Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA
    Lieu T. Vo Clark, COUNSEL FOR DEFENDANT/APPELLANT, RASHON K. SMITH
    In Proper Person, DEFENDANT/APPELLANT, RASHON K. SMITH
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
   CHEHARDY, C.J.

Defendant, Rahson K. Smith, appeals his convictions of and sentences for attempted possession of a firearm by a convicted felon and illegal possession of stolen things. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she has thoroughly reviewed the district court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After a thorough review of the record, defendant's convictions are affirmed, defendant's sentence on count two is affirmed, defendant's sentence on count one is vacated, the matter is remanded for resentencing, and counsel's motion to withdraw as counsel of record is granted.

PROCEDURAL HISTORY

On April 17, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rashon K. Smith, with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count one), and one count of illegal possession of stolen things valued at over $1,500, a violation of La. R.S. 14:69 (count two). Defendant was arraigned on April 21, 2014, and pled not guilty to the charges.

On July 28, 2014, defendant filed a motion to appoint a sanity commission to determine competency, which the district court granted on July 29, 2014. A sanity commission was appointed, and after evaluation, defendant was found competent to proceed to trial. On July 8, 2015, defendant filed a motion to suppress evidence, which was never ruled upon by the district court.

On December 14, 2015, count one was amended to charge defendant with attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:27 and La. R.S. 14:95.1. Immediately following this amendment, defendant withdrew his pleas of not guilty, and after being advised of his Boykin rights, pled guilty to counts one and two of the amended bill of information. In accordance with the plea agreement, defendant was then sentenced on each count to concurrent eight-year sentences of imprisonment with the Department of Corrections.

On December 21, 2017, defendant filed a Uniform Application for Post-Conviction Relief signed and dated December 13, 2017. Construing this as a motion for an out-of-time appeal, the district court granted defendant an appeal on January 3, 2018. Defendant's appointed appellate counsel thereafter filed an appellate brief pursuant to Anders , supra and a motion to withdraw as counsel of record.

FACTS

Because defendant's convictions were the result of guilty pleas, the underlying facts of his convictions are not fully developed in the record. However the amended bill of information alleged, with respect to count one, that on or about January 9, 2014 in Jefferson Parish, defendant violated La. R.S. 14:27 and La. R.S. 14:95.1, in that he did attempt to possess a firearm, "having been previously convicted of the crime of unauthorized entry of an inhabited dwelling, in violation of 14:62.3, under case number 10-4897, Division 'K' in the 24th Judicial District Court." With respect to count two, the amended bill of information alleged that on January 9, 2014, defendant violated La. R.S. 14:69 in that he did "intentionally possess, procure, receive, or conceal [a] 2012 Ducati Motorcycle, belonging to Joseph Dalton valued at over $1,500.00, which has been the subject of a robbery or theft, under circumstances which indicate that the defendant knew or had good reason to believe was the subject of one of these offenses."

ANDERS BRIEF

Under the procedure adopted by this Court in Bradford , supra , appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the district court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders , supra and Jyles , supra , appointed counsel requests permission to withdraw as counsel of record.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , supra , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , supra at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

DISCUSSION

Defendant's appellate counsel asserts in her brief that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel asserts that defendant pled guilty pursuant to a plea agreement, which was properly accepted by the district court after defendant was fully informed of his constitutional rights to a jury trial, to confront witnesses, and against self-incrimination. Counsel indicates that defendant understood he was waiving these rights by pleading guilty. Counsel also states that defendant was informed of the sentencing ranges for the offenses, the sentences that were to be imposed, and that the district court imposed the agreed upon sentences pursuant to the plea agreement, precluding defendant from challenging his sentences on appeal.

Appellate counsel further indicates that defendant has been notified regarding the filing of counsel's motion to withdraw, as well as his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail on April 18, 2018 informing him that an Anders brief had been filed and that he had until May 17, 2018, to file a pro se supplemental brief. Defendant filed a pro se supplemental brief, in which he raised two assignments of error that we address herein.

Likewise, in its brief, the State recounts the pertinent procedural history of this case and agrees with appellate counsel that there are no non-frivolous issues for appellate review. The State maintains that, as shown by the record, defendant voluntarily and intelligently entered pleas of guilty and that there are no non-frivolous issues to raise on appeal. The State asserts that the district court conducted a Boykin colloquy with defendant and explained to him the rights he was waiving by pleading guilty. The State further notes that defendant did not reserve any rights to appeal pre-trial rulings of the district court prior to pleading guilty, and as such, any claims relating to such rulings have been waived.

The State also responds that appellate counsel's brief shows a conscientious and thorough review of the procedural history of the case with references to the record for the convenience of this Court. The State notes that appellate counsel has "cast an advocate's eye" over the record and determined there were no non-frivolous issues to raise on appeal. As such, it maintains that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles , and should be granted permission to withdraw.

We now conduct our independent review of the record to determine whether there any non-frivolous issues to be raised on appeal.

The amended bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P. arts. 464 - 466. Also, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, and his sentencing. Defendant's presence does not support any claims on appeal.

