source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Ella Walker JOHNSON v. Glenn R. JOHNSON, Sr.
    18-1001
    Court of Appeal of Louisiana, Third Circuit.
    May 8, 2019
    Dean J. Guidry, Attorney at Law, P. O. Box 5255, Lafayette, LA 70502, (337) 266-2250, COUNSEL FOR PLAINTIFF/APPELLANT: Ella Walker Johnson
    Glenda Maria August, Attorney at Law, 129 West Pershing St., New Iberia, LA 70560, (337) 369-7437, COUNSEL FOR DEFENDANT/APPELLEE: Glenn R. Johnson, Sr.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

The plaintiff/appellant, Ella Walker Johnson, appeals the trial court's judgment terminating interim and permanent spousal support. For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Ella filed for divorce from the defendant/appellee, Glenn Johnson, Sr., on April 10, 2014. Following an August 2014 conference, the hearing officer recommended that Glenn pay interim periodic support in the amount of $ 1,300.00 per month, retroactive to the date of demand. The hearing officer's recommendations were adopted as the final judgment of the trial court on September 11, 2014.

On October 17, 2014, Ella filed a "Motion and Order for Rule for Judgment of Past Due Alimony, Contempt, and Attorney Fees" claiming that Glenn was in arrears for $ 8,450.00 for failing to pay support from April 2014 through October 2014. A hearing officer conference took place in November 2014. The hearing officer's recommendations found Glenn in arrears in the amount of $ 6,760.00, and in contempt for failing to comply with the court order to maintain Ella's auto insurance. The hearing officer sentenced Glenn to thirty days in jail but suspended the sentence if certain financial conditions were met. Glenn and Ella both filed objections to the hearing officer's recommendations. Thereafter, Glenn filed a rule to show cause why divorce should not be granted. A judgment of divorce was granted and signed on February 4, 2015.

On March 23, 2015, Ella and Glenn entered into a "Consent Judgment," whereby Glenn was subject to an income assignment order in the amount of $ 1,200.00 per month "for the payment of the interim spousal support obligation." The consent judgment suspended the thirty-day sentence imposed on Glenn for contempt. It also included other conditions Glenn had to meet in order to make his past due arrearages current.

On June 13, 2018, Glenn filed a "Rule for Termination or Reduction of Spousal Support Payments to Ella Walker Johnson" due to job loss and a significant reduction in his monthly pay beginning in December 2016. Glenn prayed that "the payments for spousal support, previously ordered on March 23, 2015 ... be eliminated; and, alternatively, that the amounts which Mover has been ordered to pay be eliminated or substantially reduced."

Following a July 24, 2018 conference, the hearing officer made certain findings of fact including that:

1. Plaintiff seeks final periodic spousal support. Defendant seeks to terminate the interim periodic spousal support, and he also submits that Plaintiff does not need final periodic spousal support and/or that he cannot afford to pay it.
2. The Hearing Officer notes that the finding and recommendations herein are strictly limited to whether Plaintiff has a need for final periodic spousal support, and whether Defendant has the ability to pay same[.]

The hearing officer's recommendation was that Glenn pay $ 300.00 per month in "final periodic support." Both parties objected to the hearing officer's recommendation.

The rule was set for August 6, 2018, to set the matter for trial on the merits. However, according to the reasons for ruling, the trial court had a light docket that day and heard testimony from the parties and ordered that assorted paperwork be sent to the trial court. Ella's counsel objected. On October 10, 2018, the trial court rendered judgment terminating interim spousal support retroactive to February 4, 2015, on the basis that the divorce decree terminated interim spousal support and ordered that all wage assignments cease immediately.

A hearing was scheduled for December 13, 2018, to discuss credits and/or arrearages, however that has been delayed pending the appeal.

Ella assigns as error:

1. The trial court and Plaintiff-in-rule failed to give notice to Defendant-in-rule in a procedurally timely manner that the issue of retroactive termination of a consent judgment incidental to a contempt proceeding was at issue in violation of Article I, Sec. 2 of the Louisiana Constitution which guarantees every citizen the right not to be deprived of his property without due process of the law.
2. The trial court summarily, sue [sic] sponte, ruled on a cause of action for reimbursement based on a consent judgment incidental to a contempt proceeding, which cause of action is founded in unjust enrichment under La.C.C. Art. 2298, was not plead and cannot be adjudicated in a summary proceeding under La.C.C.P. Art. 2592, much less from the bench without a hearing.

DISCUSSION

The trial court's written reasons for judgment summarize some of the procedural irregularities in this case (citation omitted):

A review of the Hearing Officer Recommendation clearly identifies the Rule for Termination or Reduction of Spousal Support as the proceeding before him on July 24, 2018. However, the hearing officer, inexplicably, expanded the pleadings in his handling of this matter as a request for final periodic support. Additionally, the hearing officer recommendation is silent on any agreement by the parties to expand these proceedings.
The fact that neither party objected to this expansion of the proceedings, does not allow this court to do the same. As such, the court will address the [sic] only interim spousal support as it was the only matter properly before the court on August 6, 2018. The review of the court record was initially at issue to trace the original judgement of spousal support to clear up the difference in amounts. A review of the entire official record produced one judgment of spousal support. That is the judgment ordering Mr. Johnson to pay interim spousal support to Ella Walker Johnson. It is the same judgment Mr. Johnson sought relief from in his recent filing. The only mention of "final support" was in Ella Walker Johnson's original petition for divorce. Although mentioned, no action was ever taken to request or set final spousal support for hearing. As such, the matter before the court is the termination of interim spousal support for reasons stated herein.

The Hearing

The trial court addressed its decision to have a hearing on the rule date wherein the parties would normally set the matter for a hearing date:

The parties presented for the stated rule day without a need for interim orders but were having difficulty agreeing upon a merits day. As all parties were in court and the rule day was very light, the court offered to hear the matter. Mr. Guidry, attorney for Ella Walker Johnson, objected to going forward because he wanted to subpoena his client's nephew. After hearing his objections and the reason for the testimony, the court agreed to allow the witness to testify, if needed, at a later date. The court also considered Mr. Johnson's desire to move forward and the financial hardship; the presence of both parties; the inability of the parties to agree to another date and judicial economy before moving forward on August 6, 2018. The court requested supplemental documentation from the parties, and the matter was fully submitted on August 27, 2018.

Based on our findings below, the assignment of error relating to the trial court's failure to hold a full hearing is rendered moot.

Interim Spousal Support

Louisiana Civil Code Article 113 was amended effective August 1, 2018, but at the time of the order in question, it read (emphasis added):

A. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce.
B. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.
C. Notwithstanding Paragraph B of this Article, if a claim for final spousal support is pending at the time of the rendition of a judgment of divorce pursuant to Article 103(4) or (5) and the final spousal support award does not exceed the interim spousal support award, the interim spousal support award shall thereafter terminate no less than one hundred eighty days form the rendition of judgment of divorce. The obligation to pay final spousal support shall not begin until after an interim spousal support award has terminated.

Consent Judgment

The consent judgment of March 2015 stated that, "This withholding shall continue until modified or terminated by the Court[.]"

A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. Durfee [v. Durfee ], 44,281, p. 4 [ (La.App 2 Cir. 5/13/09) ], 12 So.3d [984] at 987-988. (Citations omitted.) It has binding force from the voluntary acquiescence of the parties. Id. A contract is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. Id.
Whether the amount of spousal support awarded through a consent judgment can be modified depends upon the language employed in the consent judgment. Ray v. Ray , 2005-0873, p. 5 (La.App. 1 Cir. 3/23/07), 960 So.2d 174, 178. To bar modification of the duration and/or amount of spousal support, the consent judgment must evidence clear intent of the parties to do so. Id.

Gebhard v. Gebhard , 10-1412, p. 6 (La.App. 4 Cir. 2/16/11), 60 So.3d 717, 721. See also Pellerin v. Pellerin , 17-946 (La.App. 3 Cir. 6/6/18), 249 So.3d 77. We find the consent judgment, which was voluntarily entered into by the parties, satisfied the good cause shown requirement of Article 113(B). The consent judgment served to extend the obligation of interim spousal support beyond that period provided for by operation of law. Pellerin , 249 So.3d 77.

It is clear from the pleadings that Glenn never had any intention to retroactively void the payments he had made to Ella for the previous three years pursuant to the consent judgment because Glenn's motion was for a reduction and/or termination of the payment going forward due to decreased income. He did not plead for retroactive reimbursement from the date of divorce. The consent judgment remained in effect between the parties at the time the trial court rendered its judgment. Accordingly, we reverse the trial court's judgment terminating the interim spousal support award retroactive to February 4, 2015, the date the divorce was final.

