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discussing the trial court's ability to close the record and disregard evidence submitted beyond the scope of a continuance order
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No. 52,645-CA
06-05-2019
Beverly REED, Lisa Reed, Ricky Reed, Kent Reed, Patricia Anding, Kirby Reed, Larry Reed, Elijah Reed as the Surviving Children of Lela Kindle, Plaintiffs-Appellants v. RESTORATIVE HOME HEALTH CARE, LLC, Defendants-Appellees
The plaintiffs, Beverly Reed, Lisa Reed, Ricky Reed, Kent Reed, Patricia Anding, Kirby Reed, Larry Reed, and Elijah Reed (collectively referred to as "the plaintiffs"), appeal the trial court judgment which denied their motion to substitute original affidavit. For the following reasons, we reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Medical Review Panel
On April 5, 2015, the plaintiffs, as the surviving children of decedent Lela Kindle ("Ms. Kindle") filed a request for medical review panel against the following 7 qualified health care providers: Dr. Frank Sartor ("Dr. Sartor"); Dr. Donna Donald ("Dr. Donald"); Dr. Nilgun Frengell ("Dr. Frengell"); Dr. Priscilla Navarro ("Dr. Navarro"); Dr. Grant Dona ("Dr. Dona"), Dr. Charles Simmons ("Dr. Simmons"), and the St. Francis Medical Center ("St. Francis") or (collectively referred to as "the named defendants").
In their request, the plaintiffs alleged that Ms. Kindle suffered a severe injury and died as a result of the negligent care provided by the named defendants. On May 9, 2017, the medical review panel rendered a decision finding that the evidence presented does not support the conclusion that the named defendants failed to meet the applicable standard of care as charged in the complaint.
On April, 8, 2014, Ms. Kindle was admitted to St. Francis Medical Center because of the development of an ulcer on her foot. The ulcer was treated with medication, debridement, and other medical procedures. Following these procedures, Ms. Kindle's foot was wrapped and she was discharged to Restorative Home Health Care 6 days later on April 14, 2014. On April 24, 2014, Ms. Kindle was admitted to Glenwood Regional Medical Center where it was discovered that her foot had become infected and gangrenous. Laboratory analysis indicated that Ms. Kindle had also developed sepsis as a result of the infection of her foot. On May 6, 2014, Ms. Kindle died due to septic shock secondary to fungemia.
Suit for Damages
On June 1, 2015, the plaintiffs filed a suit for damages naming Restorative as the sole defendant. Restorative Home Health Care, LLC ("Restorative") was not named in the plaintiffs' medical review panel request because it did not meet the statutory requirements of a qualified health care provider. On August 24, 2017, the plaintiffs filed a first amending and supplemental petition to include the named defendants in their suit for damages against Restorative.
On November 6, 2017, Dr. Dona filed a motion for summary judgment ("MSJ") alleging that the plaintiffs failed to "identify any expert medical witness who they might present in support of their claims or any part of them," and are therefore without evidence essential to support their claim. In support of his motion for summary judgment, Dr. Dona attached a copy of the medical review panel's unanimous opinion. Two days later on November 8, 2017, a motion for summary judgment was filed on behalf of the defendants, Dr. Sartor, Dr. Donald, Dr. Frengell, and Dr. Navarro.
This MSJ was based on the same argument advanced in Dr. Dona's motion for summary judgment. Finally, on January 3, 2018, Restorative filed a motion summary judgment. Dr. Dona's motion for summary judgment was originally set for hearing on January 5, 2018; however, this hearing was continued because plaintiff's counsel was not timely served. The unopposed motion was granted and the matter was continued without a new hearing date. The defendants filed motions to re-fix the hearing date, and the trial court issued an order setting March 27, 2018, as the new hearing date for all the previously filed motions.
On March 12, 2018, the plaintiffs filed a motion to continue and incorporated oppositions to the defendants' motions for summary judgment. This motion to continue alleged both of the plaintiffs' attorneys had a conflicting trial in Baton Rouge on the March 27, 2018 hearing date. In support of their opposition, the plaintiffs attached the sworn, but unsigned expert affidavit of Dr. Christopher Davey ("Dr. Davey").