Defendant pled guilty to attempted possession of a firearm by a convicted felon, in violation of La. R.S. 14:27 and La. R.S. 14:95.1, and to possession of stolen things valued at over $1,500.00, in violation of La. R.S. 14:69. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects have been waived and no rulings were preserved for appeal under State v. Crosby , 338 So.2d 584 (La. 1976).

The record also reflects that defendant filed a motion to suppress, which was not ruled upon prior to defendant's guilty pleas. When a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Here, defendant did not object to the district court's failure to hear or rule on his pre-trial motion prior to his guilty pleas, and the motion is therefore considered waived.

Additionally, our review of the record reveals no irregularities in defendant's guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

The record shows defendant was aware he was pleading guilty to one count of attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:27 and La. R.S. 14:95.1, and one count of possession of stolen things valued at over $1,500.00, a violation of La. R.S. 14:69. Defendant was properly advised of his Boykin rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant made an affirmative notation next to each of these rights and placed his signature at the end of the form, indicating that he understood he was waiving these rights by pleading guilty. Defendant also verbally indicated that he understood he was waiving these rights during the colloquy with the court. Defendant further indicated, both during his guilty plea colloquy and in his waiver of rights form, that he had not been forced, coerced, or threatened into entering his guilty pleas.

Defendant was also informed of the sentencing ranges of the offenses and the actual sentences that would be imposed upon acceptance of his guilty pleas. And he was advised that his guilty pleas could be used to enhance a penalty for any future convictions. At the conclusion of the colloquy, the court accepted defendant's pleas as knowingly, intelligently, freely, and voluntarily made.

Defendant's sentences were imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied , 09-2046 (La. 8/18/10), 42 So.3d 394. In the instant case, defendant's eight-year sentence on count two falls within the sentencing range set forth in the statute;

however, defendant's eight-year sentence on count one does not. At the time defendant committed the offense in 2014, La. R.S. 14:95.1(B) mandated a sentence of imprisonment at hard labor for not more than seven and one-half years. Defendant's sentence of eight years is therefore illegal.

Pursuant to La. C.Cr.P. art. 882, an appellate court may correct an illegal sentence at any time, when the exercise of sentencing discretion is not involved. State v. Mason , 10-284 (La. App. 5 Cir. 1/11/11), 59 So.3d 419, 430, writ denied , 11-306 (La. 6/24/11), 64 So.3d 216. At the time of the offense, La. R.S. 14:95.1(B) mandated a sentence of imprisonment at hard labor "for not more than seven and one-half years and [a fine of] not less than five hundred dollars nor more than two thousand five hundred dollars." In light of the discretion permitted by this statute, we vacate defendant's sentence on count one and remand the matter to the district court for resentencing. See La. C.Cr.P. art. 881.4(A) ; see also State v. Brown , 17-346 (La. App. 5 Cir. 12/13/17), 234 So.3d 1134, 1137-38 ; State v. McClure , 14-253 (La. App. 5 Cir. 3/11/15), 169 So.3d 510, 534, writ denied , 15-684 (La. 2/26/16), 187 So.3d 468.

Although appellate counsel's brief adequately demonstrates a full discussion and analysis of the district court proceedings, our independent review of the record refutes counsel's assertion that there are no non-frivolous issues supporting an appeal. Typically, if an appellate court, after an independent Anders review, finds any issue arguable on the merits, it may either deny counsel's motion to withdraw and order counsel to file a brief arguing the issues identified by the court, or grant the motion and appoint substitute appellate counsel. See Bradford , supra . Here, however, in light of our decision to vacate defendant's sentence on count one and remand the matter for resentencing, we find briefing is not warranted. Accordingly, appellate counsel's motion to withdraw is granted.

PRO SE SUPPLEMENTAL BRIEF

In defendant's pro se supplemental brief, he raises two assignments of error: (1) excessive sentence and (2) ineffective assistance of counsel.

In his first pro se assignment of error, defendant argues that his sentence of eight years on the multiple bill is unconstitutionally excessive. The record does not reflect that defendant was adjudicated or sentenced as a multiple felony offender in this case. Additionally, his assignment of error does not clarify which of his two eight-year sentences he challenges as excessive. Under these circumstances, and particularly in light of our determination, pursuant to our Anders review, that defendant's sentence on count one is illegally excessive and requires remand, we pretermit consideration of defendant's first pro se assignment of error.

In defendant's second pro se assignment of error, he argues that his trial counsel was ineffective for failing to file a motion to reconsider sentence, failing to consult with defendant prior to the entering of his guilty plea, and failing to investigate the allegations against him.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Stiller , 16-659 (La. App. 5 Cir. 7/26/17), 225 So.3d 1154, 1157. But when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. If, on the other hand, the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings. Id.

Here, the record is insufficient to fully consider defendant's ineffective assistance of counsel claims. Based on the limited record here, defendant's allegations of ineffective assistance of counsel are better suited to be raised in an application for post-conviction relief in the district court, where, if necessary, a full evidentiary hearing can be conducted and defendant can present evidence to support his allegations. Accordingly, we decline to consider the merits of defendant's second pro se assignment of error.