In the interest of judicial economy, we are able to render judgment based on the record in evidence. We find the interim spousal support award terminated on the date the trial court rendered judgment, October 10, 2018, based on the evidence in the record that Glenn's pay had been substantially reduced and Ella began receiving payments from the Social Security Administration in January 2018.

Final Support

With the matter of interim spousal support disposed of, we are left with the issue of final support. From the record, it can only be determined that the hearing officer made recommendations as to final support "pursuant to a Rule for Termination or Reduction of Spousal Support Payments to Ella Walker Johnson." A party must specifically plead for final support; a general prayer for relief is inadequate. Holly v. Holly , 18-207 (La.App. 3 Cir. 9/26/18), 255 So.3d 1158. Because final support was not specifically pled for by Ella, the hearing officer's recommendation of $ 300.00 in final support is a nullity. We note, however, that Ella does not forfeit her right to assert a claim for final support even if the divorce has been granted. See Dubourg v. Parisy , 291 So.2d 441 (La.App. 4 Cir. 1974) and Scott v. Scott , 579 So.2d 1094 (La.App. 2 Cir. 1991).

CONCLUSION

The judgment of the trial court terminating interim spousal support retroactively to the date of the judgment of divorce is reversed. Interim spousal support is terminated effective October 10, 2018. The hearing officer's recommendation of $ 300.00 in final support is a nullity. Costs of this appeal are shared equally between the parties.

REVERSED AND RENDERED .

      The "Consent Judgment" states that "THIS MATTER came before the court on December 17, 2014 on the plaintiff's Motion for Contempt."

      The legislature simplified Article 113, which now reads (emphasis added):
      A. Upon motion of a party, the court may award a party interim spousal support based on the needs of that party, the ability of the other party to pay, any interim or final child support obligation, and the standard of living of the parties during the marriage. An award of interim spousal support shall terminate one hundred eighty days from the rendition of a judgment of divorce , except that the award may extend beyond one hundred eighty days for good cause shown.
      B. An obligation to pay final periodic support shall not begin until an interim spousal support award has terminated.


author: Judge Rosemary Ledet

text:
    MEDICAL REVIEW COMPLAINT BY Daron DOWNING, Andrus Downing, Andria Downing, and Andre Downing for Melissa Downing (D)
    NO. 2018-CA-1027
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 8, 2019
    Wanda A. Davis, LEEFE, GIBBS, SULLIVAN, DUPRE AND ALDOUS, L.L.C., 3900 North Causeway Blvd., Suite 1470, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Benjamin J. Biller, C. William Bradley, Jr., Richard S. Crisler, BRADLEY MURCHISON KELLY & SHEA, LLC, 1100 Poydras Street, Suite 2700, New Orleans, LA 70163, Carl E. Hellmers, III, D. Burke Stough, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, Karen M. Fontana Young, KEAN MILLER LLP, 909 Poydras Street, Suite 3600, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )
   Judge Rosemary Ledet

This is a medical malpractice case involving both private and state health care providers. Both the Medical Malpractice Act ("MMA") (currently codified in La. R.S. 40:1231.1, et seq . ), which governs claims against private qualified health care providers, and the Medical Liability for State Services Act ("MLSSA") (currently codified in La. R.S. 40:1237.1, et seq . ), which governs claims against state health care providers, apply here. This case is in the pre-suit, medical review panel stage.

This case arises out of alleged malpractice in the treatment of Melissa Downing on July 13, 2014, at Interim Louisiana State University Hospital in New Orleans ("LSU Hospital"). On the night of July 11, 2014, Ms. Downing was seriously injured in a high-speed automobile accident. Ms. Downing was initially treated at a local hospital (former River Parish Hospital in LaPlace, Louisiana). Due to the nature of her injuries, Ms. Downing was transferred to LSU Hospital in New Orleans on the next day. On July 13, 2014, Ms. Downing sustained an anoxic brain injury, which led to her death on April 20, 2015. Ms. Downing's death certificate listed the following three causes of death: (i) respiratory failure; (ii) anoxic brain injury ; and (iii) motor vehicle accident.

On July 13, 2015, Ms. Downing's estate and four of her five surviving children (collectively "the "Downing Family") filed a request for a medical review proceeding with the Division of Administration (the "DOA"), alleging malpractice by twelve named defendants in the treatment provided to Ms. Downing on July 13, 2014, at LSU Hospital (the "Complaint"). Five of the named defendants were private health care providers covered by the MMA; five were state providers covered by the MLSSA; and two were never properly identified and thus dismissed.

On October 13, 2015, four of the five state providers filed in the Civil District Court for the Parish of Orleans a Petition to Institute Discovery pursuant to La. R.S. 40:1237.2(D)(4) (the "CDC Case"). In the fall of October 2017, before the completion of the medical review panel proceedings, three of the private health care providers-University Medical Center Management Corp. d/b/a Interim LSU Hospital ("Interim LSU"), Dr. Rebecca Schroll, and Dr. Charles Clark (collectively the "Private Providers")-filed peremptory exceptions of prescription in the CDC Case.

The grounds for the Private Providers' exceptions was the Downing Family's failure to comply with La. R.S. 40:1231.8(A)(1)(c), which provides:

A claimant shall have forty-five days from the date of receipt by the claimant of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.

The penalty for failure to comply with Subparagraph (c) is set forth in La. R.S. 40:1231.8(A)(1)(e), which provides:

Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified forty-five day time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.

In support of their exceptions, the Private Providers argued that the Downing Family's failure to timely pay the entire filing fee they owed for invoking a medical review panel-$ 500 ($ 100 for each of the five qualified private health care providers named in the Complaint)-rendered the entire request invalid and without effect. Accordingly, they contended that the Downing Family's medical malpractice claim against them prescribed, by operation of law, on April 20, 2016, one year from the date of Ms. Downing's death.

Agreeing with the Private Providers, the trial court orally reasoned that it did not "find that the requisite fees were appropriately paid." For this reason, the trial court sustained the exceptions of prescription and ordered that the Downing Family's "proposed claim of medical malpractice ... PCF File No. 2015-00753, is DISMISSED WITH PREJUDICE and the pending medical review panel proceeding in that matter is dissolved." This appeal followed.

Standard of Review

In a medical malpractice case in which the plaintiff's complaint requesting a medical review panel serves initially as the petition and serves to suspend prescription, "the health care provider can assert a prescription exception in a court of competent jurisdiction and proper venue at any time without regard to whether the medical review panel process is complete." In re Med. Review Panel for Claim of Moses , 00-2643, p. 6 (La. 5/25/01), 788 So.2d 1173, 1177 ; La. R.S. 40:1231.8(B)(2)(a). Such is the procedural posture of this case. In this procedural posture, the Louisiana Supreme Court has noted that "we resolve the issue of the placement of the burden of proof based on a logical application of the general principle that the party asserting a suspension or interruption of prescription bears the burden." Id. The Supreme Court has further noted that "[s]ince the party asserting a suspension is plaintiff, logic dictates that plaintiff have the burden of proof." Id. , 00-2643, p. 6, 788 So.2d at 1178. The Downing Family, as the party asserting a suspension, has the burden of proof here.

The standard of review applied to address a trial court's judgment sustaining a prescription exception "varies based on whether evidence was introduced in the trial court at the hearing on the exception." Barkerding v. Whittaker , 18-0415, p. 13 (La. App. 4 Cir. 12/28/18), 263 So.3d 1170, 1180, writ denied , 19-166 (La. 4/8/19), 267 So.3d 607, 2019 WL 1615947. "When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review." London Towne Condo. Homeowner's Ass'n v. London Towne Co. , 06-401, p. 4 (La. 10/17/06), 939 So.2d 1227, 1231 (citing Carter v. Haygood , 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267. Such is the case here.

This case, however, also presents an issue of statutory construction regarding the suspension of prescription under the MMA and the MLSSA. Statutory construction presents a question of law and, thus, is subject to a de novo standard of review. Succession of Dauterive , 18-0131, p. 4 (La. App. 4 Cir. 7/18/18), 251 So.3d 1204, 1207, writ denied , 2018-1382 (La. 11/14/18), 256 So.3d 293 (citing Benjamin v. Zeichner , 12-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201 ); Burnette v. Stalder , 00-2167, p. 5 (La. 6/29/01), 789 So.2d 573, 577 ). Simply put, legal decisions are reviewed de novo . Thibodeaux v. Donnel , 08-2436, p. 3 (La. 5/5/09), 9 So.3d 120, 122.

In sum, both the manifest error and the de novo standard apply here.