The defendants opposed the continuance. An informal telephone conference with Judge Sharp and all counsels of record took place on March 16, 2018, and the trial court granted the plaintiffs' motion to continue. All parties conferred with the trial court and agreed that the new date for the hearings on the motions for summary judgment would be May 22, 2018.
The trial court scheduled a formal telephone conference on March 19, 2018, to make a record of the granting of the continuance. Therein, all parties made arguments on the record. However, the plaintiffs' counsel advised the trial court that his scheduling conflict was resolved, but argued that a continuance was still warranted because the plaintiffs needed an additional opportunity for discovery. At the conclusion of the formal telephone conference, the trial judge took the matter under advisement. Subsequently, the next day on March 20, 2018, the trial court rescinded the continuance, ordered that all deadlines and cutoff dates associated with the March 27, 2018 hearing remain, and reserved the May 22, 2018 hearing date for oral arguments only.
On March 21, 2018, the plaintiffs' counsel also informed the trial court in his unrelated case in Baton Rouge that his need for a continuance therein had been resolved , and that court also rescinded its previous order continuing the case. On March 22, 2018, the plaintiffs' counsel sent a letter to Judge Sharp indicating that his conflict in the present case had arisen yet again, as the Baton Rouge trial was again scheduled for March 27, 2018. On March 23, 2018, the plaintiffs herein filed a motion for reconsideration/new trial motion to continue hearing date on motions for summary judgment, to which all defendants filed oppositions thereto.
The plaintiffs' counsel advised the trial court in Baton Rouge that he was having problems locating a witness for an unrelated trial scheduled on March 27, 2018, and the trial court issued an order continuing the trial. Subsequently, the plaintiffs' counsel resolved issues with the witness, and the trial court also rescinded its order granting a continuance for the trial scheduled on March 27, 2018.
During the MSJ hearing on March 27, 2018, neither the plaintiffs, nor their counsel, Mr. Simien, were present. Mr. Simien's absence was due to his conflicting trial in Baton Rouge. At the conclusion of the hearing, the trial court rendered a judgment in open court stating:
...[T]hat only those documents in support of the motions for summary judgment, in opposition to the motions for summary judgment, and any reply memoranda and objections timely filed and served in accordance with La. Code of Civil Procedure Article 966(B) prior to the March 27, 2018 hearing date shall be considered by the Court. In all further respects, the record for purposes of consideration of Defendants' Motions for Summary Judgment is closed.
The trial court judgment was filed on April 4, 2018, and the clerk's office sent notice of that judgment to all parties on April 19, 2018.
On May 7, 2018, exactly 15 days prior to the upcoming May 22, 2018 hearing, the plaintiffs' filed a motion to substitute original affidavit requesting that the original unsigned affidavit of Dr. Christopher Davey which had been filed in opposition to the defendants' motions for summary judgment be substituted for a properly executed copy. Counsel for the plaintiffs alleged that he noted that the original affidavit filed on March 12, 2018, did not bear the signature of the affiant Dr. Christopher Davey, and had been merely sworn before the notary. All defendants opposed the plaintiffs' motion to substitute original affidavit. Counsel for Dr. Dona sent the trial judge letters on both May 11 and 14, 2018, expressing his objection to the plaintiffs' motion. Defendants, Restorative and Dr. Sartor, filed oppositions to the plaintiffs' motion to substitute original affidavit.
The plaintiffs' counsel fax filed the motion to substitute original affidavit, and a hard copy of the motion was filed with the clerk's office on May 14, 2018.
At the MSJ hearing on May 22, 2018, the trial court sustained the defendants' objections and further denied the plaintiffs' motion to substitute original affidavit. The trial court granted summary judgment in favor of Dr. Dona, Dr. Sartor, and Restorative with oral reasons given on the record. The plaintiffs filed this instant appeal.
