Evorjia Woodard VS James Robert Upp, Jr., M.D.; Our Lady of the Lake Regional Medical Center

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT NO. 2013 CA 0999 i EVORJIA WOODARD VERSUS JAMES ROBERT UPP, JR., M.D. AND OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER Judgment Rendered: f B I 2 On Appeal from The 19` Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana Trial Court No. 610855 The Honorable Kay Bates, Judge Presiding Peter " Q" John Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Evorjia Woodard Jason R. Cashio Attorneys for Defendants/ Appellees, Baton Rouge, Louisiana James Robert Upp, Jr. M.D. and Our and Lady of the Lake Regional Medical Thomas R. Temple, Jr. Center Baton Rouge, Louisiana BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ, CRAIN, J. In this medical malpractice action, the plaintiffs appeal a judgment sustaining a dilatory exception of lack of procedural capacity and a peremptory exception of prescription, and dismissing all claims with prejudice. We affirm in part, amend in part, reverse in art, and remand for further proceedings. FACTS AlVD PROCEDURAI. HISTORY Evorjia Woodard filed a petition for damages against James Robert Upp, Jr., M.D., and Our Lady of the Lake Regional Medical Center ( Hospital), on April 9, 2012, alleging that the defendants breached the standard of care while treating Mrs. Woodard' s minor daughter, Alexis Woodard, who was later transferred to another hospital where she died. According to the petition, it was filed by " Evorjia Woodard, a major individual, domiciled in the Parish of East Baton Rouge, City of Baton Rouge, State of Louisiana, for and on behalf of her deceased minor daughter and through her undersigned attorney. . . ." Dr. Upp and the Hospital responded to the petition by filing a dilatory exception raising the objections of lack of procedural capacity and nonconformity of the petition with the requirements of Louisiana Code of Civil Procedure article 854. The defendants primarily argued that the petition lacked sufficient allegations to establish that Mrs. Woodard was the natural tutor of Alexis pursuant to Louisiana Code of Civil Procedure article 4061, 1. 1 By judgment signed on Article 4061. 1, applicable to natural tutorships arising after the death of a parent or upon divorce or judicial sepazation, provides, in part, that " the natural tutor of a minor child may file an action for damages based on a delictual obligation without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of filing a petition pursuant to Article 4031, if the natural tutor is any of the following. . . [ t]he surviving pazent of the minor cluld [ or] [ t] he parent under whose sole care the minor child has been placed when the parents are divorced or judicially separated from bed and board. . . ." La. Code Civ. Pro. art. 4061. 1A; see also La. Civ. Code arts. 250 and 257. Under Subpart B of Article 406L1, the " petitioner in an action for damages based on a delictual obligation shall allege in the petition that he qualifies under Paragraph A of this Article to act of right as tutor, and the petitioner shall set forth the facts, including the relationship to the minor child, entitling the petitioner to act as tutor." 2 October 15, 2012, the trial court granted the exceptions but permitted Mrs. Woodard fifteen days to amend her petition.2 On November 5, 2012, Mrs. Woodard tiled an amended petition for damages that added a new plaintiff, Ado Woodard (Mr. Woodard), and alleged that Mrs. Woodard and Mr. Woodard vvere legally married and that Alexis was born of the Dr. LJpp and the Hospital again filed an exception of procedural marriage. capacity as " to the claims of plaintiff, Evorjia Woodard," arguing that the child' s father, Mr. Woodard, was the proper party to assert any claims on behalf of their deceased minor child pursuant to Louisiana Code of Civil Procedure article 683. Subpart C of Article 683 provides, in pertinent part, " The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is born of the maniage of parents who are not divorced or judicially separated." As to the claims filed by Mr. Woodard, the defendants asserted a peremptory exception of prescription and argued that the