Special Prescription Rules Governing Medical Malpractice Actions

The special prescriptive period governing medical malpractice actions is set forth in La. R.S. 9:5628(A), which generally provides a prescriptive period of one year from the date of the alleged negligent treatment. This case involves both wrongful death and survival action claims. Although survival action claims are governed by La. R.S. 9:5628(A), wrongful death claims are governed by the one-year period applicable to delictual actions set forth in La. C.C. art. 3492. Taylor v. Giddens , 618 So.2d 834, 842 (La. 1993). Wrongful death claims, nonetheless, "continue to be governed and procedurally controlled by the provisions of the Act [here the MMA and the MLSSA]." Taylor , 618 So.2d at 841.

Despite the one-year prescriptive period, "medical malpractice lawsuits are virtually never actually filed in courts of competent jurisdiction within one year of the alleged act of malpractice." In re Noe , 05-2275, p. 8 (La. 5/22/07), 958 So.2d 617, 622 (Calogero, C.J., concurring in part, dissenting in part). This is because "[f]iling a complaint with the review panel is a mandatory initial step in a malpractice claim and a requirement before filing suit 'in any court.' " Nathan v. Touro Infirmary , 512 So.2d 352, 353 (La. 1987). Acknowledging this initial step, the Louisiana Legislature has expressly "provided that the filing of the request for a review of a claim suspend[s] the running of prescription, ... just as the filing of a suit in a competent jurisdiction suspends the running of prescription." Id. at 354.

Two special suspension provisions are codified in La. R.S. 40:1231.8(A)(2)(a) of the MMA and La. R.S. 40:1237.2(A)(2)(a) of the MLSSA. These statutes each contain two sentences. As former Chief Justice Calogero explained:

The first sentence ... expressly suspends the one-year prescriptive period for filing a medical malpractice action in a court of competent jurisdiction until 90 days following notification of the issuance of the medical review panel's opinion. ["Sencence One"]. The second sentence expressly suspends prescription against all joint and solidary obligors/tortfeasors "to the same extent" prescription has been suspended against one or more other joint or solidary obligors/tortfeasors when a timely request for review has been filed against that obligor/tortfeasor. ["Sentence Two"].

Noe , 05-2275, p. 9, 958 So.2d at 623.

Resolution of the issue presented here requires a separate consideration of both of these provisions; hence, we divide our analysis into the following two parts: (i) Sentence One-Medical Review Proceeding Suspension; and (ii) Sentence Two-Joint Tortfeasor Suspension.

Sentence One-Medical Review Proceeding Suspension

If a claimant perfects a request for a medical review panel against a qualified health care provider, Sentence One provides that prescription is suspended on the malpractice claim until 90 days following notification of the issuance of the medical review panel's opinion. Here, the first question is whether the Complaint qualified as a perfected request for review such that, pursuant to Sentence One, prescription was suspended. We find that it did not qualify as a perfected request.

To perfect a request for review, a claimant must pay the full filing fee of $ 100 per provider in accordance with La. R.S. 40:1231.8(A)(1)(c), which imposes a 45-day deadline. The 45-day deadline runs from the date of mailing of the confirmation of receipt of the request for review. If, within 45 days after the Patient Compensation Fund (the "PCF") sends a confirmation of receipt, the claimant fails to pay the full filing fee, La. R.S. 40:1231.8(A)(1)(e) provides the penalty, which is that the request for review is invalid and without effect.

Both the filing of the request for review and the payment of the filing fee are "inexorably joined"; hence, the request for review is not considered to be filed until the claimant pays the filing fee. Med. Review Panel of Davis v. Louisiana State Univ. Health Sciences Ctr.-Shreveport , 41,273, p. 6 (La. App. 2 Cir. 8/25/06), 939 So.2d 539, 543. Again, the penalty for failing to pay the full filing fee is that the request for review is considered invalid and without effect. La. R.S. 40:1231.8(A)(1)(e). "Because such an invalid request does not suspend the time within which suit must be instituted, a subsequent request, filed beyond the one-year period for filing a medical malpractice claim, [will] not [be] timely." In re Smithson , 07-2262, pp. 7-8 (La. App. 1 Cir. 6/6/08), 991 So.2d 1075, 1080.

Under both the MMA and the MLSSA, a request for a medical review panel is initiated in the same manner-the claimant files a request for review of the claim by a medical review panel with the DOA. Smithson , 07-2262, p. 5, 991 So.2d at 1078. When, as here, a joint request for both a state and a private panel is made, the DOA's general procedure is to retain a copy of the request and forward the original to the PCF. Smithson , 07-2262, p. 8, 991 So.2d at 1080. Thereafter, the DOA sends a notification letter regarding the state defendants, which includes a request for payment of the applicable filing fee within 45 days. Id. The PCF Board sends a similar notification letter regarding the private defendants, which includes a request for payment of the applicable filing fee within 45 days. Id. These events occurred here.

The record reflects that both the DOA and the PCF sent notifications letters to the Downing Family, through their attorney, which included requests for payment of the filing fee to the respective administrative agency within a 45-day period. The applicable filing fees were $ 500 due the PCF and $ 500 due the DOA (or the commissioner of administration (the "Commissioner")). Stated otherwise, the chain of correspondence in the record between the administrative agencies and the Downing Family's attorney reflects that, for purposes of collecting the filing fees, this case was administered as a bifurcated proceeding-the PCF as to the private defendants (PCF No. 2015-00753); the DOA as to the state defendants (15 MR 003).

To provide the necessary framework for analyzing the prescription issue presented here, we summarize, in chronological order, the chain of correspondence between the agencies and the Downing Family, through their attorney.

On July 23, 2015, the PCF acknowledged receipt of the Complaint and assigned the case a number, PCF No. 2015-00753. In its acknowledgement letter, the PCF provided the following breakdown of the twelve named defendants: three private providers qualified under the MMA-the Private Providers; two providers pending verification as to whether they were qualified under the MMA-Brenda Laws and Devin Johnson; five providers not qualified under the MMA, but qualified under the MLSSA-the State Providers; and two providers for whom incomplete names were given. Finally, the PCF acknowledged receipt of the Downing Family's check for $ 100 and admonished the Downing Family as follows:

In accordance with R.S. 40:1299.47(A)(1)(c) [now 40:1231.8(A)(1)(c) ] a filing fee of $ 100 per qualified defendant must be received by the Patient's Compensation Fund within 45 days of the postmark of this notice without exception. Please remit full payment to the Patient's Compensation Fund in the amount of $ 200 (balance due). This filing fee may only be waived upon receipt of an affidavit from a physician or a district court's in forma pauperis ruling as set forth in R.S. 40:1299.47(A)(1)(d) [now 40:1231.8(A)(1)(d) ]. Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.

On August 4, 2015, the PCF advised the Downing Family that the two providers pending verification-Ms. Laws and Mr. Johnson-were both qualified private providers. The PCF further advised that a $ 100 filing fee for each of these two qualified private providers must be received by the PCF within 45 days of the postmark of the notice without exception and stated "[p]lease remit full payment to the [PCF] in the amount of $ 200." At this point, the Downing Family owed a total of $ 400 in filing fees to the PCF-$ 100 for each of the five private qualified private providers, as reflected in the PCF's July 23, 2015, and August 4, 2015 letters, less the $ 100 tendered with the Complaint.

On August 29, 2015, the Downing Family, through their attorney, sent a check to the PCF in the amount of $ 200. The Downing Family's attorney stated in her August 29, 2015 cover letter to the PCF that "[a]lso included is a copy of a check that is being submitted to the Division of Administration for $ 500 in accordance with their attached letter dated July 17, 2015 and directing that the check be submitted to the Division of Administration."

On September 1, 2015, the DOA acknowledged receipt of the $ 500 check; the DOA's acknowledgement letter indicated that the claim against the state defendants was assigned Medical Review Panel Number 15 MR 003.

On September 9, 2015, the PCF acknowledged receipt of a check in the amount of $ 200 from the Downing Family. Thereafter, the Downing Family submitted another check to the PCF for $ 200; however, the PCF did not receive this other check until September 28, 2015, which was after the 45-day period had elapsed (the deadline was September 18, 2015).

On October 1, 2015, the PCF notified the Downing Family that "although money was remitted, a refund is being processed because the balance due [was] received untimely. Therefore the above cited case [PCF 2015-00753] is considered invalid and without effect as to Brenda P. Laws and Devin Johnson."

In response to the October 1, 2015 notice, the Downing Family's attorney sent a letter to the PCF, dated October 15, 2015, in which she stated that she was charged twice for one of the providers, Dr. Schroll. She further stated the following:

[T]here are only 8 qualified medical providers and $ 800 was submitted before the additional $ 200.00 payment was received on September 28, 2015. I have been receiving requests for payment from both the Commissioner of Administration and the Patient Compensation Fund and submitting requests for payment to both.... $ 1,000 has been paid. I am owed a reimbursement of the additional $ 200.00 because $ 1,000.00 has been paid and only $ 800.00 is due.