DISCUSSION
The central issue before this Court is whether the trial court erred in prohibiting the plaintiffs from submitting a substituted, signed copy of Dr. Christopher Davey's affidavit in support of their opposition exactly 15 days prior to the May 22, 2018 hearing on the defendants' motions for summary judgment.
Under La. C.C.P. 966(B)(2), unless extended by the court and agreed to by all of the parties any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than 15 days prior to the hearing on the motion. Id.
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Id. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. Id. The court shall consider all objections prior to rendering judgment. Id.
Unless otherwise agreed to by all of the parties and the court, for good cause shown , the court may order a continuance of the hearing. La. C.C.P. art. 966(C)(1)(2). (Emphasis added.) Additionally, District Court Rule 1.4 states:
An individual judge may, in the interest of justice and upon notice to all parties, permit deviations from these Rules in a particular proceeding. Any such deviation shall be noted on the record in open court in the presence of all parties or by written order filed into the record of the proceedings and mailed to all parties or their counsel of record.
It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. Howard v. Lee , 50,366 (La. App. 2 Cir. 1/13/16), 185 So. 3d 144. A denial of a motion for continuance will not be disturbed on appeal absent a showing of an abuse of discretion by the trial court. Davis v. European Motors , 51,522 (La. App. 2 Cir. 8/9/17), 243 So. 3d 1100. An abuse of discretion occurs when such discretion is exercised in a way that deprives a litigant of his day in court. Howard v. Lee , supra .
The trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Id. Some factors to consider are diligence, good faith, and reasonable grounds. Id. Of equal importance, however, is the other litigants' corresponding right to have the case heard as soon as practical. Gilbert v. Visone , 32,303 (La. App. 2d Cir. 10/27/99), 743 So. 2d 909 ; Demopulos v. Jackson , 33,560 (La. App. 2 Cir. 6/21/00), 765 So. 2d 480.
By their first and second assignments of error, the plaintiffs contend that the trial court erred in failing to allow and consider the substituted expert affidavit filed in support of their opposition to the defendants' motions for summary judgment. The plaintiffs maintain that once the trial court granted a continuance during the informal telephone conference, the statutory time periods for the submission of documents opposing the defendants' motions for summary judgment automatically reset based on the new hearing date. Thus, the plaintiffs conclude, the substituted affidavit submitted 15 days before the hearing on May 22, 2018, was timely and should have been considered. In support of their argument, the plaintiffs rely on Harris v. Louisiana Medical Mutual Insurance Company , 2015-1584 (La. App. 1 Cir. 4/15/16), 2016 WL 1535067, writ denied , 2016-1161 (La. 10/10/16), 207 So. 3d 408.
In Harris , the plaintiffs failed to file an opposition to the motion for summary judgment. Instead their counsel filed an "emergency motion to continue" the morning of the hearing based on a scheduling conflict. The plaintiffs also attached a copy of their outstanding discovery responses which identified an expert witness. The trial court granted the plaintiffs' motion to continue and rescheduled the hearing on the defendants' motion for summary judgment. Eleven days prior to the hearing, the plaintiffs filed their opposition and expert affidavit, and the defendants moved to strike the opposition and affidavit arguing that the submissions were untimely. The trial court granted both the defendants' motion to strike and summary judgment. On appeal, the First Circuit reversed the trial court decision, finding that the trial court should have considered the opposition that was filed after the original hearing date but prior to the re-fixed hearing.
Conversely, the defendants argue that the trial court was correct and within its vast discretion to deny the continuance, and exclude the plaintiffs' substituted affidavit. In support of their argument, they rely on Newsome v. Homer Memorial Medical Center , 2010-0564 (La. 4/9/10), 32 So. 3d 800 ; and Mahoney v. East Carroll Parish Police Jury , 47,494 (La. App. 2 Cir. 9/26/12), 105 So. 3d 144, writ denied , 2012-2684 (La. 2/8/13), 108 So. 3d 88.