ERRORS PATENT

The record has been reviewed for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). Other than the sentencing error noted above pursuant to our Anders review, we conclude there are no errors patent requiring corrective action.

DECREE

For the foregoing reasons, defendant's convictions are affirmed; defendant's sentence on count two is affirmed; defendant's sentence on count one is vacated and the matter is remanded for resentencing. Appellate counsel's motion to withdraw as counsel of record is granted.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED; SENTENCE ON COUNT ONE VACATED; REMANDED FOR RESENTENCING; MOTION TO WITHDRAW GRANTED.

      In addition to counts one and two, the bill of information contains a count four (there is no count three) charging the crime of unauthorized entry of the Jefferson Parish Detective Bureau, a violation of La. R.S. 14:62.4. However, while counts one and two specifically name defendant, count four does not provide the name of any defendant, but rather contains a blank space where a name ought to be. Moreover, in the information section at the bottom of the bill, only counts one and two are referenced. And there was no mention of count four during defendant's guilty plea proceeding. Accordingly, as defendant has not been named in count four, and has only pled guilty to the offenses charged in counts one and two, we conclude that defendant was not charged with a violation of La. R.S. 14:62.4 despite it being contained in the bill of information.

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      Appellate counsel's motion to withdraw is granted despite the remand for resentencing because defendant is represented by different counsel in the district court, the Indigent Defender Board, than on appeal, the Louisiana Appellate Project. Thus, the district court shall appoint trial counsel to represent defendant at his resentencing on remand. See State v. Hudson , 17-621 (La. App. 5 Cir. 5/23/18), 249 So.3d 251, 258, 2018 WL 2328074, at *9 n.6 (citing State v. Anderson , 16-537 (La. App. 5 Cir. 5/17/17), 222 So.3d 935, 948 n.6 ).


author: SAUNDERS, Judge.

text:
    James E. GUFFEY, et al. v. LEXINGTON HOUSE, LLC
    18-475
    Court of Appeal of Louisiana, Third Circuit.
    August 22, 2018
    Eric J. Miller, Bolen, Parker, Brenner, Lee & Engelsman, LTD., P.O. Box 11590, Alexandria, LA 71315-1590, (318) 445-8236, COUNSEL FOR DEFENDANT/APPLICANT: Lexington House, LLC
    Brent P. Frederick, Michael T. Beckers, Danielle N. Goren, Frederick & Beckers, LLC, 112 Founders Drive, Suite 101, Baton Rouge, LA 70810, (225) 372-6000, COUNSEL FOR PLAINTIFF/RESPONDENT: George Guffey, James E. Guffey, James E. Guffey, o/b/o Geneva Guffey
    Court composed of Ulysses G. Thibodeaux, Chief Judge, John D. Saunders, Phyllis M. Keaty, Judges.
   SAUNDERS, Judge.

Relator, Lexington House, LLC, seeks supervisory writs from the denial of its exception of prescription by the Ninth Judicial District Court, Parish of Rapides, the Honorable Patricia Koch, presiding.

STATEMENT OF THE CASE

Geneva Guffey (Geneva) was a resident at Lexington House, a nursing home. In January of 2016, Geneva was 91 years old and had pneumonia, respiratory distress, chronic heart failure, dementia, chronic obstructive pulmonary disease, peripheral vascular disease, and varicose veins. On January 19, 2016, a Lexington House employee dropped Geneva while transferring Geneva from a bath chair to her bed. Geneva's right leg was badly cut. Geneva died on May 16, 2016, allegedly because the injuries she received caused an insurmountable decline in her overall condition.

On November 2, 2016, Deana Fredrick (Deana) requested the formation of a medical review panel. Deana is Geneva's granddaughter. On May 19, 2017, Deana attempted to "supplement" the request for a medical review panel to include James Guffey (James) as a claimant and stated that she was the representative of Geneva's estate. On May 22, 2017, Lexington House filed an exception of no right of action grounded on the assertion that Deana was not a proper party claimant because as Geneva's granddaughter, she is not included in the list of beneficiaries who have the right to file a survival action under La.Civ.Code art. 2315.1 or a wrongful death action under La.Civ.Code art. 2315.2. The trial court denied the exception and agreed with the Plaintiffs' argument that the definition of "claimant" in La.R.S. 40:1231.1(A)(4) is not limited to those who will ultimately be allowed to assert a survival or wrongful death claim when the panel proceedings are concluded. See Truxillo v. Thomas , 16-168 (La.App. 4 Cir. 8/31/16), 200 So.3d 972. This court denied Lexington House's writ application, finding no error in the trial court's ruling. In re Medical Review Panel Proceedings, Geneva Guffey v. L exington House, LLC , 17-829 (La.App. 3 Cir. 2/2/18), an unpublished writ decision.

The medical review panel issued an opinion on November 15, 2017, finding that Lexington House breached the standard of care with respect to the transfer. Two of Geneva's children, James and George, filed suit individually and on behalf of Geneva in the district court on January 26, 2018. On February 13, 2018, Lexington House filed exceptions of vagueness and prescription. Those exceptions were heard on April 16, 2018. Plaintiffs stipulated to the removal of the allegations that were subject to the exception of vagueness (i.e., those that pled "other acts of negligence" and "any and all other damages"), and those were ordered stricken from the petition. The exception of prescription was denied, based on the reasoning in Truxillo , 200 So.3d 972, and on the finding that it had already been determined that Deana had a right of action. A written judgment was signed on April 26, 2018.

