Opinion
DOCKET NUMBER 2023 CA 0691
12-27-2023
Laureen OLSON v. LOUISIANA PATIENT’S COMPENSATION FUND OVERSIGHT BOARD
Stephanie B. Laborde, Benjamin M. Chapman, David A. Woolridge, Brent J. Bourgeois, Baton Rouge, Louisiana, Attorneys for Defendant-Appellant, Louisiana Patient’s Compensation Fund Oversight Board Dennis J. Phayer, Metairie, Louisiana, J. Lomax Jordan, Jr., Lafayette, Louisiana, Attorney for Plaintiff-Appellee, Laureen Olson
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT, SECTION 24, IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, DOCKET NUMBER 652921, HONORABLE DONALD R. JOHNSON, JUDGE PRESIDING
Stephanie B. Laborde, Benjamin M. Chapman, David A. Woolridge, Brent J. Bourgeois, Baton Rouge, Louisiana, Attorneys for Defendant-Appellant, Louisiana Patient’s Compensation Fund Oversight Board
Dennis J. Phayer, Metairie, Louisiana, J. Lomax Jordan, Jr., Lafayette, Louisiana, Attorney for Plaintiff-Appellee, Laureen Olson
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
GREENE, J.
2In this appeal, the Louisiana Patient’s Compensation Fund Oversight Board, and certain board members in their official capacities, Patrick C. Breaux, M.D., Clark R. Cosse’ III, Vincent A. Culotta, Jr., M.D., Manuel R. DePascual, Jr., Joseph A. Donchess, Christopher M. Foret, M.D., Kent C. Guidry, James E. Hritz, and Lesley A. Meng (collectively, PCFOB), appeal a Nineteenth Judicial District Court’s (19th JDC) order dismissing Laureen Olson’s suit against the PCFOB, without prejudice, and transferring the suit to the Fifteenth Judicial District Court (15th JDC). After review, we vacate the order and remand.
FACTUAL AND PROCEDURAL HISTORY
In September 2016, Ms. Olson settled her consolidated medical malpractice-tort suits against a physician, his professional medical corporation, and his insurer in the 15th JDC, reserving her right to assert her claim for damages in excess of the settlement amount against the Patient’s Compensation Fund (PCF). See generally Olson v. Toce, 2017-36 (La. App. 3 Cir. 6/7/17), 222 So.3d 775. She then filed suit against the PCF and the PCFOB in the 19th JDC for: (1) damages in excess of the settlement amount (excess damages claim) and (2) damages for the PCFOB’s alleged failure to promptly and fairly settle her malpractice claim (administrative damages claim). In a May 17, 2019 judgment, the 19th JDC dismissed some of Ms. Olson’s claims pursuant to the PCFOB’s exception of prescription. In an October 24, 2019 judgment, the 19th JDC dismissed some of Ms. Olson’s claims pursuant to the PCFOB’s exception of no cause of action. Ms. Olson appealed both judgments, but this Court ultimately dismissed both appeals, because neither judgment clearly identified which claims were dismissed; thus, neither constituted a valid final judgment. See Olson v. Louisiana Patient’s Compensation Oversight Bd., 2019-1300 (La. App. 1 Cir. 6/26/20), 307 So.3d 1083, 1086; Olson v. Louisiana Patients Compensation Fund Oversight Bd., 2021-0108 (La. App. 1 Cir. 5/27/21) (unpublished action).
If the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a medical malpractice claim, and the claimant seeks an amount in excess of the settlement, he may file a claim for the excess against the Patient’s Compensation Fund, following the procedure set forth in La. R.S. 40:1231.4(C).
Ms. Olson also named the physician and his professional medical corporation as nominal defendants.
After Ms. Olson voluntarily dismissed her 15th JDC suit in January 2019, and during the pendency of her 19th JDC suit, Ms. Olson filed another suit (in May 2019) against the 3PCF, the PCFOB, and two PCFOB officers in federal district court. The federal district court concluded Ms. Olson failed to state a claim for excess damages or for administrative damages against the defendants and dismissed her suit with prejudice. In December 2020, the United States Fifth Circuit Court of Appeals affirmed the federal district court’s decision. See Olson v. Schnauder, 841 Fed. App’x 637, 639 (5th Cir. 2020) (per curiam).
At some point, Ms. Olson moved to Tennessee; her federal suit was based on diversity jurisdiction. In the federal complaint, Ms. Olson apparently named the then-sitting Patient’s Compensation Oversight Board members as defendants in place of those board members named in the 19th JDC suit. See Olson v. Schnauder, 841 Fed. App’x 637, 638 (5th Cir, 2020) (per curiam).
