Betty Pope, Individually and on behalf of Ernest Pope, Sr., Donnie Byrd, James Larry Pope, Judy Williams, Nancy Buhler, and Glenda Lawrence VS Jonathan Roberts, MD.; Kenneth Blue, MD; Harold Wexler, MD; and Our Lady of the Lake Regional Medical Center

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2013 CA 1407 BETTY POPE, INDIVIDtiALLY AND OlVT BEHALF OF ERNEST POPE, SR., DONNIE BYRD, JAMES LARRY POPE, JUDY WILLIAMS, NANCY BUHLER, AND GLENDA LAWRENCE VER5US JONATHAN ROBERTS, MD, KENNETH BLUE, MD, HAROLD WEXLER, MD, AND OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER f " l i Judgment Ren lered: G. k ' X' k 1F ` iC iC ] ` APR 1 s 2a 9! S iF Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C564308 The Honorable Todd Hernandez, ,Tudge Presiding: x c d rf s ` i - _ , 9-> Counsel for Plaintiffs/Appellants Lynn E. Williams Jeffrey ti,y G. Rice Betty Pope, et al. Baton Rouge, Louisiana Vance A. Gibbs Counsel for Defendants/Appellees Baton Rouge, Louisiana Kenneth M. Blue, Jr., M.D. and Harold D. Wexler, M.D. Daniel A. Reed Baton Rouge, Louisiana x * d' , VO? N^ BEFORE: K . (. x * O v C,U/1S ยข N, HIGGINBOTHAM, AND THERIOT, JJ. s THERIOT, J. Plaintiffs, the widow and surviving children of a deceased patient, appeal a judgment sustaining a declinatory exception raising the objection of insufficiency of service of process and dismissing their malpractice claims without prejudice pursuant to La. C. C.P. art. 1672( C). We vacate and set aside the preliminary default and confirmation of default judgments and affirm the judgment sustaining the declinatory exception and dismissing plaintiffs' claims against the defendants, Drs. Kenneth Blue and Harold Wexler. FACTS AND PROCEDURAL HISTORY Plaintiffs, Betty Pope, Donnie Byrd, James Larry Pope, Judy Williams, Nancy Buhler, and Glenda Lawrence, the surviving spouse and children of Ernest Pope, Sr., filed a suit alleging medical malpractice against Our Lady of the Lake Regional Medical Center (" OLOL") Jonathan Robertsl, Kenneth Blue, and Harold Wexler. and Drs. Plaintiffs fax filed their petition on February 21, 2008, and requested that service on defendants be withheld. On June 6, 2008, OLOL filed a declinatory exception raising the objection of insufficiency of service of process due to the plaintiffs' failure to request serviee on OLOL within ninety days of commencement of the action in accordance with La. C. C.P. art. 1201( C). OLOL obtained a dismissal of plaintiffs' claims against OLOL without prejudice on August 16, 2008. Plaintiffs did not request service on Drs. Blue and Wexler until February 22, 2011. The Sheriff' s return shows personal service was made on both Dr. Blue and Dr. Wexler on March 1, 2011 at 8080 Bluebonnet Boulevard, Suite 3000, Baton Rouge, Louisiana. Plaintiffs took a 1 There is no mention in the recard of Dr. Roberts ever being served with the suit or of any judgment against him. 2 preliminary default against Drs. Bl e and V4'exler on June 15, 2011. Plaintiffs confirmed the prelimiriary default on the issue of liability on August 23, 2011, and the duty judge refer!red the matter to the originallyallotted judge for confirraaation oi che d.efault judgment on damages. On February 17, 2( 12, the plaintiffs azafirmed the default judgment and were awarded $ 350, 000. 00 in dama es against I r. Blue and $ 350, 000.00 in datnages against Dr. Wexler. On March 6, 2012, Drs. Blue and Wexler filed a motion for new trial, a declinatory exception raising the objection of insufficiency of service of process, and a motion, to dismiss the plaintiffs' petition. The doctors allege that the Sheriff' s return was incorrect and that there was no personal service. Drs. Blue and Wexler offered their affidavits attesting that they retired from the practice of inedicine on April 30, 2008 and December 31, 2009, respectively, and the address lis ed for service on 1Vlarch 1, 2011 on the Sheriff s return was Louisiana Urology, their former place c f business. Both doctors attest that they vere noi pres rx at Louisiana Urology on March l, 2011 and were not served vith tha snif. A ter a hearing, the trial court sustained the declinaiory- exception