This response is inconsistent with the record, which reflects that there were a total of ten qualified providers named in the Complaint-five private providers and five state providers-and that a total of $ 1,000 was due-$ 500 to each of the respective agencies, the PCF and the DOA.

Likewise, the Downing Family's argument on appeal that they were overcharged for Dr. Schroll is not supported by the record. The Downing Family presented no evidence that they paid the DOA for Dr. Schroll. Indeed, Dr. Schroll was listed on the initial letter from the PCF as a qualified private provider. Regardless, any payments made to the DOA are not relevant on the issue of whether the full filing fee due the PCF was paid. The DOA and the PCF are separate administrative bodies; each administrative body separately collected the respective filings fees.

The Downing Family further contends that the PCF's October 1, 2015 letter stating that the Complaint was only invalid as to two providers-Ms. Laws and Mr. Johnson-supports their position that suspension of prescription is achieved on an individual-defendant basis. Put differently, their position is that the failure to pay the filing fee for one or more providers does not invalidate the entire request and that suspension of prescription should be achieved on an individual-defendant basis when the fee for a particular defendant is paid.

The Private Providers counter that the PCF's statement that the invalidity of the request pertained only to two of the five private defendants is neither judicially binding nor legally correct. Rather, they contend that a failure to pay the fee as to all qualified defendants renders the request for a medical review panel invalid and without effect as to all qualified defendants, even when timely payment was received as to some qualified defendants. Thus, they contend that the invalidity extends to the Downing Family's entire request, which included five private defendants. The Private Providers further contend that the PCF lacks the authority to allocate a filing fee among the named private defendants and that a partial filing fee is not allowed.

According to the Private Providers, resolution of the issue presented here-whether the Downing Family's medical malpractice claim against them is prescribed-is simple:

• The Downing Family's request for formation of a medical review panel named five qualified private defendants, resulting in them owing the PCF a filing fee of $ 500;
• The Downing Family only remitted $ 300 within the prescribed 45-day period;
• The Downing Family's failure to timely remit the full filing fee rendered their request for formation of a medical review panel invalid and without effect per statute; thus,
• The Downing Family's request did not suspend the time within which to institute suit.

The jurisprudence, as the Private Providers contend, has construed the statutory provision to mean that that if a claimant fails to pay the "full filing fee" within the applicable 45-day period to the appropriate administrative agency, the entire request for review panel is invalid and without effect as to all the providers. Rideaux, 2013 WL 811628, *2. The PCF, as the Private Providers further contend, lacks the authority to designate the particular providers to whom a partial fee applies; rather, the PCF's duties are ministerial and clerical. See In re Elliott , 06-1440, p. 10, n. 4 (La. App. 3 Cir. 4/9/08), 980 So.2d 881, 887 (observing that "[t]he DOA and the PCF stand by analogy as the clerk of court of the judicial district"). Because here the Complaint named five private defendants and only $ 300 was paid to the PCF, the trial court was not manifestly erroneous in finding that the Complaint, insofar as the Private Providers are concerned, was invalid and without effect and did not suspend prescription under Sentence One.

Our finding that Sentence One is inapposite to suspend prescription as to the Private Providers, however, does not end our analysis. The separate issue of whether the Downing Family's proposed claim of medical malpractice against the Private Providers is prescribed requires an analysis of Sentence Two-joint tortfeasors suspension.

Sentence Two-Joint Tortfeasors Suspension

Sentence Two comes into play when, as here, there are multiple tortfeasors. See Maestri v. Pazos , 15-9, p. 1 (La. App. 5 Cir. 5/28/15), 171 So.3d 369, 374 (Liljeberg, J., dissenting) (observing that "this matter involves joint tortfeasors, which requires the application of the second sentence [of the statute]"); see also Smithson , supra . Construing the language of Sentence Two, the Louisiana Supreme Court has observed as follow:

The second sentence of La. R.S. 40:1299.47(A)(2)(a) [now La. R.S. 40:1231.8(A)(2)(a) ] ... gives guidance in the situation where there are claims against multiple tortfeasors, for which there may be different time limitations for filing suit. Where suit is filed against alleged joint and solidary obligors, or joint tortfeasors, the legislature indicates its preference in this second sentence for the same time limitation to be applied to all of the defendants. In that situation, the legislature provides that the filing of a request for review of a malpractice claim against the health care provider, qualified or not qualified, shall suspend the running of prescription for filing suit "to the same extent that prescription is suspended against the party or parties that are the subject of the request for review." This legislation produces the imminently practical result that allegations of joint or concurrent negligence may be determined at the same time.

Milbert v. Answering Bureau, Inc. , 13-0022 (La. 6/28/13), 120 So.3d 678, 685-86.

The applicability of Sentence Two to suspend prescription in the context of a joint request for a medical review panel similar to this one-when the private panel request was not perfected due to the failure to timely pay the filing fee, but the state panel request was timely perfected-was addressed in Smithson , supra .

In Smithson , the claimant filed a request for a medical review panel naming three private defendants and two state defendants. Although the claimant timely paid the filing fees for the two state defendants, the claimant failed to pay the $ 300 fee for the three private defendants. As a result, the PCF notified the claimant that his request as to the private defendants was invalid and without effect. Thereafter, the claimant filed a supplemental and amending request, reasserting his claims against the private defendants and paying the filing fee associated with that request.

In response, the private defendants each filed an exception of prescription. They contended that the claimant's initial request for a medical review panel to review the claims against them was rendered invalid and without effect and did not suspend the time within which suit must be instituted, because the claimant failed to pay the $ 300 filing fee or to provide evidence that it should be waived within the applicable 45-day period. They further contended that even though the claimant paid the filing fee with his supplemental and amending request, this request was not timely because it was filed over a year from the date of the alleged malpractice. Agreeing with the private defendants, the trial court granted the exceptions.

Reversing, the appellate court in Smithson first noted that "[t]his court and others have recently reviewed a number of cases involving the exception of prescription based on a medical malpractice claimant's failure to submit filing fees or evidence of waiver thereof within 45 days from the confirmation of receipt of the request for review." Smithson , 07-2262, p. 7, 991 So.2d at 1080 (collecting cases). The line of cases, the appellate court noted, would dictate a finding that the claimant's claim against the private defendants was prescribed if the facts were the same as in those cases. The appellate court, however, found the facts before it distinguishable, emphasizing that "[the claimant's] case has an additional factual circumstance, in that his request for review included claims against both state defendants and private defendants"-a joint request. Smithson , 07-2262, p. 8, 991 So.2d at 1080.

Construing Sentence Two as applicable to suspend prescription, the appellate court in Smithson reasoned as follows:

The statute is clear and unambiguous. According to LSA-R.S. 40:1299.39.1(A)(2)(a) [now La. R.S. 40:1237.2(A)(2)(a) ], the filing of a request for review of a claim against a state health care provider "shall suspend the running of prescription against all joint or solidary obligors , ... to the same extent that prescription is suspended against the party or parties that are [the] subject of the request for review." (Emphasis added).... At this stage of the proceedings, it seems unlikely that the allegations would result in a finding of solidary liability among the state and private defendants. However, Smithson claims that his damages resulting from the loss of his eye were caused by two or more persons, including state and private defendants. Therefore, joint liability has clearly been alleged. This triggers the suspension of the running of prescription against all joint obligors, as set forth in LSA-R.S. 40:1299.39.1(A)(2)(a). Accordingly, Smithson's filing of a request for review against the state defendants suspended the running of prescription against the private defendants, unless that filing was deemed invalid and without effect. The evidence shows that the filing against the state defendants was valid, because the filing fee for that claim was paid timely. Therefore, Smithson's claims against the private defendants were not prescribed.

Smithson , 07-2262, pp. 8-9, 991 So.2d at 1080-81 (internal footnote omitted).

The Downing Family contends that this court should follow the holding in Smithson . The Private Providers counter that this court should find Smithson factually distinguishable and legally incorrect. Factually, the Private Providers point out that the claimant in Smithson filed a supplemental and amending request against the private defendants; whereas, the Downing Family failed to file a supplemental and amending request against the private defendants. This distinction, however, is not significant. The issue here is a legal one of statutory construction. Simply stated, the issue is whether a supplemental and amending request, if filed (as it was in Smithson ), would be considered timely by virtue of applying Sentence Two-joint tortfeasor suspension-in this context.