During the pendency of her 19th JDC and federal suits, Ms. Olson filed another suit (in January 2020) in the 15th JDC under Docket Number 2020-0180. The 15th JDC dismissed Ms. Olson's suit based on lis pendens and stayed proceedings pending outcome of the federal court suit. The Third Circuit Court of Appeal reversed the 15th JDC’s judgment and remanded the matter for further proceedings. Olson v. Louisiana Patient’s Compensation Fund Oversight Bd., 21-637 (La. App. 3 Cir. 6/8/22), 344 So.3d 67, 71.
Based on the federal Fifth Circuit’s decision, the PCFOB filed an exception of res judicata in the 19th JDC, seeking dismissal of Ms. Olson’s 19th JDC suit in its entirety. In an October 27, 2021 judgment, the 19th JDC denied the PCFOB’s res judicata exception. This Court declined to consider and then denied the PCFOB’s writ applications challenging the October 27, 2021 judgment. See Olson v. Louisiana Patient’s Compensation Oversight Bd., 2021-1507 (La. App. 1 Cir. 3/14/22), 2022 WL 766502, and 2022-0381 (La. App. 1 Cir. 6/21/22), 2022 WL 2231416. By cover letter dated August 5, 2022, the PCFOB sent a proposed Judgment of Dismissal to the 19th JDC, positing that the Court’s two prior judgments, dated May 17 and October 24, 2019, had dismissed all of Ms. Olson’s claims against the PCFOB and there were no pending unadjudicated claims. The PCFOB admitted that Ms. Olson’s counsel opposed the proposed Judgment of Dismissal on multiple grounds. The 19th JDC did not sign the proposed Judgment of Dismissal. Rather, on August 30, 2022, the 19th JDC signed a judgment granting the PCFOB’s previously-denied res judicata exception and declaring that all of Ms. Olson’s claims were dismissed with prejudice. The PCFOB filed a motion for new trial asking the 19th JDC to vacate the August 30th judgment (contending the judgment was erroneously based on the res judicata exception the court had already denied) and to sign a new judgment that instead dismissed Ms. Olson’s suit in its entirety on the basis that the earlier May 17 and October 24, 2019 judgments had dismissed all of her claims.
4The 19th JDC issued an order setting a hearing on the PCFOB’s motion for new trial for January 9, 2023. According to a January 9th minute entry, the 19th JDC granted a new trial at that hearing and notified the parties of an additional hearing on January 30, 2023. Also on January 9th, Ms. Olson filed a "Motion to Discontinue/Dismiss Without Prejudice Olson’s Original Petition and First Amended Petition for Damages and/or Alternatively, Motion to Transfer." Despite the pending January 30th hearing on the motion for new trial, on January 11, 2023, without a hearing, the 19th JDC signed an order: (1) dismissing Ms. Olson’s 19th JDC suit without prejudice, (2) reserving her right to prosecute her claims against the defendants in the 15th JDC, and (3) transferring the case to the 15th JDC "to the extent the causes of action set forth in [her first amended petition] would be properly before the [15th JDC] as previously determined in Olson v. Schnauder, 841 Fed. Appx. 637 and Olson v. La. Patient’s Comp. Fund Oversight Bd., 344 So.3d 67 (La. App. 3rd Cir. 2022)[.]"
On January 24, 2023, the trial court signed an Order memorializing its January 9th oral ruling. The Order granted the PCFOB’s motion for new trial and ordered that the August 30, 2022 judgment would "come before the Court for amendment and correction" at a January 30, 2023 hearing.
The PCFOB appeals from the January 11, 2023 Order. In three assignments of error, the PCFOB essentially contends this Court should reverse the January 11th Order, because the 19th JDC erred in signing it on an ex parte basis, without a hearing, and before the scheduled January 30, 2023 contradictory hearing on the PCFOB’s motion for new trial.
DISCUSSION
[1, 2] When a trial court grants a motion for new trial, the motion shall be assigned for hearing in accordance with the rules and practice of the court. La. C.C.P. art. 1977. After 5granting a new trial, the trial court errs in rendering a second judgment without reassigning the case for hearing as required by La. C.C.P. art. 1977. DiVincenti v. First Guaranty Bank, 481 So.2d 712, 713-14 (La. App. 1 Cir. 1985). See also Lafayette City-Parish Cons. Gov’t v. Bendel Partnership, 2022-432 (La. App. 3 Cir. 12/21/22), 362 So.3d 881, 894-95; Pickering v. Hibernia National Bank, 306 So.2d 469, 470-71 (La. App. 4 Cir. 1975). Thus, after the 19th JDC orally granted the PCFOB’s motion for new trial on January 9th, and set the motion for a contradictory hearing on January 30th, the 19th JDC could not then sign an order on January 11th, granting Ms. Olson’s January 9th motion ex parte, and dismissing and transferring her suit, before holding the previously-scheduled January 30th hearing.