In Newsome , the plaintiff failed to file an opposition to the defendants' motion for summary judgment. Instead, counsel for the plaintiff contacted the defendants' counsel and they agreed to continue the hearing with the caveat that the matter would not be continued again. However, 7 days prior to the new hearing date, the plaintiff filed a "motion for continuance or in the alternative permission to file affidavits late."
At the defendants' MSJ hearing, the trial court granted the plaintiff's motion. Ultimately, the Louisiana Supreme Court reversed that decision, finding: (1) that the plaintiff failed to show good cause for continuing the hearing; and (2) that the trial abused its discretion in granting the motion for continuance solely in order to allow plaintiff's expert affidavit to be filed in compliance with the 8-day limit contained in La. C.C.P. 966. See Newsome, supra .
Similarly, in Mahoney , the plaintiff did not oppose the defendants' motions for summary judgment, but moved for a continuance 3 days prior to the hearing on the basis of needing additional time for discovery. All parties were physically present at the MSJ hearing where the trial court granted the continuance with the agreement by the plaintiff's counsel to make any filings by the specific deadline set by the trial court. Nonetheless, the plaintiff filed opposing materials 6 days after the deadline, arguing that the submission was still timely under La. C.C.P. 966(B). This Court found that the deadline to file an opposition was mandatory, and therefore the trial court did not abuse its discretion by refusing to consider the plaintiff's late-filed opposition materials. See Mahoney, supra .
Based on Newsome and Mahoney , the defendants argue that the trial court had the discretion to close the record at the hearing on March 27, 2018, and did not abuse its discretion in refusing to consider the substitute expert affidavit of Dr. Davey. From our view of the record and jurisprudence, we find that the trial court did abuse its discretion in resetting the MSJ hearing date, but prohibiting any further submissions in the record. Moreover, we do not find the defendants' reliance upon Newsome and Mahoney to be persuasive. Instead, we can factually distinguish this case from both Newsome and Mahoney .
In Newsome , counsel for the plaintiff and defendants agreed to the first continuance with the stipulation that the matter would not be continued again. Then, the plaintiffs subsequently filed a motion for continuance exactly 7 days prior to the hearing, and trial court granted the plaintiff's continuance solely to allow additional time to file an affidavit. By contrast, in our present case, the trial court originally granted a continuance based on the conflicting trial dates of the plaintiffs' counsel, and there was no stipulation that the matter would not be continued again. Further, the plaintiffs filed a motion to substitute original affidavit exactly 15 days before the May 22, 2018 hearing which complies with La. C.C.P. 966(B)(2) and District Rule 9.9.
In addition, we find our present case is dissimilar from Mahoney based on a key distinguishing factor: agreement by the parties . (Emphasis added.) In Mahoney , the trial court and all the parties were physically present and agreed to the extended deadline set by the trial court. Yet, here, neither the plaintiffs nor their attorney, Mr. Simien were present during the hearing on March 27, 2018, when the trial court ordered the record closed as of that date. At that stage in this litigation, the plaintiffs had only agreed to the new hearing date of May 22, 2018.
Moreover, as illustrated in Mahoney , this Court has articulated 2 essential findings in evaluating whether the trial court abused its discretion in considering late-filed opposition materials to a motion for summary judgment. First, the rescheduling of the hearing reset the time for the filing of opposition documents. Second, the trial court has vast discretion in deviation from the rules "in the interest of justice and upon notice to all parties."
Here, we find that when the trial court elected to keep May 22, 2018, as the new hearing date, the time periods under La. C.C.P. 966 were logically reset. Thus, the plaintiffs' motion to substitute original affidavit was submitted within the statutory time periods. Moreover, the trial court's decision to reserve May 22, 2018, for oral arguments only was an erroneous deviation from the rules because La. C.C.P. 966 does not create a distinction for submissions after a continuance is granted. Indeed, the plain wording of La. C.C.P. 966 states "not less than 15 days prior to the hearing on the motion." From our view of the record, the trial court's partial exercise of discretion undermines the purpose and objectives of the legislature in allowing both the court and mover sufficient time to narrow the issues in dispute and prepare for argument at the hearing. See Buggage, supra ; Mahoney, supra .