Legally, the Private Providers contend that Smithson erroneously holds that a request for review against state providers under the MLSSA suspends prescription against private providers under the MMA despite the claimant's failure to pay the required filling fee to perfect that request. They emphasize that the statute provides that the filing of a "claim"-a complaint before a medical review panel-suspends the prescriptive period for filing a "suit"-a petition in a trial court. See Nash v. Brown , 04-751, p. 4 (La. App. 3 Cir. 3/16/05), 898 So.2d 619, 622 (emphasis supplied) (observing that "a medical review panel must review the claim before suit is commenced"). The Private Providers contend that Smithson , by failing to respect this distinction, erroneously eviscerates the filing fee requirement for suspending prescription.

The Private Providers' construction of the statute as precluding the application of Sentence Two-joint tortfeasor suspension-in this context to extend the time to file (or to re-file) a "claim" before a medical review panel would result in a finding that the Downing Family's claims against them are prescribed. The contrary construction of the statute, as in Smithson , would preserve the Downing Family's claims, assuming the Private Providers are joint tortfeasors with the State Providers.

Adopting the construction in Smithson is consistent with the well-settled rule that a prescription statute "is strictly construed against prescription and in favor of the obligation sought to be extinguished by it." Wimberly v. Gatch , 635 So.2d 206, 211 (La. 1994) (collecting cases); In re Med. Review Panel Proceedings of Glover , 17-201, p. 8 (La. App. 5 Cir. 10/25/17), 229 So.3d 655, 662 (reasoning that "[b]ecause there are two possible interpretations, we must adopt the one which favors maintaining the action as opposed to barring it"). Stated otherwise, "[s]tatutes providing for prescriptive periods are to be strictly construed in favor of maintaining a cause of action." David v. Our Lady of the Lake Hosp., Inc. , 02-2675, p. 12 (La. 7/2/03), 849 So.2d 38, 47 (citing Lima v. Schmidt , 595 So.2d 624, 629 (La. 1992) ). For these reasons, we adopt the construction of the statute set forth in Smithson .

Pursuant to Sentence Two, as construed in Smithson , the Downing Family's timely perfecting of a request for a medical review panel as to the State Providers suspended prescription as to all joint tortfeasors. The prescription issue here turns on whether the Private Providers are joint tortfeasors with the State Providers. The Downing Family's Complaint alleges that all of the named defendants-the State Providers and the Private Providers-are joint tortfeasors who treated Ms. Downing on July 13, 2014.

When a peremptory exception is pleaded before trial, evidence is admissible to support or to controvert the exception. La. C.C.P. art. 931. "[I]n the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true." Duckworth v. Louisiana Farm Bureau Mut. Ins. Co. , 11-2835, p. 26 (La. 11/2/12), 125 So.3d 1057, 1072. Evidence was introduced at the hearing on the exception of prescription, albeit not on the issue of joint tortfeasor suspension. The absence of evidence on this issue is attributable to Downing Family's failure to raise this issue in the trial court.

Because joint tortfeasor suspension under Sentence Two was not raised in the trial court, the issue of whether the Private Providers are joint tortfeasors with the State Providers was not resolved.

When, as here, the issue of joint liability is unresolved, the granting of an exception of prescription is premature. See Correro v. Caldwell , 49,778, p. 10 (La. App. 2 Cir. 6/3/15), 166 So.3d 442, 447-48 (citing Etienne v. National Auto. Ins. Co. , 99-2610 (La. 4/25/00), 759 So.2d 51 ).

Ordinarily, a trial court has discretion to refer an exception of prescription to the merits. See La. C.C.P. art. 929(B) (providing that "[i]f the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case"). When, however, a medical provider invokes La. R.S. 40:1231.8(B)(2)(a) to file a peremptory exception of prescription in the pre-petition context of a pending panel proceeding, it is inappropriate for the trial court to refer the exception to the merits. In re Med. Review Panel for Claim of Dede , 98-0830 (La. App. 4 Cir. 5/20/98), 713 So.2d 794. In that context, "a ruling on an exception of prescription should occur prior to the completion of the medical review panel since the exception, if meritorious, would dissolve the medical review panel." Id. , 98-0830, p. 2 (La. App. 4 Cir. 5/20/98), 713 So.2d at 796. In order to resolve the issue of joint tortfeasor suspension presented here, we find it appropriate, as suggested by one of the Private Providers, to remand the prescription exception to the trial court for an evidentiary hearing.

DECREE

For the foregoing reasons, the trial court's judgment granting the Private Providers' peremptory exception of prescription and dissolving the pending medical review panel is reversed; this matter is remanded.

REVERSED AND REMANDED.

      Because no substantive changes have been made to any sections of the MMA and the MLSSA relevant here, we refer in this opinion to the currently codified versions of the MMA and MLSSA. See Skinner-Smith v. Sec'y of Health & Human Servs. , 141 Fed.Cl. 348, 351, n. 2 (2018) (citing In re Tillman , 15-1114, p. 1, n. 1 (La. 3/15/16), 187 So.3d 445, 446 ); and Matranga v. Parish Anesthesia of Jefferson, LLC , 17-73, pp. 8-9 (La. App. 5 Cir. 8/29/18), 254 So.3d 1238, 1244-45 ) (observing that "[b]ecause no substantive changes have been made to sections of the MMA relevant to the above-captioned case, this court refers to the currently codified MMA").

      Given the procedural posture of this case, we accept as true (for purposes of this appeal only) the statement of the facts in the request for review filed by the Downing Family.

      Her injuries from the accident included a closed liver laceration, an adrenal gland laceration, a leg laceration, and multiple rib fractures.

      The five defendants covered under the MLSSA were Jennifer Mooney; Blair Barton; Willard Mosler, Jr.; Allen Marr; and Samuel Victoria, Jr. (collectively the "State Providers").

      These two providers were listed as "R. Tanner" and "Dr. Tieman." Although the PCF requested that the full names of these two providers be provided within 45 days, these two providers were not properly identified. Thus, they were dismissed.

      After a request for a medical review panel is filed, the parties may request that the clerk of the district court assign a docket number to a contemplated medical malpractice proceeding in order to conduct discovery. See La. R.S. 40:1237.2(D)(4) (providing that "[u]pon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection or copying or both"). According to the petition filed to institute the CDC Case, it was filed by "the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, on behalf of LSU Health Sciences Center, Jennifer Mooney, M.D., Willard Warren Mosier, Jr., M.D., Alan Bland Marr, M.D., and Samuel E, Victoria, Jr., M.D." The State Provider not listed in the petition is Dr. Barton.

      According to the parties, Interim LSU was privatized in June 2013, which was before the dates of alleged malpractice.

      See La. R.S. 40:1231.8(B)(2)(a) (providing that "[a] health care provider, against whom a claim has been filed under the provisions of this Part, may raise ... any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel").

      Although the statute provides for a waiver of the filing fee in certain situations, it is undisputed that none of those exceptions applies here.

      See La. R.S. 40:1231.8(B)(2)(b) (providing that "[i]f the court finds that the claim had prescribed or otherwise was perempted prior to being filed, the panel, if established, shall be dissolved upon the judgment becoming final").

      Ordinarily, the party pleading prescription bears the burden of proof at the trial of the peremptory exception. Rando v. Anco Insulations, Inc. , 08-1163, 08-1169, p. 20 (La. 5/22/99), 16 So.3d 1065, 1082 (citing Carter v. Haygood , 04-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267 ). But, "[i]f prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed." Id.

      La. R.S. 9:5628(A) provides as follows:
      No action for damages for injury or death against any physician, ... nurse, [or] ... hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, 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.

      See also Tillman , 15-1114, p. 8, 187 So.3d at 450 (observing that "the legislature, in enacting the MMA, took special cognizance of the need to fully protect plaintiffs from the detrimental effect of liberative prescription, allowing for suspension of the time within which suit must be filed during the pendency of the review process and for ninety days following notification to the claimant or his or her attorney of the panel opinion"); Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 21.03[7] (2d ed. 2018) (observing that "[s]pecial provisions accommodate the need for pre-suit screening of a claim against a [qualified health care provider]").

      The provisions of these two special suspension statutes are virtually verbatim. For ease of discussion, we refer to the provision in the MMA.

      See also Ferrara v. Starmed Staffing, LP , 10-0589, p. 3 (La. App. 4 Cir. 10/6/10), 50 So.3d 861, 864 (citing LeBreton v. Rabito , 97-2221, p. 9 (La. 7/8/98), 714 So.2d 1226, 1230 ) (observing that "the filing of a medical malpractice claim with a medical review panel triggers the suspension of prescription specially provided by the MMA, rather than the interruption of the liberative prescriptive period generally provided in the Civil Code").

