Midtown Medical, L.L.C. VS The Department of Health & Hospitals; Bruce D. Greenstein, Individually and in his official capacity as Secretary of the Department of Health & Hospitals; & Jerry Phillips, Individually and in his official capacity as Undersecretary of the Department of H
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STATE OF LOUISIANA COURT OF APPEAL t FIRST CIRCUIT 2012 CA 1597 MIDTOWN MEDICAL L C l L0 VERSUS THE DEPARTMENT OF HEALTH HOSPITALS BRUCE D GREENSTEIN IN HIS OFFFICIAL CAPACITY AS SECRETARY INDIVIDUALLY THE DEPARTMENT OF HEALTH HOSPITALS AND JERRY PHILLIPS INDIVIDUALLY OF IN HIS OFFICIAL CAPACITY AS UNDERSECRETARY OF THE DEPARTMENT OF HEALTH HOSPITALS 7udgment Rendered FEg 1 5 2013 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No 612 718 Honorable Janice Clark Judge Presiding Ellie T Schilling Thomas M McEachin Counsel for Plaintiff Appellee Midtown Medical L C New Orleans Louisiana Eric D Torres Brandon J Babineaux Counsel for Defendants Appellants Department of Health Hospitals et al Neal R Elliott Jr Baton Rouge Louisiana BEFORE WHIPPLE C McCLENDON J AND HIGGINBOTHAM JJ McCLENDON J The Department of Health and Hospitals DHH seeks review of two judgments that granted appellee request for injunctive relief both of which s were rendered after the trial court had signed a prior judgment denying s appellee request For the following reasons we dismiss the appeal for lack of jurisdiction FACTS AND PROCEDURAL HISTORY By correspondence dated May 14 2012 DHH notified Midtown Medical LLC Midtown that it was seeking monetary recoupment for alleged Medicaid overpayments and a monetary penalty and that it would seek to exclude Midtown from the Medicaid Program By separate correspondence also dated May 14 2012 DHH additionally notified Midtown of its intention to immediately terminate Midtown sMedicaid provider agreement On June 7 2012 Midtown filed a Verified Petition for Injunctive Relief and Damages naming DHH and DHH secretary and undersecretary as defendants s Midtown requested the injunction to prevent DHH from terminating Midtown s Medicaid provider agreement denying Medicaid remittances and recouping Medicaid overpayments Following the hearing on Midtown request for injunctive relief the trial s court took the matter under advisement and requested that post hearing memoranda and proposed judgments be submitted by the parties DHH submitted its post brief on July 9 2012 and submitted its proposed hearing judgment the ne day On July 13 2012 the trial court signed the judgment in favor of DHH denying Midtown srequest for a preliminary injunction On July 16 2012 Midtown submitted its post brief with a hearing proposed judgment to the court On July 26 2012 the trial court signed sproposed judgment granting the preliminary injunction Also on uly Midtown 26 2012 the trial court signed an order granting Midtown motion for s 1 In its petition Midtown also sought damages for violation of 42 U C S due process rights 2 1983 and for denial of suspensive appeal from the July 13 2012 judgment On July 30 2012 Midtown filed its appeal bond On August 9 2012 the trial court signed a third judgment which again granted the preliminary injunction in favor of Midtown On August 20 2012 DHH filed a suspensive appeal to seek review of the July 26 2012 and August 9 2012 s judgments granting Midtown preliminary injunction The trial court granted DHH appeal on August 23 2012 s At a hearing held on September 10 2012 pursuant to various motions that had been filed by the parties the trial court informed the parties that it was sua sponte vacating all prior judgments and that it would notify all counsel when the trial court reached a decision The parties note that on September 12 2012 the trial court entered a minute entry that confirmed the trial court previous s judgment in favor of Midtown However the minute entry has not been included in the appellate record DISCUSSION The record before us contains three judgments the July 13 2012 judgment denying the injuctive relief sought by Midtown and the July 26 2012 and August 9 2012 judgments granting the injunctive relief sought by Midtown The July 13 2012 judgment is not before us in this appeal because Midtown s appeal has been dismissed Accordingly the only judgments pending before us in this appeal are the July 26 and August 9 2012 judgments As a reviewing court we are obligated to recognize our lack of jurisdiction if it exists 95 6 10 Starnes v Asplundh Tree Expert Co 94 La 1 Cir 1647 App 670 2d So 1242 1245 In Starnes this court addressing amendments to judgments explained Pursuant to La Civ art 1951 a final judgment may Code P be amended by the trial court at any time on its own motion or Z It