Lexington House timely filed a notice of intent to seek supervisory writs, and a return date of June 15, 2018, was set. This writ application was timely filed. Plaintiffs filed their opposition on June 26, 2018.

No trial date has been set, and there are no other scheduled hearings.

SUPERVISORY RELIEF

"A judgment denying an exception of prescription is an interlocutory judgment." Eastern Solutions, Inc. v. Al-Fouzan , 12-464, p. 3 (La.App. 3 Cir. 11/7/12), 103 So.3d 1190, 1192, writ denied , 12-2623 (La. 1/25/13), 105 So.3d 721, citing La.Code Civ.P. arts. 927 and 1841. "The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.

ON THE MERITS

The exception of prescription is governed by La.Code Civ.P. art. 927.... If evidence was adduced, the standard of review is manifest error[.] ... The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in which case the plaintiff must prove that it is not.

Arton v. Tedesco , 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied , 15-1065 (La. 9/11/15), 176 So.3d 1043 (citations omitted).

Plaintiffs offered, filed, and introduced the following documents:

A. Durable Power of Attorney, dated March 17, 2014, in favor of Deana Frederick from Geneva Guffey.
B. Attorney-Client Contract, signed January 26, 2016, between Geneva and Frederick & Beckers, LLC.
C. Request for Medical Review Panel dated November 2, 2016, listing claimant as "Deana Frederick, on Behalf of her Deceased Grandmother, Geneva Guffey[.]"
D. Affidavit of James Guffey, dated June 30, 2017, stating that Deana was acting on his behalf in the Medical Review Panel proceedings.
E. Affidavit of George Guffey (with the name "Grady O. Guffey" lined through), dated July 19, 2017, stating that Deana was acting on his behalf in the Medical Review Panel proceedings.
F. Supplement to Request for Medical Review Panel, dated May 18, 2017, adding James and Deana, as a representative of Geneva's estate, as claimants.
G. Medical Review Panel Opinion, dated November 15, 2017, finding that Lexington House breached the standard of care in its treatment of Geneva, that the breach was the cause of local discomfort, that the laceration was treated appropriately, and that the laceration did not exacerbate her chronic medical problems or contribute to her ultimate demise.
H. Judgment of Possession dated July 15, 2016.
I. Last Will and Testament of Geneva, dated March 14, 2014, naming Deana as the executrix of her estate.
J. Death Certificate for Geneva.
K. Petition for Damages.
L. Judgment of the Third Circuit dated February 2, 2018, in docket number 17-829.
M. Opposition to Writ Application in docket number 17-829.

An action in medical malpractice must be brought "within one year from the date of the alleged act, omission, or neglect, or within one year from the date of the discovery of the alleged act, omission, or neglect[,]" and "in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect." La.R.S. 9:5628. Louisiana Revised Statutes 40:1231.8(A)(2)(a) provides for a suspension of prescription "until ninety days following certification, by certified mail," of the issuance of the medical review panel opinion. In order for the suspension of prescription to be applicable, the request for the medical review panel must be correctly filed with the division of administration and the filing fee for same must be paid. Prescription is suspended as to the named party defendants, "all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified[.]" La.R.S. 40:1231.8(A)(2)(a).

A concise timeline of relevant events is as follows:

01/19/16 date of alleged malpractice
05/16/16 date of Geneva's death
11/02/16 date of the filing of request for panel by Deana
05/18/17 date of the filing of the amended complaint
11/15/17 date of issuance of panel opinion
02/02/18 date of writ denial in 17-829
01/26/18 date of filing of petition in district court

Lexington House argues that the petition filed in the district court on January 26, 2018, is prescribed on its face because it was filed more than one year after the date of the alleged malpractice (January 19, 2016, through May 16, 2016) and more than one year after the date of Geneva's death (May 16, 2016), and because the petition does not give the date that the request for the formation of a medical review panel was made. According to Lexington House, Plaintiffs must rely solely upon the argument that the filing of the complaint of malpractice made by Deana on November 2, 2016, suspended prescription in their favor. Lexington House's argument that the action is prescribed is founded on the assertions that Deana had no right of action to bring the claim for medical malpractice on behalf of Geneva and that Plaintiffs' claims cannot relate back to the date of the original filing of the request for a medical review panel for that reason. Lexington House contends that Deana has conceded that she has no right of action because she is not a party plaintiff in the present action. Plaintiffs deny that they are arguing any relation back to the original filing because it was unnecessary for James and George to participate in the medical review panel proceedings since the claim filed by Deana suspended prescription as to them.