medical malpractice action prescribed on August 8, 2012. Citing Warren v. Louisiana Medical Mutual Insurance Company, 07- 0492 ( La. 12/ 2/ 08), 21 So. 3d 186, Dr. Upp and the Hospital asserted that the amended petition did not relate back to the filing of the original petition on April 9, 2012, and, therefore, the claims filed by Mr. Woodard had prescribed. The defendants requested that the exceptions be sustained and that there be judgment "dismissing plaintiffs' amended petition" with prejudice. The record on appeal does not contain the memorandum filed on behalf of Mr. and Mrs. Woodard in opposition to the exceptions; however, at the hearing on the exceptions, plaintiffs' counsel essentially argued that applying Article 683C to prevent Mrs. Woodard from filing a claim on behalf of her deceased minor daughter would be unfair and suggested that Article 683C was unconstitutional. 2 Prior to the judgment, Mrs. Woodard obtained leave of court and filed an amended petition but later withdrew that amended petition by order of the court issued on October 31, 2012. 3 At the conclusion of the hearing;, the trial court tanted the exceptions, finding that Mrs. Woodard did not have the ca acity to bring the suit under Article 683 and that she had " not completed the procedural formalities to become the administratrix" of The trial court further held that Mr. Woodard' s claim had her daughter' s estate. prescribed. A judgment was signed on March 25, 2013, dismissing all of the plaintiffs' claims with prejudic.e. Mr. and Mrs. Woodard appealed.3 LAW AND ANALYSIS On appeal, Mrs. Woodard argues that Article 683C is unconstitutional or should not be applied to the facts of this case; and, therefore the trial court ened in sustaining the dilatory exception of lack of procedural capacity. Dr. Upp and the Hospital contend that Mrs. Woodard should be precluded from challenging the constitutionality of Article 683C because she did not assert the unconstitutionality of the article in a pleading filed with the trial court. See Vallo v. Gayle Oil Company, Inc., 94- 1238 ( La. 11/ 30/ 94), 646 So. 2d 859, 864- 865. We pretermit consideration of Mrs. Woodard' s constitutional challenge to Article 683C and any procedural deficiencies inherent in that challenge because ( 1) we find Article 683C does not apply to the faets of this case, and ( 2) the trial court' s ruling is supported by the altemative basis cited by the court insofar as it sustained the exception of lack of procedural capacity and dismissed the claims filed by Mrs. Woodard in a representative capacity on behalf of her deceased child. A. Dilatory Exception of Lack of Procedural Capacity The dilatozy exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in 3 Although Mr. Woodard joined in the motion for appeal, he did not file a brief with this court; nor has Mrs. Woodard advanced any argument for the modification or reversal of the judgment to the extent it sustained the exception of prescription and dismissed Mr. Woodazd' s claims. Therefore, our review of the trial court' s judgment does not extend to the granting of the exception of prescription and dismissal of Mr. Woodard' s claims, as that portion of the judgment is final. See Uniform Rules Courts of Appeal, Rules I- 3 and 2- 12.4; Franklin v. AIG Casualty Company, 13- 0069, n3 (La. App. 1 Cir. 6/ 7/ 13), 2013 WL 3475773 ( unpublished opinion). 4 judgment and/or challenges the autharity of a plaintiff who appears in a purely representative capacity. See La. Code Civ. Pro. art. 926A(6); Palowsky v. Premier Bancorp, Inc., 597 So. 2d 543, S46 ( La. App 1 Cir. 1992). Lack of capacity is not synonymous with no right of action. Horrell v. Horrell, 99- 1093 ( La. App. 1 Cir. 10/ 6! 00), 80k3 So. 2d 363, 369, writ denied, 803 So. 2d 971 ( La. 12/ 7/ O1). Lack of proceduraP capacity is a diPatory exceptioti which tests a party' s legal capacity to bring a suit. Horrell, 808 50. 