Accordingly, we reverse the trial court ruling which denied the plaintiffs' motion to substitute original affidavit. We reverse the trial court judgment which granted summary judgment in favor of the defendants, Dr. Sartor, Dr. Dona, and Restorative Home Health Care, LLC. We pretermit any consideration of the plaintiffs' third and final assignment of error regarding the validity of the previous unsigned expert affidavit submitted.
CONCLUSION
For the foregoing reasons expressed, we reverse the trial court ruling which denied the plaintiffs' motion to substitute original affidavit. We reverse the trial court judgment which granted summary judgment in favor of the defendants, Dr. Sartor, Dr. Dona, and Restorative Home Health Care, LLC. Costs of this appeal are assessed to the defendants, Dr. Sartor, Dr. Dona, and Restorative Home Health Care, LLC.
REVERSE.
McCALLUM, J., concur in the result.
ON REHEARING
THOMPSON, J.
This is a medical malpractice action in which the trial court granted motions for summary judgment in favor of Defendants-Appellees, Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C.. That ruling was appealed by Plaintiff-Appellants, Beverly Reed, Lisa Reed, Ricky Reed, Kent Reed, Patricia Anding, Kirby Reed, Larry Reed, and Elijah Reed, as the surviving children of Lela Kindle. This Court originally reversed that decision. Reed v. Restorative Home Health Care, LLC , 52,645 (La. App. 2 Cir. 06/05/19), ––– So. 3d ––––, 2019 WL 2363333. Defendant-Appellees, Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C., sought and this Court granted rehearing. For the reasons set forth below we now AFFIRM the judgment of the trial court dismissing the claims against Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C. ISSUE PRESENTED
The issue presented is whether it is within the discretion of the trial court, when granting a continuance of a hearing on a motion for summary judgment, to limit or modify the statutory provisions of deadlines for filing oppositions thereto as provided in La. C.C.P. art. 966. Here, the trial court set an original hearing date for the motions for summary judgment in January 2018. Soon thereafter, an additional motion for summary judgment was filed by a different defendant and all motions for summary judgment were upset and set to a new date in March 2018. Thereafter, the hearing date was continued again to May 2018 with the expressed limited purpose to allow for oral arguments only. The trial court ordered the record closed for the purposes of discovery and filing oppositions, and a specific written judgment was issued by the trial court to that effect. After the trial court order closing the record, but prior to the May 2018 oral argument date, Plaintiffs sought to "substitute" a document in the record as a part of its opposition to the pending motions. The trial court denied the request noting the record had been closed earlier when the new oral argument date had been fixed. At the May 2018 hearing, the trial court granted the motions for summary judgment in favor of defendants. This appeal followed and is before this panel on rehearing.
ASSIGNMENTS OF ERROR
Plaintiffs-Appellants assert the following three assignments of error:
1) The trial court erred in failing to allow the substitution of the signed affidavit for the previously filed unsigned affidavit when the trial court granted the motion to continue the hearings on the motions for summary judgment and the motion to continue had been filed prior to the expiration of the opposition filing deadline and the substituted affidavit was filed at least fifteen days prior to the new hearings date.
2) The trial court erred in failing to consider the properly signed affidavit that was submitted at least fifteen (15) days prior to the rescheduled hearings on the motions for summary judgment when the hearings were rescheduled based on a motion to continue the hearings that was filed prior to the original opposition deadline and that motion was granted because counsel for the plaintiffs had a previously scheduled trial.
3) The trial court erred in failing to consider the original affidavit filed in opposition to the motions for summary judgment when the attestation of the notary established that the affiant had sworn to the facts stated in the affidavit because, despite this attestation, the trial court ruled that the affidavit had to have been signed.