"The Supreme Court conclusively established in LeBreton v. Rabito , 1997-2221, p. 9 (La. 7/8/98), 714 So.2d 1226, 1230, that the LMMA [Louisiana Medical Malpractice Act] applies to the exclusion of the general codal provisions found in our Louisiana Civil Code in determining the suspension or interruption of prescription in medical malpractice actions." In re Benoit , 17-802, p. 7 (La.App. 4 Cir. 4/11/18), 244 So.3d 44, 50. "The Act has no rules allowing relation back of pleadings for medical malpractice claims." Warren v. Louisiana Med. Mut. Ins. Co. , 07-0492, p. 4 (La. 12/2/08), 21 So.3d 186, 207-208, on reh'g (06/26/09).

Plaintiffs base their argument on Truxillo , 200 So.3d 972. In Truxillo , the patient died following gastric bypass surgery, and her daughter timely requested the formation of a medical review panel. The panel issued its opinion on July 7, 2013, and the daughter timely filed a petition in district court. Within the ninety day period, the petition was amended to add the patient's son as a plaintiff. He had not been a claimant in the medical review panel proceedings.

The defendants claimed that the son's action was prescribed. The fourth circuit stated:

There are no cases which address the specific issue with which we are presented; however, we find nothing in the Louisiana Medical Malpractice Act ("MMA") that requires that all parties who may potentially have a claim against a health care provider invoke a medical review panel proceeding. To the contrary, the purpose of the MMA, together with the MMA's express provisions and our jurisprudence interpreting it, leave no doubt that a medical review panel request need not be invoked by each and every person who may ultimately have a claim in medical malpractice. To hold otherwise would allow for the filing of multiple medical review panels by separate claimants for the same claims. This could result in numerous and varied medical review panel decisions, which, in turn, could result in more than one applicable prescriptive period for initiating suit, an untenable result. As discussed more fully herein, we find that the suspension of the time period for filing suit, triggered by the filing of a medical review panel request, accrues to the benefit of all persons who have claims arising out of the alleged medical malpractice, including those who did not participate in requesting the medical review panel.

Truxillo , 200 So.3d at 974 (emphasis in original). The difference between Truxillo and this case is that Truxillo's daughter was unquestionably a proper party plaintiff under La.Civ.Code arts. 2315.1 and 2315.2.

Conversely, the first circuit has stated that:

the statute expressly provides that the filing of a request for review of a malpractice claim "shall suspend the time within which suit must be instituted ... until ninety days following notification, by certified mail, ... to the claimant or his attorney of the issuance of the opinion by the medical review panel." (Emphasis added.) This language clearly indicates that only the person or persons who actually presented a "claim" for review are entitled to the suspension of prescription granted under La. R.S. 40:1299.47(A)(2)(a).
Furthermore, we observe that the legislature expressly provided that the filing of a request for review "shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors ... that are the subject of the request for review," thereby making the suspension of prescription invoked by the filing of the request effective against all other unnamed, potentially liable defendants . See La. R.S. 40:1299.47(A)(2)(a). Yet, the legislature did not provide for a similar application of the statute to benefit all other unnamed potential plaintiffs or claimants. We will not expand the application of the statute to so provide when the legislature has not done so, particularly in light of its ability to do so. See Ward [v. Vivian Healthcare and Rehabilitation Center ], 47,649[,] [ ] p. 7 [ (La.App. 2 Cir. 5/15/13),] 116 So.3d [870,] [ ] 875.

Parks v. Louisiana Guest House, Inc ., 13-2121, p. 8 (La.App. 1 Cir. 9/30/14), 155 So.3d 609, 613, writ denied , 14-2281 (La. 1/16/15), 157 So.3d 1131 (emphasis in original).

The difference between Parks and this case is that the patient in Parks died during the pendency of the medical review panel proceeding, and his children did not amend the complaint to the panel to include their claim for wrongful death. The claim for wrongful death was made for the first time when the petition was filed in district court after the medical review panel issued its opinion. The first circuit found that the medical review panel complaint filed by Mr. Parks before he died "only served to suspend the running of prescription as to the claim that he filed and did not suspend the running of prescription in favor of the plaintiffs' claims" and dismissed the claims of his children. Id. In the present case, Geneva died before the request for a medical review panel was made, and the wrongful death claim was presented to the panel (which determined that her death was not the result of the alleged malpractice).

Lexington House urges this court to follow the reasoning of the first circuit in the most recent case:

Rickerson v. Audubon Health & Rehabilitation Center , 6 17-629 (La.App. 1 Cir. 12/21/17), 2017 WL 6523082, (unpublished opinion), writ denied , 18-118 (La. 3/23/18), 239 So.3d 292. This is the case with facts most similar to the present case. Rickerson involved a situation where two competing claims were filed by the decedent's parents and his children. The original complaint was timely filed after the patient's death, but it is unclear who filed it. The patient is listed as "deceased." The filing indicates that a copy of the complaint was sent to two of his children, but the complaint did not list them as claimants. Within a year of the patient's death, his parents filed a complaint with the division of administration. Then, more than a year after the death, the patient's children sought to amend the original complaint to add themselves as claimants.