2d at 369. It is not necessary to allege the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a iegal entity or an organized association of persons made a party. Such procedural capacity shall be presumed, unless challenged by the dilatory exception. La. Code Civ. Pro. art. 855. The determination of whether a party has the procedural capacity to sue or be sued involves a question of law, which is reviewed under the de novo standard of review to determine whether the ruling of the trial court was legally correct. Swift v. Juvenile Court, 09- 1182 ( La. App. 3 Cir. 3/ 10/ 10), 20I0 WL 78f031 ( unpublished opinion), writ denied, 10- 1139 ( La. 9/ 17/ 10), 45 So. 3d 1048. B. Claims Filed in Representative Capacity Mrs. Woodard and the defendants focus their appellate arguments on Article 683C. Subpart A of Article 683 provides that an unemancipated minor does not have procedural capacity, and Subparts B through D identify the proper parties to enforce a right of an unemancipated minor; however we interpret the article to govern the enforcement of a claim of a living minor, not a deceased minor. This interpretation is supportec[ by the facts of the cases cited by the defendants, as each of those cases involv d a parent' s capacity to file a personal injury claim on behalf of a living minor. See Wiggins v. State Tfirough Department of Transportation and Development, 97- 0432 ( La. App. I Cir. 5%15/ 98), 712 So. 2d 1006, lOQ8, writ not s considered, 98- 1ES2 ( La. 9!25 9£S1, , 726 So. 2d 6; C'osey v. Allen, 316 So. 2d 513, 516 ( La. App. 1 Cir. 1975 j; fllexander v. Towa f, reYette, 371 So. 2d 1245, Iec 1246 ( La. 1334, App. 3 Gir, 1979). 1335 { I, a. Ap. inapplicable to the iacts 1 S e c dsc' c tt v. a QCk' s Cookie Company, 413 So. 2d of' this 3' I 982}. C; ii. refior< u,e find nticle 683 to be s. The enforcement of a right of a deceased person is governed by Article 685, which provides that the " succession representative appointed by a court of this state is the proper plaintiff to sue to enfarce a right of the deceased or of his succession" while a succession is under administration. If no succession is open and under administration, an heir can sue directly, in his or her own name, without having been recognized as such by the probate court; all that is required is that he furnish satisfactory evidence of his right to inherit. See La. Code Civ. Pro. art. 426; La. Civ. Code arts. 935, 938; Sherar v. Besse, 07- 2003, p. S ( La. App. 1 Cir. 8/ 12/ 09) 2009 WL 2461303 ( unpublished opinion), wNit denied, 09- 1993 ( La. 11/ 20/ 09), 25 So. 3d 799; , 7ones v. McDonald' s Corp., 618 So. 2d 992, 996 ( La. App. 1 Cir. 1993); see also La. Code Civ. Pro. art. 801. Mrs. Woodard attempts to assert claims in a representative capacity on behalf of her deceased daughter. Pursuant to Article 685, representative claims of that nature may only be pursued by an appointed succession representative while a succession is under administration. Mrs. Woodard did not allege nor prove that a succession has been opened and is under administratiQn for her deceased daughter or that she had been app inted as the succession represeritative. Accordingly, she lacks the procedural capacity to file a suit in a representative capacity on behalf of her deceased rninor daugh.tep. See La. Ca`v. Code art. 685; Horrell, 808 So. 2d at 369 ( plaintiff who was not the appointed succession representative lacked the legal capacity to file suit on behalf of the succession). Accordingly, we find the trial court properly granted the exception as to any claims filed by Mrs. Woodard in a 6 purely representative capacit3 on behalf of' her deceased minor daughter. However, the dismissal of thes claims shoufci have been wiihout prejudice. When a suit is dismissed fox failure of a party to comply with a judgment sustaining a dilatory exception and ordering the plaintiff to remove the objectiqn raised by the exception, the dismissal must be without prejudice. Lemoine v. Roberson, 366 So. 2d 1009, 1012 ( La. App. 1` C,ir. 1978) where plaintiff lacked procadural capacity to bring action on behalf of hex child because she had never qualified as tutrix of the minor, dismissal of the suit should have been without prejudice). The trial court' s judgment ardering dismissal of Mrs. Woodard' s claims in a representative capacity on behalf of her deceased rninor daughter will be amended accordingly. C. Claims Filed in Individual Capacity The exception of lack of procedural capacity was directed at " the claims of the plaintiff, plaintiffs' Evorjia and requested that the trial Woodard" amended petition with prejudice." court dismiss Pursuant to that request, the trial court sustained the exception and dismissed " plaintiffs' claims" with prejudice. We find that the trial court erred in dismissing all of plaintiffs' claims. The original petition pro ides that it was filed by Mrs. Wooaard as " a major individual, domiciled in the Parish of East Baton Rouge, City of Baton Rouge, State of Louisiana, for and on behalf of her deceased minor daughter and th ough her undersigned attorney . . ." 