FACTS AND PROCEDURAL HISTORY
On June 1, 2015, Beverly Reed, Lisa Reed, Ricky Reed, Kent Reed, Patricia Anding, Kirby Reed, Larry Reed, and Elijah Reed (hereinafter "Plaintiffs"), filed a petition for damages in the Fourth Judicial District Court. Restorative Home Health Care, L.L.C. (hereinafter "Restorative"), was named as the defendant. On August 24, 2017, Plaintiffs filed a first amended petition adding Dr. Frank Sartor ("Dr. Sartor"), Dr. Donna Donald ("Dr. Donald"), Dr. Nilgun Frengell ("Dr. Frengell"), Dr. Priscilla Navarro ("Dr. Navarro"), Dr. Grant Dona ("Dr. Dona"), Dr. Charles Simmons ("Dr. Simmons"), and St. Francis Medical Center ("St. Francis") as defendants. Plaintiffs alleged that, as a result of their negligence, the collective defendants caused the death of Lela Kindle.
On November 6, 2017, Dr. Dona filed a motion for summary judgment on the grounds that Plaintiffs had not identified "any expert medical witness who they might present in support of their claims or any part of them." Dr. Dona's motion for summary judgment was set for argument on January 5, 2018. On November 8, 2017, Drs. Sartor, Donald, Frengell, and Navarro (hereinafter collectively referred to as "Doctor Defendants") filed a motion for summary judgment on the same grounds, which was also set for argument on January 5, 2018, along with Dr. Dona's similar motion. Doctor Defendants likewise asserted that Plaintiffs did not have the evidence necessary to support their claim and they were therefore entitled to summary judgment.
On January 3, 2018, Restorative filed its own motion for summary judgment based on lack of any genuine issue of material fact, two days before the scheduled January 5, 2018 hearing date for the pending motions for summary judgment filed by Doctor Defendants and Dr. Dona. Restorative's motion for summary judgment was set for argument on March 27, 2018. Due to notice and service issues, the motions for summary judgment filed by Doctor Defendants and Dr. Dona were continued to that same March 27, 2018 hearing date, therefore setting all pending motions for summary judgment for hearing on the same date.
On March 12th, 2018, Plaintiffs filed a motion to continue the March 27 hearing date for all motions for summary judgment of Doctor Defendants, Dr. Dona, and Restorative. Attached thereto was the unsigned affidavit of Plaintiffs' medical expert, Dr. Christopher Davey ("Dr. Davey"). Plaintiffs' counsel requested the continuance because of an asserted scheduling conflict with a trial in Baton Rouge. An informal telephone conference was held on Friday, March 16 with Judge Sharp and all counsel. All parties apparently agreed under the circumstances at that time that the hearing date on the motions for summary judgment could be refixed due to the conflict of Plaintiffs' counsel to May 22, but no order was issued by the trial court.
That Monday, March 19, Judge Sharp and all counsel held a formal telephone conference to place on the record an agreement consistent with what had been discussed during the informal telephone conference on March 16. During this conference, Plaintiffs' counsel advised the trial court that his scheduling conflict had resolved, but he still needed the continuance so he would have additional time to conduct discovery. Judge Sharp stated that he would take the matter under advisement.
The next day, on March 20, Judge Sharp denied Plaintiffs' motion to continue and ruled that "[a]ll dates currently set remain." Two days later, on March 22, Plaintiffs' counsel sent a letter to Judge Sharp advising his previous trial conflict had arisen yet again. Thereafter, on March 23, Plaintiffs filed a "Motion for Reconsideration/New Trial on Motion to Continue Hearing Date on Motions for Summary Judgment." All defendants filed oppositions thereto.
On March 27, at the hearing on the motions for summary judgment, neither Plaintiffs nor their counsel were present. This was apparently due to Plaintiffs' counsel's revived trial conflict in Baton Rouge. At that hearing, and as outlined in the subsequent judgment entitled "Judgment on Plaintiffs' Motion to Continue, and Order that the Record be Closed Pursuant to La. Code of Civil Procedure Art. 966," the trial court held:
"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that only the documents in support of the motions for summary judgment, in opposition to the motions for summary judgment, and any reply memoranda and objections timely filed and served in accordance with La. Code of Civil Procedure 966(B) prior to March 27, 2018 hearing date shall be considered by the court. In all further respects, the record for purposes of consideration of Defendants' Motions for Summary Judgment is closed."