The children filed suit in the district court within ninety days of the issuance of the panel's opinion, and the defendant healthcare provider filed an exception of prescription alleging that the children's complaint before the panel was not timely filed and did not interrupt prescription. The trial court dismissed the children's claims. The first circuit declined to follow Truxillo , 200 So.3d 972, and upheld the trial court's finding that the claims of the children were prescribed. The first circuit stated:

While we recognize that the Fourth Circuit's opinion in Truxillo appears to be at odds with this court's earlier opinion in Parks , we are constrained to apply this court's holding in Parks , and, accordingly, we must conclude that the filing of the original complaint of malpractice naming "Joseph Triggs (Deceased)" did not serve to suspend the running of prescription as to the medical malpractice claims of Mr. Triggs's children.

Rickerson , 17-629, p. 4. The first circuit then addressed the relation back argument and stated:

In the instant case, application of the doctrine of relation back to the amended complaint adding Mr. Triggs's children as claimants would permit the adding of plaintiffs subsequent to the one-year prescriptive period provided for in LSA-R.S. 9:5628, thereby avoiding the application of that special prescriptive statute and reading out the prescription and suspension period provisions set forth in LSA-R.S. 9:5628 and LSA-R.S. 40:1231.8(A)(2)(a). See Warren , 21 So.3d at 207-208 (on rehearing). Thus, as instructed by the holding in Warren , we are constrained to conclude that the doctrine of relation back set forth in LSA-C.C.P. art. 1153 cannot be applied to allow the amended complaint adding Mr. Triggs'[s] children as claimants, which was filed more than one year after the alleged malpractice, to relate back to the timely filing of any other complaint.

Id. at p. 5.

As discussed above, this court has already considered a writ application by Lexington House on the issue of whether Deana had a right of action and found no error the trial court's ruling that she was, in fact, a proper claimant under the provisions of the LMMA. Plaintiffs contend that Lexington House is raising the same issue as in its exception of no right of action but calling it an exception of prescription. Plaintiffs argue that this court's disposition of "WRIT DENIED. We find no error in the trial court's ruling[ ]" is now law of the case. Lexington House argues that it is not law of the case because when the trial court ruled on the exception of no right of action, the trial court said "You're premature in [ ] filing whatever you're filing because if, in fact, the Medical Malpractice Act is just a prelude to a lawsuit, then when you get to the lawsuit[,] you might have a valid no right of action [sic] to the claim."

One of the issues raised in the writ application in 17-829 was that the trial court erred in failing to rule on the merits of the exception in finding that it was premature. However, we find that when the trial court denied the exception, it specifically stated that it would not "limit the process of the medical malpractice actions." Additionally, it is clear that this court considered the merits of the exception in its decision to deny the writ.

Moreover, the "denial of supervisory writs does not bar reconsideration of issues argued in the writ application on appeal." CLK Co., LLC v. CXY Energy, Inc. , 07-834, p. 8 (La.App. 3 Cir. 12/19/07), 972 So.2d 1280, 1286, writs denied , 08-140 and 08-207 (La. 3/14/08), 977 So.2d 932, 937. And, "the law of the case doctrine is discretionary." Suire v. Oleum Operating Co. , 17-117, p. 18 (La.App. 3 Cir. 11/2/17), 235 So.3d 1215, 1229, writ denied , 18-279 (La. 4/6/18), 239 So.3d 827, and writ denied , 18-271 (La. 4/6/18), 240 So.3d 184.

We find that the issuance of the first circuit's opinion in Rickerson , 17-629, compels this court to reconsider the issue of whether Deana has a right of action. While this writ application presents an issue of prescription, we find that the issues of right of action and prescription are inextricably intertwined in this case.

"A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice." Houghton v. Our Lady of the Lake Hosp., Inc. , 2003-0135 La.App. 1 Cir. 7/16/03, 859 So.2d 103, 105-106. According to La.R.S. 40:1231.1(A)(4) :

"Claimant" means a patient or representative or any person, including a decedent's estate, seeking or who has sought recovery of damages or future medical care and related benefits under this Part. All persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant.

"Representative" is defined as "the spouse, parent, guardian, trustee, attorney or other legal agent of the patient." La.R.S. 40:1231.1(A)(4).

Deana had a power of attorney from Geneva for two years prior to Geneva's death. She was named executrix and sole beneficiary in Geneva's will. Although she did not specifically designate herself as the succession representative when the original complaint was filed, the complaint makes clear that she was filing on behalf of her deceased grandmother. She amended the complaint to reflect that she was the representative of the estate. When the exception of no right of action was filed, she introduced documents proving that she was the succession representative. Lexington House does not dispute the validity of those documents.

Louisiana Revised Statutes 40:1231.8(B)(2)(a) now allows the health care provider to raise the peremptory exception of no right of action at any time, including before completion of the medical review panel process. The right to bring that exception was added by 2012 Acts No.

802, § 1. There was no corresponding amendment to the definition of "claimant" even though 2012 Acts No. 538, § 1, did add subsection (L) to La.R.S. 40:1231.1.

Lexington House argues that to define "claimant" as broadly as the trial court did in this case and in Truxillo , 200 So.3d 972, would render La.R.S. 40:1231.8(B)(2)(a) meaningless because "absolutely anyone" could be a claimant. Lexington House's argument completely ignores the language used in the definition of "claimant."