is unclear which the trial court signed first July 26 2012 judgment or the motion for the suspensive appeal Midtown filed an Unopposed Motion to Dismiss Appeal asserting that the trial court had granted its preliminary injunction and vacated the prior judgment denying injunctive relief such that its appeal of the July 13 2012 judgment had become moot The trial court signed s Midtown order dismissing the appeal on October 17 2012 3 pursuant to the motion of any party to alter the phraseology but not the substance of a judgment or to correct errors in calculation Thus under Article 1951 a judgment may be amended where the amendment takes nothing from or adds nothing to the original judgment Where an amendment to a judgment adds to subtracts from or in any way affects the substance of the judgment such judgment may not be amended under La Code P Civ art 1951 Article 1951 does not authorize the amendment of a final judgment to conform with the trial court reasons for judgment s where the amendment would make substantive changes to the original judgment Indeed the trial court written judgment is s controlling even though the trial court may have intended otherwise The proper vehicle for a substantive change in a judgment is a timely motion for a new trial or a timely appeal The Louisiana Supreme Court has also recognized that on its own motion and with the consent of the parties the trial court may amend a judgment substantively An amended judgment rendered without recourse to the above procedures is an absolute nuility Internal Citations Omitted Starnes 670 So at 1245 2d 46 The changes made by the trial court in the July 26 and August 9 2012 judgments are clearly substantive changes to the July 13 2012 final judgment insofar as the July 26 and August 9 judgments grant injunctive relief in favor of Midtown whereas the July 13 judgment denied injunctive relief No timely motion for new trial was filed from the July 13 2012 judgment nor did both parties consent to the changes made to the July 13 2012 judgment Since the substantive changes were not made pursuant to a contradictory motion for new trial filed by the parties or by the court on its own motion pursuant to LSA P C art 1971 by consent of the parties or by a timely appeal the subsequent amending judgments are without legal effect See Starnes 670 So at 1246 2d Because the July 26 2012 and August 9 2012 judgments are without effect we lack jurisdiction to consider the merits of DHH appeal from these s The parties sought to have an additional hearing for the trial court to reconsider whether the preliminary injunction should issue However we note that the trial court is divested of jurisdiction over all matters reviewable under a suspensive appeal on the granting of the order of appeal and the timely filing of the appeal bond LSA art 2088 Accordingly although it P C appears that the trial court possibly retained jurisdiction when it signed the July 26 Z012 judgment before Midtown filed its suspensive appeal bond the trial court had no jurisdiction to sign the August 9 2012 judgment or take further action on matters reviewable under the appeal including vacating the prior judgments in the September 12 2012 minute entry after it signed the order for suspensive appeal and Midtown filed its appeal bond 4 invalid judgments Id Additionally the July 13 2012 judgment is not currently before us because Midtown appeal has been dismissed s We further note that Midtown filed a motion to dismiss DHH appeal s asserting that no parly has sought an appeal from the September 9 2012 order of the trial court which vacated its prior rulings Midtown also asserts that the appeal sought from the July 26 2012 judgment was untimely because it was not sought within 15 days of the trial court judgment See LSA art 3612 s P C C However as noted above we are without jurisdiction to consider the merits of s DHH appeal Accordingly we deny Midtown motion to dismiss as moot s Midtown also seeks to supplement the appellate record with various pleadings and documents not included in the record on appeal Because we do not reach the merits of the appeal the supplementation is denied as moot CONCLUSION For the foregoing reasons and finding that the only valid judgment was the first judgment signed on July 13 2012 in favor of DHH and denying s Midtown request for a preliminary injunction we dismiss DHH appeal deny s s Midtown Motion to Dismiss the appeal as moot and deny Midtown motion to s supplement the record as moot Costs of this appeal in the amount of 2 90 220 are to be split between the parties APPEAL DISMISSED MOTION TO DISMISS APPEAL AND TO SUPPLEMENT THE RECORD DENIED AS MOOT 5
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