This judgment was rendered March 27 and signed and filed in the record on April 4.
The next month, on May 7, Plaintiffs filed a motion and requested the court allow them to substitute a signed version (dated March 21, 2018) for the original unsigned affidavit of Dr. Davey in connection with their opposition to the motions for summary judgment. All defendants opposed the motion.
On May 22, the trial court denied Plaintiffs' motion to substitute the signed affidavit. On that same date the trial court dismissed the claims against Drs. Donald, Frengell, and Navarro by granting the "Consent Judgment on Motion for Summary Judgment." The trial court also, by written judgment signed and filed June 14, dismissed the claims against Dr. Dona, Dr. Sartor, and Restorative. This appeal and rehearing followed.
STANDARD OF REVIEW
Appellate courts review the trial court's exclusion of an opposition or affidavit to a motion for summary judgment for abuse of discretion as long as there is no prejudice to the other party. Buggage v. Volks Constructors , 06-0175 (La. 05/05/06), 928 So. 2d 536.
DISCUSSION
Plaintiffs allege the acts of medical malpractice giving rise to this matter occurred in April-May 2014. A medical review panel was not requested until April 2015, and the medical review panel rendered its unanimous decision on May 9, 2017, in favor of defendants. Plaintiffs' allegations of malpractice were not of an obvious type which would not require the testimony of a medical expert. The medical review panel rendered a unanimous decision in favor of defendants. Plaintiffs would be aware at least by May 9, 2017, that testimony from a medical expert would be necessary in order to prove their claims.
Plaintiffs amended their petition August 24, 2017, after the decision of the medical review panel and after the defendants' discovery requests pointed out the lack of medical expert to prove Plaintiffs' claim. Defendants began filing motions for summary judgment in November 2017 addressing the issue of Plaintiffs' lack of a medical expert to support their claims. A signed affidavit from their medical expert was not filed prior to the scheduled March 27 hearing date. When the trial court confirmed the record had been closed and continued the oral argument date to May 22 it was not until May 7 that Plaintiffs filed the signed affidavit from the medical expert, which was dated March 21, 2018. At the May 22 hearing, Plaintiffs' counsel acknowledged that the court closed the evidence as of March 12, 2018.
BY MR. SIMIEN: "... To begin with the argument is being made that the court closed the evidence as of March the 12th. And, yes, there was an order to that effect..."
La. C.C.P. art. 966(B)(2) provides that any "opposition to the motion [for summary judgment] and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion." "The purpose of requiring the opposition memorandum to be served on the mover ‘at least’ [fifteen] days before the hearing is to allow both the court and mover sufficient time to narrow the issues in dispute and prepare for argument at the hearing." Mahoney v. East Carroll Parish Police Jury , 47,494 (La. App. 2 Cir. 09/26/12), 105 So. 3d 144, 151, writ denied , 12-2684 (La. 02/08/13), 108 So. 3d 88.
In contrasting the implications of statutory requirements for deadlines in filing oppositions to motions for summary judgment with deadlines imposed by a trial court, we recognize the holding in Dufour v. Schumacher Group of La., Inc. , 18-20 (La. App. 3 Cir. 08/01/18), 252 So. 3d 1023, 1028, writ denied , 18-1456 (La. 11/20/18), 256 So. 3d 991. Dufour is distinguishable from the instant matter in that plaintiffs in the present case had the benefit of filing oppositions to the motions for summary judgment prior to an original January 2018 and subsequent March 2018 hearing dates, and prior to the trial court ruling on a motion to continue and exercising its great discretion in fixing filing deadlines. The Dufour court noted the trial court in that matter had not denied the right to file timely supplemental response affidavits. Id. at 1028. In the present matter, the trial court closed the record. In Dufour , there was no scheduling order in place and the court did not explicitly state that the record was closed. Id. at 1029. Moreover, in Dufour , the trial judge granted plaintiffs' continuance in order to conduct additional discovery. Id. at 1027. Here, the trial court explicitly closed the record and stated orally and in its written judgment that the record was closed and the limited continuance was granted solely for purposes of hearing oral arguments.