"It is [ ] well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject." M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27. "[R]ules of statutory construction provide that when two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character." City of Pineville v. Am. Fed'n of State, County, and Mun. Emps., AFL-CIO, Local 3352 , 00-1983, p. 4 (La. 6/29/01), 791 So.2d 609, 612.

There is a conflict between the definitions of which persons have a right of action under the Louisiana Civil Code and which persons can bring a claim under the LMMA. Although the legislature could have "Claimant" defined as those who have a right of action under either La.Civ.Code art. 2315.1 or 2315.2, it did not do so and specifically included "representative" and "a decedent's estate." La.R.S. 40:1231.1(A)(4). Furthermore, La.R.S. 40:1231.1(A)(4) does not state that the representative or the estate can be a claimant only when the classes of persons listed in La.Civ.Code arts. 2315.1 and 2315.2 do not exist.

We find that there is a difference between having a right of action to bring a complaint before the medical review panel and having a right of action to file suit in the district court once the panel proceedings are concluded. There must be a difference because there is the possibility that the patient will die after the conclusion of the panel proceedings but before the conclusion of any following litigation. Thus, a distinction between who can bring a claim before the panel and who can sue for damages after the conclusion of the panel proceedings is both reasonable and logical. The determination of who can bring a claim for damages is irrelevant to the definition of "claimant."

Lexington House's argument also ignores the last sentence of La.R.S. 40:1231.1(1)(4). Despite the first circuit's ruling in Parks , 155 So.3d at 613 (emphasis in original), the legislature did express an intent "for a similar application of the statute to benefit all other unnamed potential plaintiffs or claimants." If the singular term "claimant" is the basis for the first circuit's decision, then this basis falls in light of the pronouncement that "[a]ll persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant." La.R.S. 40:1231.1(1)(4). "There is, accordingly, no focus whatsoever on the claimants during the medical review panel process." Truxillo , 200 So.3d at 976. Moreover, "[t]he explicit statement that all persons damaged by the alleged malpractice are considered a 'single claimant' clearly contemplates the filing of a single request for a medical review panel, with the intent that the rights of all potential plaintiffs are protected." Id. at 975 (emphasis in original).

Accordingly, we find that Deana is a claimant pursuant to La.R.S. 40:1231.1(A)(4) and that her filing of the request for the formation of a medical review panel suspended prescription as to all potential plaintiffs. Truxillo , 200 So.3d 972. For these reasons, we render that the trial court did not commit manifest error in denying the exception of prescription filed by Lexington House and that this writ application is denied.

WRIT DENIED. We find no error in the trial court's ruling.

      Deana's father was Geneva's son who died before Geneva. Deana was Geneva's caregiver for several years before Geneva went to Lexington House. Deana was the executrix of Geneva's estate and was the sole beneficiary of Geneva's will.

      Geneva's will states that she has four children: Grady O. Guffey, Jr.; Otis Guffey; Kenneth Guffey (who predeceased her); and James "Buddy" Guffey.

      Lexington House sought an extension of the return date at the same time as the notice was filed.

      The petition was filed within ninety days of the issuance of the panel opinion.

      Grandchildren are not included in the first class of beneficiaries in La.Civ.Code art. 2315.1 and do not step into the shoes of their deceased parents for purposes of the right action. See Dufrene v. Avondale Industries, Inc. , 01-1474 (La.App. 4 Cir. 8/22/01), 795 So.2d 456, writ denied , 01-2613 (La. 10/26/01), 799 So.2d 1156. We recognize that, even as succession representative, Deana is not the proper party plaintiff to bring the survival action in the district court because the succession representative has that right only in the absence of any of the enumerated classes. As discussed below, however, we find that the definition of "claimant" under La.R.S. 40:121231.1(A)(4) is not synonymous with the classes of beneficiaries listed in La.Civ.Code arts. 2315.1 and 2315.2.

      This case had not been decided at the time the writ in docket number 17-829 was filed.

      We recognizes that this is not an appeal and that there is an argument as to whether the inclusion of the "we find no error" language precludes further review of this issue; however, that argument is for another day and is not germane to this case.


author: Judge Edwin A. Lombard

text:
    Timothy L. JARQUIN v. Danny R. BLANKS Individually and in His Capacity as a Member and Manager of Pontchartrain Partners, L.L.C., et al. Barlow Cook, Individually and in His Capacity as a Member and Manager of Pontchartrain Partners, L.L.C.; Jamers R. Washington, III Individually and in His Capacity as a Member and Manager of Pontchartrain Partners, L.L.C.; Mary LaBlanc, Individually and in His Capacity as a Member and Manager of Pontchartrain Partners, L.L.C.
    NO. 2018-CA-0157
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 15, 2018
    P.J. Stakelum, III, Stephen D. Marx, Preston L. Hayes, CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, LLP, Post Office Box 931, Metairie, LA 70004-0931, COUNSEL FOR PLAINTIFF/APPELLANT
    J. Scott Loeb, Jason R. Anders, Lauren Fajoni Bartlett, LOEB LAW FIRM, 1180 West Causeway Approach, Mandeville, LA 70471 and Hebert Cade, HERMAN HERMAN & KATZ, LLC, 820 O'Keefe Ave., New Orleans, LA 70113, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
   Judge Edwin A. Lombard

This appeal is from the district court judgment granting an exception of no cause of action pertaining to a request for injunctive relief. After review of the record in light of the applicable law and arguments of the parties, the judgment of the district court is affirmed.