and, finding that the default judgment was rendered in errar; granted the motion to dismiss pursuant to La. C. C.P. art. 1672( C). The plaintiffs filed a morion for new trial, alleging that since the dismissal of their claims, they have discovered that Drs. Blue and Wexler sued their attorney for legal malpractice for his failure to timely file responsive pleadings upon receiving notice of the medical malpractice suit. Plaintiffs allege that this suit for legal malpractice proves that Drs. Blue and Z Louisiana Code of Civil Procedure article 1672( C) provides for an involuntary dismissal without prejudice where a plaintiff has not requested service in accordance with the requirements ofLa. C. C. P. art. 1201( C). 3 Wexler had notice of the malpractice suit against them. The trial court denied the motion for new trial, and this appeal followed. ASSIGNMENTS OF ERROR On appeal, the plaintiffs allege that the trial court erred: ( 1) in sustaining the declinatory exception since it was not filed until after the confirmation of the default judgment, ( 2) in finding that there was no personal service on Drs. Blue and Wexler, and ( 3) in failing to grant their request for a new triaL DISCUSSION Citation and service thereof are essential in civil actions, and without them all proceedings are absolutely null. La. C.C. P. art. 1201( A). Service shall be requested on all named defendants within ninety days of commencement of an action. La. C. C.P. art. 1201( C). This requirement is waived unless the defendant files a declinatory exception specifically alleging the failure to request service in accordance with La. C. C.P. art. 928. Id. Article 928 requires that the declinatory exception be filed in any event prior to the confirmation of a default judgment. It is undisputed that plaintiffs did not request service on Drs. Blue and Wexler within ninety days of commencement of the action. When plaintiffs did request service on Drs. Blue and Wexler, over three years after filing suit, the address at which fhey requested service was the former place of business of the then- retired docYors. Personal service is made when a proper officer tenders the citation ar other process to the person to be served. La. C. C. P. art. 1232. Personal service may be made anywhere the officer making the service may lawfully go to reach the person to be served. La. C. C.P, art. 1233. While a party may be served at his place of business, such service is only effected by serving 4 the party personally. Roper v. Dailey, 393 So. 2d 85, 87 ( La. 1980). Service on a physician may only be effected by seruing the physician' s clerical employee when the physician is not a party to the action. La. C.C.P. art. 1236. Service shall be made by i}.e skietiff of' the parish wher ser; ce is to be made or of the parish where t'rie actioi is pending. La. C. C.P. art. 1291. Louisiana Code of Civil Procedure article 1292 provides: The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. Although the recitation on the return of the citation is presumed to be correct, the presumption is rebuttable. The party attacking it bears the burden of proving its incorrectness by a preponderance of the evidence. Hall v. Folger Coffee Co., 03- 1734 ( La, 4/ 14! 04), 874 So. 2d 90, 97; Roper, 393 So. 2d 88. In general, the uncorroborated testimony of the party attacking service, standin alone, is insufficient to rebut the presumption of prima facie correcmess accorded the return. State ex rel. Dept. of Social Services, Offce of Family St pport, Support Enforcement Services v. Langlois, 03- 849, p. 3 ( La.App. 1 Cir. 3/ 3/ 04), 874 So. 2d 216, 217- 18. 0 The appellate court' s review of factual findings is governed by the manifest error- clearly wrong standard. The two- part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the recard for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 5 505 So. 2d 1120, ll27 ( La. 1y 7). Thus, if thez-e is no reasonable factual basis in the record for the trial court' s finding, no additional inquiry is necessary to conclude thexe Luas manif:: t rr r. However, if a reasonable factual basis exists, an appeilate oazrt may set aside a tnai court' s factual finding only if, after reviewing the record i.n ts entirety, it deterrnines the trial court' s finding was clearly wrang. See Stobart v. State, through Dept of Transp. and Dev., 617 So. 2d 880, 882 ( La. 1993). Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact' s findings demand great deference and are virtually never manifestly rroneous or clearly wrong. Secret Cove, LLC v. Thomas, 02- 2498, p. 7 ( La.App. 1 Cir, ll/7/ 03), 862 So. 2d 1010, 1017, writ denied, 04- 0447 ( La. 4/ 2/ 04), 869 So. 2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder' s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989); Barham & Arceneaux v. Kozak, 02- 2325, pp. 14- 15 ( La.App. 1 Cir. 3/ 12/ 04), 874 So. 2d 228, 240, writ denied, 04- 0930 ( La. 6/ 4/ 04), 876 So. 2d 87. Tunnard v. Simply Southerr: Homes, L.L.C., 0' 7- 0945, p. 4 ( La.App. 1 Cir. 3/ 26/ 08), 985 So. 2d 166, 169 Given that the address at which personal service was allegedly made was the doctors' former place of business and the doctars had retired from the practice of inedicine quite some time beiore service was allegedly made, we find no manifest error in the trial court' s finding that the doctors proved by a preponderance of the evidence that the Sherif s return of service was incorrect and there had been no personal service on the doctors. 6 In granting the declinatory exception, the trial court acknowledged the requirement that the decl'anatory exception be raised prior to the confirmation of a default judgment, but found that " the default judgment was granted in error" since there was no service on the defendants. Thus, the trial court impli itly recogniz d the nullity of the underlying judgnent, although the judgment rendered by the trial court did not explicitly declare the default judgment to be nu1L Louisiana Code of Civil Procedure article 2164 gives an appellate court the power to render any judgment that is just, legal, and proper upon the record on appeal. Valid service never having been made, the default judgment against the defendant doctors is an absolute nullity.3 Under the circumstances presented in this case, we conclude that the application of La. C. C. P. art. 2164 militates in favor of this court relief granring to the defendants. See Dicta Realty Associates v. Conrad, 230 So.2d 595 ( 1970); Cycle Sport, LLC v. .Iones, 06- 2402 ( La.App. 1 Cir. 9/ 14/ 07), 2007WL2685160 ( unpublished). Therefore, we vacate and set aside the 7une 15, 2011 judgm,ent of preliminary default, the August 23, 2011 judgment confirming th defaulti n ihe issue of liability and the February 17, 2012 judgment confirrning the preliminary default against Drs. Blue and Wexler. We affirn the February 2J, 2013 ,judgment sustaining the declinatory exception and dismissing plaintiffs' claims without prejudice. Plaintiffs alsa allege on appeaI t iat ttle trial court erred in c enying its motion for new trial based orl the discovery of new evidence. In their motion for new trial, plaintiffs allege that the defendant doctars had filed a 3 When the appellate court notices an absolute nullity, the court is likewise empowered to vacate or correct the judgment on its own motion. See Mack v. Wiley, 2007-2344 La.App. 1 Cir. 5/ 2/ 08), 991 So. 2d 479, 486, writ denied, 2008- ll81 ( La. 9/ 19/ 08), 992 So. 2d 932; Winder George, 2007- 0314, p. 5 & n. 6 (La.App. 1 Cir. 12/ 21/ 07), 2007 WL 4532139 ( unpublished) ( Pursuant t the appellate court' s authority undex La. C. C. P. art. 2164 to render a judgment " which is just, legal, and proper upon the record on see also v. appeal," the court amended a judgment ta vacate the absolutely null portion.) 