'This introductian is foliowed by detazled facttual allegations about her daughter' s medical treatrnent and assaciated complications that ultimately led to her death. ' The petition further provides, " Plaintiff itemizes the damages . . . which she is entitled to recover as a result of the death of her minor daughter, as follows: a. Mental anguish, grief, pain, sufferings; b. Loss of en oyment of life; and emotional distress and c. Loss of life; and :. d. M dical e. As weil as other le ientis f personal fnjury damages to be skg The c#' award a coi defendants, at yv titic x r cUn unsatc nant nse[ lae tr«; sho ld fi1 s rna taz pr ceed to Lrial. ludes iarrza. ry y and ray r tor r flielF kia inalu les a request for " an t3: s ly, sed er f t; v Fi air C+; r x th r. jia wroragfus Wn death af c ard, her n against ugEter a d survival action in ari amount io be dettrncined a.e tr afl." a A pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice. La. Code Civ. Pro. art. 865; First Nat. Bank of Picayune v. Pearl River Fabricators, Inc., 06- 2195 ( La. Construing the petition in its entirety, we fmd the 11/ 16/ 07), 971 So. 2d 302, 308. allegations are sufficient to et forth claims by Mrs. Woodard in her individual capacity. A connpetent major and ity capa<; to sue. , a. ode cor apetent em ncipated mii or have the procedural C'i. Pa c,. 6_ . art. f1 . at arai pe. sord u hc k as reached rriajority has capaciriy to m.ak a. l zorts ofjFaridie al acts, unless s tka t vvise pr vidEd legislation. by La. Civ. Code . b. rs. - oca iard' s rocedzaral capa4izy to pursue her individual claims is presuzrxed ibecause it was not ahallenged by the defendants in the exception of lack of procedural capacity. See La. Code Ci-. Pro. art. 855; HorrelE, 808 So. 2d at369. Accordingly, the trial court erred to the extent it granted the exception o ¬ lack of procedural capacity and dismissed Mrs. Woodard' s clairns pursued in her individua capacity. 4 A su.rv? val ac4ion eeaider Louisiana Civil Code arEicle ) 31;. 1 is not a claim purs ed zn a action granted capaeity or bek, al af` the q.eceased vic*.m, Razher, it is a ause : desi nated baneficiaries recover tke darixa e t at a pe rso s. fferzd and vvould have epresentakive to certain been entitled 8o recover ;&om a t r f asor, i* tlae persc*n had 1 ved. See Irc re 3rex er, QS- 0666 La. App. 1 C:. SialQ6), 934 Sc. 2d $ 23, 826, writ Pr? ea', O6-? 290 FLa, 9,/15i06y, 936 So. 2d 12'$. Simifl rly; t rficl 231 S. Z gr: ats a `° wrongful deaih aitcian" to ihe saKiae benefici rz s to reco er such clazreages as the benei:ciaxies hav; suffered 'ai a person 3ies as a tesuit cf a iosf. In re B wer, 934 c;. 2d at 82? 8 C`( jtif'LL The ? far h :, sustained, t-ie e c ptio the claim iiled 1 d° 3 I! a. xia; a ai cat, th 4ria ccuri zs aifrmed te the extent it a a fn; t1 e t iectYOn c lack f pr cedural capacity as to r y M. s. i V clara in a ar" Iy repx sentati e ca acgty on behalf of her deceased manar laughter, but the j zd ta ent i amended t provide that the dismissal of those claims sha11 be without prejazdice. The judgment is reversed to the e ent it dismissed Mrs. Woodard' s claims filed in her individual capacity, incl-ading the survival action pursuant to Loixisiana Civil Code article 2315. 1 and the wrongful death action pursuant to Louisiana Civil Code article 2315. 2. Costs of this appeal' are assessed to James Robert Upp, Jr., M.D., and Our Lady of the e:-. TFi.s matter is remanded for further proceedin s in Lake Regional M dical Cen± accordance herewith. AFFIRMED IN PART, ANZENDED I i PART, REVERSED IN PART, AND REMANDED. 9

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