Relevant Facts and Procedural History

On October 31, 2017, Timothy L. Jarquin filed a petition for preliminary and permanent injunctive relief, declaratory judgment, and damages against defendants Danny R. Blanks, Barlow J. Cook, James R. Washington, III, and Mary LeBlanc individually and in their capacities as members of Ponchatrain Partners, L.L.C. The plaintiff, also a member of the Ponchatrain Partners, L.L.C., asserted that the defendants intentionally acted contrary to the L.L.C. operating agreement and applicable law, recklessly disregarding his rights and interest through conduct that caused and continues to cause him harm. Specifically, the plaintiff complains that the defendants illegally removed him as manager of their joint business venture at a meeting held on October 2, 2017.

On October 10, 2017, the plaintiff filed suit against the defendants in Jefferson Parish but that suit was dismissed on an Exception of Improper Venue. On October 31, 2017, the plaintiff filed the instant action in Civil District Court for the Parish of Orleans against the defendants (but not the L.L.C), seeking damages and injunctive relief. The defendants responded to the plaintiff's application for injunctive relief, filing numerous exceptions, including the Exception of No Cause of Action at issue in this appeal. The hearing on the exceptions and preliminary injunction, based on verifications and affidavits only (as requested by the plaintiff in his application for injunctive relief) was heard on November 8, 2017. By judgment rendered orally on November 8, 2017, and signed on December 7, 2017, the district court granted the defendant's exception of no cause of action as to the plaintiff's claims for injunctive relief and denied as moot the plaintiff's application for a preliminary injunction.

The plaintiff timely filed this devolutive appeal.

Standard of Review

The denial of a preliminary injunction is reviewed under the abuse of discretion standard. Limousine Livery, Ltd. v. Airport Limousine Service, L.L.C., 2007-1379, p. 5 (La. App. 4 Cir. 3/12/08), 980 So.2d 780, 783 (citations omitted); but see Ellis Const., Inc. v. Vieux Carre Resort Properties, L.L.C., 2005-1109, p. 3 (La. App. 4 Cir. 6/7/06), 934 So.2d 206, 209 ("Appellate courts review a trial court's granting of a preliminary injunction by determining if the trial court committed an error of law or if the granting was manifestly erroneous or clearly wrong." (emphasis added) ).

Applicable Law

To prevail in the district court on a motion for preliminary injunction, an applicant must establish by prima facie evidence that: (1) the injury, loss, or damage suffered in absence of injunction may be irreparable; (2) entitlement to relief sought; and (3) prevailing on the merits of the case is likely. Limousine Livery, supra (citations omitted). Irreparable means an injury that cannot be adequately measured or compensated by money. Limousine Livery, 2017-1379, p. 8, 980 So.2d at 785 (citation omitted). Most notably, preliminary injunctions cannot be used to correct an action that has already taken place, i.e., a "fait accompli" cannot be overturned. Limousine Livery, 2007-1379, p.9 (La. App. 4 Cir. 3/12/08), 980 So.2d at 786 (citation omitted); see also Verdun v. Scallon Bros. Contractors, Inc. 263 La. 1073, 1078, 270 So.2d 512 (1972) ("Injunction may be used to prevent but not to correct a wrong; it cannot be employed to redress an alleged consummated wrong or undo what has already been done."); Crowe v. Eagle Bend Development, Partnership, 579 So.2d 1101, 1101-1102 (La. App. 2 Cir. 1991) (the purpose of injunction is "to prevent specifically threatened future conduct," not to undo or remedy past conduct; if the act sought to be enjoined has already been committed, there is no ground for an injunction).

Discussion

On appeal, the plaintiff argues that it was error for the district court to conclude that he failed to show irreparable harm because the actions that the defendants took in holding the October meeting and impairing his voting and managerial righters were illegal and contrary to operative agreement governing the partnership. This question, however, goes to the substantive matters of the case. The only issue currently before us is whether the district court abused its discretion in granting the defendants' exception of no cause of action with regard to injunctive relief and dismissing the plaintiff's application for injunctive relief. The pertinent jurisprudence is clear: the purpose of injunctive relief is to prevent future action, not to overturn an action that has already taken place. In this case, the action complained of took place on October 2, 2017. The plaintiff does not dispute that he was notified in advance of the meeting and chose not to attend or seek injunctive relief until more than a week later. Moreover, the action taken which the plaintiff seeks to overturn is his removal as managing partner of the L.L.C. Clearly, reinstatement as managing partner in a business is beyond the parameters of injunctive relief. Therefore, we find no error in the judgment of the trial court granting the defendants' exception and dismissing the plaintiff's application for injunctive relief.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      The plaintiff was given notice that the meeting would take place on September 27, 2017.