7 legal malpractice suit aga: nst their attorney in which they alleged that their attorney had received a copy o the p uition 7n tne xza.edicai malpractice suit, but had failed to ile responsive pleadings, r svalting in a default judgment against the doctors. that Drs. Blue and Pl intiffs argue that the legal malpractice suit proves Wexler riad lmawlec prior to the default jud f the med` cal nalpractice suit a n nt, A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence or when the party has discovered new evidence which he could not have obtained before or during trial. La. C. C. P. art. 1972. A new trial may be granted if there is good ground therefor. La. C. C. P. art. 1973. Louisiana jurisprudence is clear t1 at a new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a an: scaarage e, f' justice. Bush v. Cannata' s Supermarket. Inc., 612 So. 2d 794, 7R7 ( La.App. 1 Cir. 1992). However, on appeal, the denial of a motion for new trial should nox be reversed unless there has been an abuse of the trial court' s discretion. McCrcry u J/H/J, Inc., 99- 2283, ( La.App. 1 Cir. l ll3/ 00), 769 So. Zd 12i3, 1277. The fact that the doctors' attomey may have received a copy of the medical malpractice suit does not change the fact that the doctors were not properly served with the suit and any judgment against them without service is null. Thus, we find no abuse of discretion in the trial court judgment denying plaintiffs' motion for new triaL DECREE The June 15, 2011 judgment of preliminary default, the August 23, 2011 judgment confirming liability and the February 17, 2012 judgment confirming the default judgment taken against Drs. Blue and Wexler are 8 vacated and set aside. The Fe ruary- 20, 2013 judgment sustaining the declinatory exception and dismissing plaint. ffs' claims withouY prejudice is affirmed. Costs of ihis appeal are to be borne by the plaintiffs. JUDGMENT OF DISMISSAL AFFIRMED; JUNE 15, 2011 PRELIMARY JUDGMENT OF JUDGMENT CONFIRMING DEF L?LT, I)k-FAUL'T ON GUST AL? THE 23, ISSUE 2011 OF LIABILITY, AND FEBRUARY 17, 2012 JUDGMENT CONFIRMING DEFAULT JUDGMENT ARE ALL VACATED. 9 FIRST CIRCUIT BETTY POPE, ET AL. COURT OF APPEAL VERSUS STATE OF LOUISIANA JONATHAN ROBERTS NO. 2013 CA 1407 M.D., ET AL. KLJHN, J., dissenting. The proper method for contesting the sufficiency of service of process is by filing a declinatory exception, which is a special pleading that must be filed within a prescribed period. See La. C. C. P. art. 921 et seq. Article 928 mandates that a declinatory exception must in all events be filed priar to the confirmation of a default judgment. Once a default judgment has been rendered, the defendant' s sole remedy for raising this issue is to file a suit to annul the judgment. See Rivera v. Blossom, 03- 1629 ( La. App. 4th Cir. 4/ 7/ 04), 872 So. 2d 541, 543; Guidry' s Seafood Distributors, Inc. v. Farmers Seafood Company, Inc., 99- 1005 ( La. App. 3d Cir. 12/ 15/ 99), 759 So. 2d 806, 807, writ denied, 00- 0837 ( La. 5/ 12/ 00), 762 So. 2d 15. In the instant case, the issue of whether the default judgment against defendants is an absolute nullity due to improper service upon defendants may be a viable issue. Even so, that issue must be raised in a procedural proper manner. The declinatory exception filed by defendants in this case was not filed until after plaintiffs had already confirmed a default judgment against them. Accordingly, it was improper for either the district court or this Court to consider the untimely exception. See Chatoney v. Safeway Insurance Company, 00- 1189 ( La. App. 3d Cir. 6/ 13/ O1), 801 So.2d 448, 452, writ denied, 01- 2057 ( La. 11/ 2/ O1), 800 So.2d 875. Following the confirmation of the default judgment against them, defendants' sole recourse was to file suit to annul that judgment, which they failed to do. Absent the filing of a suit in nullity, the issue of service upon defendants cannot properly be addressed. Allowing defendants to circumvent the requirement that a suit to annul be filed has the effect of totally eviscerating that requirement and seriously impairing the functioning of the procedural framewark established under our law. Moreover, I also disagree with the majority' s conclusion that annulment of the default judgment is appropriate pursuant to Article 2164 since, in doing so, the majority is rendering a judgment that is itself procedural defective, the proper procedure for raising this issue not having met. Additionally, neither the majority opinion nor the record discloses any specific circumstances mitigating in favor of annulling the default judgment pursuant to Article 2164. For these reasons, I respectfully dissent. 2