While the remedy of excluding the properly signed and notarized affidavit may be considered harsh, such a decision falls within the discretion of the trial court as the filing date fell outside the time period it had established. La. C.C.P. art. 966(B)(2) requires parties to file oppositions to motions for summary judgment fifteen days before the scheduled hearing on the motion. Here, Plaintiffs filed an opposition. Unfortunately, it did not contain an affidavit which had been signed and notarized. As Plaintiffs' counsel's trial conflict had resolved as of the last telephone conference, the only basis for the continuance was a request for more time to conduct discovery. The trial court denied the requested continuance and set the hearing for March 27.
At the hearing on March 27, neither Plaintiffs nor their counsel were present. The trial court accepted any documents filed by that date and granted a limited continuance only to allow oral arguments. This action by the trial court did not automatically reset the deadlines associated with the motion for summary judgment, as any such result would have been in direct contradiction to the trial court's expressed prior ruling to close the record.
The trial court must be able to control its calendar, and the decision to grant in whole or part a motion to continue is well within its discretion. The trial court has the autonomy to grant in whole or part motions for continuance filed with it and to allow hearing dates for oral arguments to be fixed in the future without automatically resetting the deadlines for filing oppositions. In light of the foregoing, we find that the trial court did not abuse its discretion in closing the record and thereafter rejecting any untimely filed oppositions after the deadline established for motions for summary judgment. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment. All costs of this appeal are assessed to Appellants.
AFFIRMED.
WILLIAMS, C.J., dissents with written reasons.
STONE, J., dissents for the reasons assigned by C.J. Williams.
WILLIAMS, C.J., dissents.
I respectfully dissent. Unless extended by the court and agreed to by the parties, any opposition to the motion for summary judgment and all documents in support of the opposition shall be filed and served not less than 15 days prior to the hearing on the motion. La. C.C.P. art. 966(B)(2).
Article 966 was amended in 2016. The Official Revision Comments to the article, in pertinent part:
(d) Subparagraphs (B)(1), (B)(2) and (B)(3) are new. They establish the time periods for filing or opposing motions for summary judgment. These provisions supersede Rule 9.9 of the District Court Rules but at the same time recognize the ability of the trial court and all of the parties to enter in to a case management or scheduling order or other order to establish deadlines different from those provided by this Article. Nevertheless, these orders may not shorten the period of time allowed for a party to file or oppose a motion for summary judgment under this Article .
(Emphasis added).
In this case, the deadline for filing the affidavit was "not less than fifteen days prior to the hearing on the motion." The plaintiff sought leave to file the properly signed affidavit exactly 15 days prior to the rescheduled hearing on the motion for summary judgment.
It is well settled that the trial court has great discretion in granting or denying a continuance. However, the Revision Comments to Article 966 clearly state that a trial court may not circumvent the established 15-day time period by imposing an order that serves to "shorten the period of time allowed for a party to file or oppose a motion for summary judgment."
Additionally, the purpose of requiring the opposition memorandum to be served on the mover not less than 15 days before the hearing is to allow both the court and mover sufficient time to narrow the issues in dispute and prepare for argument at the hearing. Mahoney v. East Carroll Parish Police Jury , 47,494 (La. App. 2 Cir. 9/26/12), 105 So. 3d 144, writ denied , 2012-2684 (La. 2/8/13), 108 So. 3d 88. That purpose was served in this case, as the movers had notice of the existence of the affidavit of the expert witness, albeit unsigned. Further, there is no showing that the movers would be prejudiced if the deadline was extended to coincide with the rescheduled hearing date.
Consequently, in my view, the district court abused its discretion in closing the record for evidence, while continuing the hearing date for arguments on the motions. Thus, I believe the district court erred in excluding from evidence the properly signed affidavit timely filed by the plaintiffs 15 days prior to the rescheduled hearing date.