      The first sentence provides as follows:
      The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of a health care provider against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part.
      La. R.S. 40:1231.8(A)(2)(a).

      The second sentence provides as follows:
      The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.
      La. R.S. 40:1231.8(A)(2)(a). This statute contains a third sentence that is not pertinent here; the third sentence provides as follows: "[f]iling a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running of prescription. All requests for review of a malpractice claim identifying additional health care providers shall also be filed with the division of administration." Id.

      Summarizing the PCF's duties regarding issuing a confirmation of receipt, the court in Brown v. Patient Comp. Fund Oversight Bd ., 17-0318, pp. 7-8 (La. App. 1 Cir. 1/5/18), 241 So.3d 1167, 1173, observed:
      Louisiana Revised Statute 40:1299.47(A) [now La. R.S. 40:1231.8(A)(3)(a)-(c) ] outlines the PCF's affirmative and mandatory ministerial duties regarding notification after it receives a request for review. The clear and unambiguous statutory language imposes on the PCF the following ministerial duties owed to the claimant regarding requests for review: (1) within fifteen days of receipt, the PCF shall send notification to the claimant by certified mail, return receipt requested, confirming receipt of the claim and the qualifications of the health care providers; (2) in the confirmation, the PCF shall also give notice of the amount of the filing fee due to the PCF and the time frame within which the fee is due to the PCF and notifying the claimant that failure to timely pay the filing fee due will render the request for review "invalid and without effect"; (3) in the event that the notification by certified mail, return receipt requested is not claimed or is returned undeliverable, the PCF shall provide the statutorily required notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail; and (4) notify all parties when the required filing fee is received by the PCF and whether the claimant has timely or not timely paid the required filing fee.

      See also In re Ouder , 07-1266, p. 12 (La. App. 1 Cir. 5/2/08), 991 So.2d 58, 66 (observing that "[t]he statute could not be more clear: failure to pay the filing fees within the allotted time period shall render the request for review of a malpractice claim invalid and without effect, and such an invalid request shall not suspend the time within which suit must be instituted"); In re Latiolais , 09-1186, p. 4 (La. App. 3 Cir. 3/24/10), 33 So.3d 455, 458 (observing that "[n]o ambiguity can be found in this statute" imposing a 45-day requirement to pay the filing fee); In re Rideaux , 12-1096 (La. App. 3 Cir. 3/6/13), 110 So.3d 292 (unpub .), 2013 WL 811628 (observing that "[d]espite the clear and unequivocal notice, Rideaux failed to pay the filing fee prior to the deadline"); see also Smart v. W. Jefferson Med. Ctr ., 09-366, p. 10 (La. App. 5 Cir. 11/24/09), 28 So.3d 1119, 1125 (observing that the Legislature instituted the filing fee requirement to serve two purposes: (i) to offset the escalating costs of processing panel requests and (ii) to encourage claimants to seriously review the matter before naming a healthcare provider).

      When, as here, a joint request for both a state and a private panel is made, both the MMA and the MLSSA provide that a joint medical review panel shall be convened unless the parties agree otherwise. See La. R.S. 40:1231.10 (the MMA); La. R.S. 40:1237.3 (the MLSSA). A joint panel is thus the default process that results when, as here, there is no agreement to the contrary. This case, however, never reached the joint panel stage. Instead, the PCF sent out a notification that the panel request was invalid and without effect; and the Private Providers each filed the peremptory exceptions of prescription at issue here.
      Nonetheless, we note that the record on appeal contains two references to the consolidation of the panel requests. First, in the State Providers' petition in the CDC Case, which was filed on October 13, 2015, the State Providers averred: "[a] Medical Review Panel proceeding was instituted against movers herein pursuant to LSA-R.S. 40:1237.1, et seq ., and is pending with the Division of Administration in the matter of 15 MR 003, consolidated with PCF 2015-00753." Second, in the State Providers' motion to extend the medical review panel filed in the CDC Case, they made the same averment. The only other mention of a joint panel in the record an oral statement by the Downing Family's attorney at the hearing on the exceptions; their attorney argued that, given the statutory requirement of a joint panel, the "payments made to both the DOA and PCF should be considered together" and that, collectively, $ 800 in filing fees was paid. As discussed elsewhere in this opinion, the Downing Family attorney's suggestion that the filing fees paid to the DOA should be considered in determining whether the full filing fee was paid to the PCF is unpersuasive.

      For ease of discussion, reference to the agency administering the claims against the state defendants is made to the DOA. By statute, however, claims against state providers under the MLSSA are administered by the Commissioner. See La. R.S. 40:1237.2(A)(1)(a) (providing that claims against the state defendants "shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner").

      As to these two providers, the letter advised that "[f]ailure to submit the requested information within 45 days of the postmark of this notice shall render the panel request as to R. Tanner and Dr. Tieman invalid." As noted elsewhere in this opinion, the two providers as to whom incomplete names were given have been dismissed.

      The Downing Family included with the Complaint a check in the amount of $ 100 for the filing fee and indicated that "[a]ny additional filing fee will be forwarded upon notice of qualified defendants."

      The September 1, 2015 letter was from the Commissioner and written on DOA letterhead.

      See La. R.S. 40:1231.8(A)(6) (providing that "[i]n the event the board receives a filing fee that was not timely paid pursuant to Subparagraph (1)(c) of this Subsection, then the board shall return, or refund the amount of, the filing fee to the claimant within thirty days of the date the board receives the untimely filing fee").

      See also Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 21.03[7] (2d ed. 2018) (citing Smithson , supra , for the proposition that when "the state provider and the private medical provider are joint obligors the timely filing [of a request for review] against the state medical provider, which is valid because the filing fee is timely paid, suspends the running of prescription against the private medical provider").

      This court issued an order that the parties brief the issue of the impact, if any, on the prescription issue presented in this case of the holding in Smithson, supra .

      Contrary to the Private Providers' suggestion, Smithson did not hold that a claimant, in this context, is relieved of his or her obligation actually to pay the filing fee for the private defendants. The claimant in Smithson , as the Private Providers acknowledge, filed a supplemental and amended request and paid the filing fee for the private defendants. Indeed, the legislature requires a filing fee be paid, absent a waiver, for each qualified defendant. See La. R.S. 40:1231.8(A)(1)(g) (providing that "[t]he filing fee of one hundred dollars per named defendant qualified under this Part shall be applicable in the event that a claimant identifies additional qualified health care providers as defendants").

      " 'A joint tortfeasor is one whose conduct (whether intentional or negligent) combines with the conduct of another so as to cause injury to a third party.' " Milbert v. Answering Bureau, Inc. , 13-0022 (La. 6/28/13), 120 So.3d 678, 688 (quoting Greer v. Johnson , 37,655 p. 5 (La. App. 2 Cir. 9/24/03), 855 So.2d 898, 901 ). "The term 'joint tortfeasor' may be applied both to the situation where two or more persons are acting together in concert, or where '[t]he negligence of concurrent tortfeasors ... occurs or coalesces contemporaneously,' to produce an injury." Id. (footnote omitted).

      Given our resolution of this appeal on other grounds, we pretermit the Downing Family's arguments regarding the application of contra non valentem .


author: PER CURIAM.

text:
    Valencia DAURBIGNEY v. LIBERTY PERSONAL INSURANCE COMPANY and Kelly Watson
    18-929
    Court of Appeal of Louisiana, Third Circuit.
    May 9, 2019
    Jerome H. Moroux, Broussard & David, LLC, Post Office Box 3524, Lafayette, Louisiana 70502, (337) 232-9345, COUNSEL FOR PLAINTIFF/RELATOR: Valencia Daurbigney
    Bruce D. Beach, Law Offices of Keith S. Giardina, 9100 Bluebonnet Centre Boulevard, Suite 300, Baton Rouge, Louisiana 70809, COUNSEL FOR DEFENDANTS/RESPONDENTS: Liberty Personal Insurance Company, Kelly Watson
    Court composed of John E. Conery, Van H. Kyzar, and Jonathan W. Perry, Judges.
   PER CURIAM.

The tenor has changed in recent judicial elections. Now, special interest groups are pouring large sums of money into judicial campaigns, especially on the supreme court and appellate level, hoping that the candidate they are backing will side with their particular philosophy when deciding cases and issues before them. More to the point, special interest groups have now formed Political Action Committees (PACs) to raise large sums of money to support candidates the PAC perceives is more philosophically in tune with its goals and agenda.

In Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), the United States Supreme Court held that unions and corporations were "persons" under the First Amendment and therefore entitled to free speech which included spending money without limitations in elections. Hence, PACs are not subject to individual campaign finance limits on contributions and PAC contributions have become increasingly important.