Louisiana District Court Rules, Rule 9.8.
Exceptions and Motions, pertinently provides:
(a) Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, shall be accompanied by a proposed order requesting that the exception or motion be set for hearing. …
….
(c) Time between filing and hearing. In cases other than juvenile and family law proceedings, no hearing on an exception or motion will be scheduled until at least fifteen calendar days after filing. A party seeking to have an exception or motion heard less than fifteen days after filing shall show good cause and shall state in the exception or motion the reasons why an expedited hearing is necessary.
(d) Ex parte motions. Paragraphs (a) and
(b) do not apply to:
(1) unopposed motions;
(2) motions in which all affected parties have joined; or
(3) motions permitted by law or by these Rules to be decided ex parte.
[3] Further, notwithstanding the pending new trial hearing date, the 19th JDC also erred by ordering dismissal of Ms. Olson’s suit without prejudice. We acknowledge that a trial court has discretion to dismiss a plaintiff’s suit after an appearance by the defendant. See La. C.C.P. art. 1671 - comment (b). However, La. C.C.P. art. 1671 does not grant the trial court unbridled discretion to dismiss a suit. Oliver v. Davis, 1995-1841 (La. App. 1 Cir. 8/12/96), 679 So.2d 462, 464, writ denied, 1996-2267 (La. 11/15/96), 682 So.2d 773. A trial court cannot dismiss a suit without prejudice if substantive rights acquired by the defendant would thereby be lost or if the dismissal would deprive the defendant of a just defense. Id.; Nelson v. Windmill Nursery of Louisiana, L.L.C., 2004-2717 (La. App. 1 Cir. 9/23/05), 923 So.2d 715, 716. Also, under La. C.C.P. art. 963, if an order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. See Thibodaux v. Nixon, 2003-2502 (La. App. 1 Cir. 11/3/04), 897 So.2d 666, 668-69.
[4] Because the 19th JDC had already signed the August 30, 2022 judgment dismissing Ms. Olson’s claims with prejudice, its later January 11th Order dismissing Ms. Olson’s claims without prejudice clearly prejudiced the PCFOB’s substantive rights. Accord State ex rel. Dept of Soc. Serv. v. A.P., 2002-2372 (La. App. 1 Cir. 6/20/03), 858 So.2d 498, 503 (finding a change from "without prejudice" to "with prejudice" was a substantive change and directly affected the plaintiff’s rights); see also Allied World Assurance Co. (U.S.) Inc. v. Amedisys, Inc., 2022-0655 (La. App. 1 Cir. 8/12/22), 2022 WL 3336498, writ denied, 2022-01371 (La. 11/16/22), 349 So.3d 1003. That is, the dismissal "with prejudice" precluded Ms. Olson 6from further pursuing her claims against the PCFOB, whereas, the dismissal "without prejudice," if given effect, would afford Ms. Olson the opportunity to continue to pursue her claims against the PCFOB in the 15th JDC. See La. C.C.P. art. 1673. Further, Ms. Olson was not "clearly entitled" to an order dismissing her claims without prejudice and transferring them to the 15th JDC, because the August 30, 2022 judgment had already dismissed the claims with prejudice. Lastly, a transfer of Ms. Olson’s claims from the 19th JDC to the 15th JDC required supporting proof as required by the law governing change of venue, and such proof is absent here. See La. C.C.P. arts. 121-124. Thus, the 19th JDC violated La. C.C.P. art. 963 by granting Ms. Olson’s January 9th motion ex parte and without trying the motion contradictorily with the PCFOB.
CONCLUSION
For the above reasons, we conclude the Nineteenth Judicial District Court abused its discretion by dismissing Ms. Olson’s suit without prejudice and transferring it to the Fifteenth Judicial District Court, while the January 30, 2023 new trial hearing was pending on the previously-rendered August 30, 2022 judgment. We vacate the January 11, 2023 Order and remand this matter directing the trial court to reschedule the January 30, 2023 hearing to address the merits of the Patient’s Compensation Fund Oversight Board’s motion for new trial. We assess costs of the appeal to Laureen Olson.
VACATED AND REMANDED.