The recent race for a seat on the Louisiana Supreme Court between two sitting judges, Judge Marilyn Castle on the trial court and Judge Jimmy Genovese on the appellate court, was especially contentious. Campaign ads in the print and broadcast media funded by special interest groups escalated, costing the respective candidates' campaigns large sums of money. Such a campaign ad is the focus of the case before us, only the ad was directed by a candidate not against her opponent and not even against the PAC supporting her opponent, but directed against specifically named lawyers who contributed to the PAC.

In the ad at issue, The Committee to Elect Judge Marilyn Castle, designed, authorized and ran an ad that specifically listed named lawyers who concentrate in the area of plaintiff personal injury litigation, claiming that her opponent's judicial impartiality had been compromised. The ad specifically named trial lawyers who "unethically" contributed large sums to his campaign, bypassing campaign finance limits on contributions by creating a special PAC to donate large sums to her opponent's campaign over and above campaign finance limits. PAC contributions, however, are clearly authorized by the Citizens United case and are neither unlawful nor unethical. In fact, public records of campaign financial reports, of which we take judicial notice, show that both campaigns received PAC contributions and/or PACs ran ads on their behalf. The ad in question stated in pertinent part:

SHOULD PERSONAL INJURY LAWYERS PICK OUR NEXT SUPREME COURT JUSTICE Or should you? Personal Injury Lawyers have contributed over $ 1,000,000 to Jimmy Genovese's campaign. Then, when ethics laws prevented them from giving more, 18 of the wealthiest of them poured another $ 945,000 into a PAC (Restore Our Coast ) created to promote Genovese's campaign.

It is significant to note that this particular campaign ad was run prominently in the Daily Advertiser, the Lafayette newspaper in Judge Castle's "home base," so to speak, on November 6, 2016, only two days before the election on November 8, 2016. As shown in the exhibit, the ad featured Judge Castle, pictured in color in her judicial robes, smiling and wearing a large cross, while it portrayed her opponent in dark tones, frowning with a sack of money symbol next to the names of the "wealthy" personal injury attorneys accused of trying to "Pick Our Next Supreme Court Justice."

The law firm of Broussard & David, plaintiff/relator's counsel, was the only Lafayette law firm specifically listed in the ad, although their contribution to the PAC in question had been made by a company they managed, 557 Jefferson Street, LLC, and not their law firm directly. It is also significant to note that the campaign ad was paid for directly by Judge Castle's campaign, not a competing PAC. Thus, as the candidate, Judge Castle was personally responsible for the content of the ad.

After a motion hearing had been set before Judge Castle in this case, the plaintiff/relator, through Broussard & David, timely filed a motion to recuse Judge Castle, stating the grounds articulated in La.Code Civ.P. art. 151(A)(4) applied. The Article provides, in pertinent part that, a judge of any court shall be recused when she "(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys ... to such an extent that [s]he would be unable to conduct fair and impartial proceedings." (Emphasis added.)

Recusal issues are difficult for everyone involved. Lawyers, for the most part, are reluctant to file such a motion unless the grounds are compelling, fearing such a motion will anger the trial judge and negatively influence the decision in the case at issue should recusal be denied, and perhaps future cases before the same judge. Judges have a difficult time granting such a motion, fearing that it would be tantamount to a public declaration that they cannot be fair or impartial. Recusal decisions are especially difficult for a judicial colleague assigned to hear a request for recusal of a fellow judge on the same bench.

In prior decisions of our courts, recusal motions have generally been regarded with disfavor, starting out with a strong presumption in favor of the judge sought to be recused. The moving party, under our past jurisprudence, would then have the heavy burden of proving the judge sought to be recused had "actual bias" if the only ground for recusal was bias under La.Code Civ.P. art. 151(A)(4).

How is an attorney seeking recusal on legitimate grounds in order to protect his client from the very real potential of judicial bias able to prove subjective "actual bias"? It is difficult, to say the least, and most lawyers simply will not try if the burden of proof is set so high, often at the expense of their clients.

In recent years, however, the United States Supreme Court has issued several opinions changing the initial inquiry from one of proof of actual specific bias on the part of the trial judge at issue to an objective standard. At least since Withrow v. Larkin , 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), Caperton v. A.T. Massey Coal Co., Inc . 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), and Rippo v. Baker , --- U.S. ----, 137 S.Ct. 905, 197 L.Ed.2d 167 (2017), the United States Supreme Court has held as a matter of constitutional law that the judge hearing the recusal motion must use an objective standard. The only constitutionally permissible inquiry to be applied at the recusal hearing is, "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' " Rippo , --- U.S. at ----, 137 S.Ct. 905 (emphasis added).

Does this mean there is no longer a presumption of fairness and impartially in favor of the judge sought to be recused? Perhaps not. But what is clear is that the burden of proof is not the same-no longer must actual, subjective bias be proven.

It is on this point that we find that our learned brother below assigned to hear the recusal motion was in error. It is clear from his reasons for ruling that he found that the plaintiff movers in the motion to recuse Judge Castle did not prove actual bias.

Using the objective test articulated by the U.S. Supreme Court, the question at issue now is: Does the tone and tenor of the ad, with Judge Castle's color picture in her judicial robes and cross, and her direct involvement in this campaign ad naming specific plaintiff personal injury attorneys, including Broussard & David, lead the reasonable person to conclude that, "Recusal is required when, objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' " Rippo , --- U.S. at ----, 137 S.Ct. 905 (quoting Withrow , 421 U.S. at 47, 95 S.Ct. 1456 ). This principle flows from the case of Withrow , 421 U.S. at 47, 95 S.Ct. 1456, which, quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), stated, "Not only is a biased decisionmaker constitutionally unacceptable but 'our system of law has always endeavored to prevent even the probability of unfairness .' " (Emphasis added.)

In LaCaze v. Louisiana , --- U.S. ----, 138 S.Ct. 60, 199 L.Ed.2d 1 (2017), the United States Supreme Court vacated the original decision in State v. LaCaze , 16-234 (La. 12/16/16), 208 So.3d 856, which denied recusal of the trial judge based on the application of the subjective actual bias standard, and remanded the case to the Louisiana Supreme Court in light of Rippo . Our supreme court "was instructed to consider whether the trial judge's recusal should have been required because 'objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' " State v. LaCaze , 16-234, p. 1 (La. 3/13/18), 239 So.3d 807, 809 (quoting Rippo , --- U.S. at ----, 137 S.Ct. 905 ), cert. denied , --- U.S. ----, 139 S.Ct. 321, 202 L.Ed.2d 218 (2018). The Louisiana Supreme Court on remand eventually found that based on the particular facts of that case, and using the Rippo objective standard, the trial judge's actions in that case were insufficient to warrant recusal. Id.

However, in State v. Daigle , 18-634, p. 1 (La. 4/30/18), 241 So.3d 999, 1000 (emphasis added) (citations omitted), our supreme court reiterated that under Rippo 's mandate to be applied in Louisiana courts, " 'evidence of actual bias is not necessary to require recusal .' In other words, recusal may be required as a constitutional safeguard against the risk of bias ...." Id. at 1000. In Daigle , 241 So.3d 999, the supreme court considered a trial judge's decision to deny recusal, which was affirmed by a panel of the Third Circuit, with one judge dissenting. See State v. Daigle , 18-318 (La.App. 3 Cir. 4/26/18) (an unpublished writ decision). Following application of the objective standard required by Rippo , the Louisiana Supreme Court reversed and recused the trial judge based on the facts of that case.

In this case, Judge Castle, for whatever reason, chose not to testify or issue any per curiam reasons for her decision not to recuse herself. She then promptly referred the recusal motion for random allotment to another judge on her court, who then conducted the hearing on the relator's motion to recuse Judge Castle.

Judge Thomas Duplantier was assigned to hear the recusal motion and specifically found at the close of the hearing:

Okay, So I find that there's not actual bias . I don't - Would I have said it? No. Do I think it's pleasant? No. Do I think it's sad that we have presidential, congressional, [s]tate, and judicial elections now that instead of looking at qualifications, we look at the easiest mud to sling that might affect somebody's vote? And I do think that those things were published in that ad, during that election, during that contentious moment of that election, which was throwing mud back and forth from people from Virginia and wherever else all those PAC's came, I don't know, but I don't believe it shows actual bias or the presumption for Judge Castle. And I'll deny your motion.

(Emphasis added.)

Error of Law

We find that the trial court's determination that "actual bias" was required for the recusal of Judge Castle from this case involving relator's counsel Broussard & David was an error of law, requiring the application of the de novo standard of review. We find the trial court failed to ask the question Rippo requires, whether objectively speaking, considering all the circumstances alleged, "the risk of bias was too high to be constitutionally tolerable." Rippo , --- U.S. at ----, 137 S.Ct. 905.

Reference to the Louisiana Code of Judicial Conduct is helpful in determining whether objectively speaking, the "risk of bias" is too high to be constitutionally tolerable. See Rippo , --- U.S. ----, 137 S.Ct. 905. In pertinent part, the Canons provide:

CANON 1
A Judge Shall Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code are to be construed and applied to further that objective.
CANON 2
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartially of the judiciary .
As used in this Code, "impartiality or impartial" denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.
CANON 3
A Judge Shall Perform the Duties of Office Impartially and Diligently
The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply:
A. Adjudicative Responsibilities.
(1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall be unswayed by partisan interest, public clamor, or fear of criticism.
....
C. Recusation. A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself.

(Emphasis added.)

The Constitution of the U.S. and this state give this client and every person a right to a fair trial before an impartial tribunal. See U.S. Const. amend. XIV ; La.Const. art. 1, § 16. In the case of State ex. rel. Attorney General v. Lazarus , 1 So. 361, 376 (1887), our supreme court commented on the need for "able, conscientious and inapproachable judges" and, quoting the first chief justice of Louisiana, stated, "All those who minister in the temple of justice, from the highest to the lowest, should be above reproach and suspicion. None should serve at its altar whose conduct is at variance with his obligations."

The question really is not whether Judge Castle will tilt her ruling against the client because she still may be resentful of Broussard & David's financial support of her opponent through a PAC. One would like to believe that Judge Castle, who is reputed to be an honest, hardworking and conscientious trial judge, would try to do her best to decide the issues in the Valencia Daurbigney case fairly and impartially. However, under the recent jurisprudential standards on recusals, no "actual bias " need be proven. Withrow , 421 U.S. at 47, 95 S.Ct. 1456, Caperton , 556 U.S. at 889, 129 S.Ct. 2252 ; Rippo , 137 S.Ct. at 907 ; LaCaze, 239 So.3d at 809 ; and Daigle , 241 So.3d at 999-1000.

The trial judge hearing the recusal motion noted that he personally felt the motion was "disingenuous," noting that it was filed almost two years after the election and after the suit had been pending for over two years. He recounted a personal experience wherein an attorney who had allegedly run a negative ad against him later had a case in his court and he elected not to recuse. While we understand the trial judge's discomfort in hearing this motion and his recounting his own experiences when actual bias was the standard, proof of actual bias is no longer the standard. We need not determine whether there was actual bias, as the objective standards implementing the Due Process Clause do not require proof of actual bias. As the Supreme Court in Caperton states, "the question is whether, 'under a realistic appraisal of psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.' " Caperton, 556 U.S. 868, 129 S.Ct. at 2255 (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456 ).

Counsel for defendant/respondent cites to ten other cases assigned to Judge Castle in which Broussard & David are involved where no recusal motion has been filed. However, there is nothing in the record to show that any hearings were pending in any of these cases in order to trigger the necessity for filing such a motion. In fact, La.Code Civ.P. art. 154 mandates that such a "motion shall be filed prior to trial or hearing[,]" as was done in this case. The vast majority of all civil cases are resolved prior to trial or contradictory hearing and there is no necessity for a recusal in those cases as there is "no trial or hearing" pending.

According to plaintiff's counsel, this is the first time since the November 2016 election that they have an actual issue set for hearing on the docket in a case to be decided by Judge Castle, and, hence, is the first time they were required to present a recusal motion pursuant to La.Code Civ.P. art. 154.

The gravamen of the recusal motion is not that Broussard & David contributed to a PAC supporting Judge Castle's opponent and the defendant seeks recusal on that basis. Rather, the problem in this case is that the ad in question did not directly attack Judge Castle's opponent, but instead singled out specific lawyers who concentrate in the area of plaintiff personal injury litigation, including Broussard & David, for allegedly unethically creating a PAC specifically for the purpose of bypassing campaign limits on contributions to a judicial campaign in an "unethical attempt" to "Pick Our Next Supreme Court Justice." As previously noted, the contributions by PACs are neither illegal nor unethical. The ad in question chills and challenges the legal ability of lawyers or anyone to contribute to judicial campaigns through PACs under the First Amendment, contributions lawful since Citizens United and its progeny were decided.

The importance of an impartial judiciary and one that is perceived to be impartial cannot be overstated. As the U.S. Supreme Court noted in Caperton , 556 U.S. at 885, 129 S.Ct. 2252 (emphasis added) (quoting Tumey v. State of Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927) ), "Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true.' "

Public trust and confidence in the judiciary is already suffering. Looking at this case objectively, given the optics, the tone, timing and wording of the ad, it is implausible that this client, or any reasonable client under the circumstances, could have trust and confidence in the impartiality of the trial judge when the sitting trial judge hearing her case has published such an ad directly naming and attacking her attorneys.

CONCLUSION

We find that "objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' " Rippo, --- U.S. at ----, 137 S.Ct. 905. See also Daigle , 241 So.3d 999 ; LaCaze , 239 So.3d 807. In keeping with the spirit of the applicable Canons of the Code of Judicial Conduct and the controlling jurisprudence, we find that recusal of Judge Castle is required under the unique circumstances of this case.

We grant the writ, make it peremptory, reverse the ruling of the trial court, order recusal of Judge Marilyn Castle, and remand the matter to the Lafayette Parish Clerk of Court to randomly allot this case to another judge serving that judicial district in accordance with that court's rules and procedures.

WRIT GRANTED AND MADE PEREMPTORY; REMANDED WITH INSTRUCTIONS.

      This court is allowed to take judicial notice of governmental websites. See La.Code Evid. art. 201. See also Mendoza v. Mendoza, 17-70 (La.App. 4 Cir. 6/6/18), 249 So.3d 67, writ denied , 18-1138 (La. 8/31/18), 251 So.3d 1083 ; State v. Carpenter , 00-436 (La.App. 3 Cir. 10/18/00), 772 So.2d 200, writ denied , 00-3152 (La. 1/25/02), 806 So.2d 665.

      A color copy of the ad is attached to plaintiff/relator's original writ application and was filed as an exhibit in the trial court.

      Broussard & David claimed that Judge Castle's campaign went to extra lengths to research and highlight their interest in 557 Jefferson Street, LLC, allegedly further evidencing actual bias against their law firm. They further claim that almost all of their clients come from the Lafayette Parish area, the target zone for the Lafayette newspaper where the ad was run and will greatly impair their ability to obtain a fair trial for their clients in the cases assigned to Judge Castle.

      Louisiana Code of Judicial Conduct, Canon 7(B)(2) provides, "A Judge or Judicial Candidate Shall: (2) review and approve the content of all political advertisements produced by the judge or judicial candidate or his or her campaign committee, as authorized by Canon 7D, before their dissemination[.]"
      Louisiana Code of Judicial Conduct, Canon 7(D)(1) states in pertinent part, "Campaign committees may conduct campaigns for the judge or judicial candidate through media advertisements ... not prohibited by law or the provisions of this Code."

      See, e.g. , Gaspard v. Horace Mann Ins. Co. , 17-1140 (La.App. 3 Cir. 5/9/18), 247 So.3d 778, writ denied , 18-897 (La. 9/28/18), 252 So.3d 931 ; In Re Eleanor Pierce (Marshall) Stevens Living Trust , 17-111 (La.App. 3 Cir. 10/4/17), 229 So.3d 36, writ denied , 17-1868 (La. 1/29/18), 233 So.3d 613 ; Slaughter v. Board of Sup'rs of Southern Univ ., 10-1114 (La.App. 1 Cir. 8/2/11), 76 So.3d. 465, writ denied , 11-2112 (La. 1/13/12), 77 So.3d 970.

      The relator's Motion To Recuse Per Louisiana Code Of Civil Procedure Article 151(A)(4) was filed on August 1, 2018. The hearing on the realtor's motion to recuse was held on September 17, 2018.

      The record reflects the trial court's misunderstanding of the constitutional standard for recusal:
      Now, the old days of me saying, well, I'm going to recuse myself because there might be an appearance of impropriety, we had a judge on this court that did it quite frequently, and we had an issue in our own system where we began doing something internally different. I happened to sit on a case a year ago, a jury trial, with ... my opponent. If you think that one was contentious - I think you probably weren't around - but if you thought Judge Genovese and Judge Castle's was contentious, you should have sat in my seat. I recused myself for one (1) year, but after that I didn't anymore.... and I don't think in all the things you talk about, what Judge Castle's campaign did, what her - her commercial said, and all those, that's not actual bias . (Emphasis added.)