Joseph Miller, Jr., M.D. and Board of Supervisors of Louisiana State University and Agricultural and Mechanical College Versus Joseph C. Larre and Ashley D. Nichols as Counsel for/and Monique Evans, Wife of/and John Evans, Individually and on Behalf of Aiden Evans ( 2019 )

JOSEPH MILLER, JR., M.D. AND BOARD OF NO. 19-CA-208
SUPERVISORS OF LOUISIANA STATE
UNIVERSITY AND AGRICULTURAL AND FIFTH CIRCUIT
MECHANICAL COLLEGE
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
JOSEPH C. LARRE AND ASHLEY D.
NICHOLS AS COUNSEL FOR/AND
MONIQUE EVANS, WIFE OF/AND JOHN
EVANS, INDIVIDUALLY AND ON BEHALF
OF AIDEN EVANS
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 743-423, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
December 11, 2019
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson
AFFIRMED
RAC
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLEE,
JOSEPH MILLER, JR., M.D. AND BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND
MECHANICAL COLLEGE
Katherine B. Muslow
Meredith A. Cunningham
COUNSEL FOR DEFENDANT/APPELLANT,
JOSEPH C. LARRE PERSONALLY ON BEHALF OF MONIQUE, JOHN AND
AIDEN EVANS, AND J LARRE LAW FIRM LLC
Joseph C. Larre'
CHAISSON, J.
In this nullity action of a prior medical malpractice judgment by default,
Joseph C. Larre, Monique Evans, and John Evans, appeal a summary judgment in
favor of Dr. Joseph Miller, Jr. and the Board of Supervisors of Louisiana State
University and Agricultural and Mechanical College (“LSU”) that declared the
prior medical malpractice judgment by default against Dr. Miller an absolute
nullity. Mr. Larre and the Evans further appeal the denial of their cross-motion for
summary judgment. For the reasons that follow, we affirm the judgment of the
trial court.
FACTS AND PROCEDURAL HISTORY
On October 30, 2008, John Evans and his wife, Monique Evans, filed suit on
behalf of themselves and their minor child against Dr. Joseph M. Miller, Jr.,
alleging that Dr. Miller had committed medical malpractice regarding advice and
recommendations that he gave to the Evans regarding termination of Mrs. Evans’
pregnancy.1 The Evans’ petition indicated that it was filed pursuant to La. R. S.
40:1299.41, et seq., which is the Louisiana Medical Malpractice Act (“LMMA”)
for private physicians.2 After the citation to Dr. Miller was returned by the
Jefferson Parish Sheriff as “unserved,” the Evans requested the appointment of a
special process server to effectuate service.
After the return of service by the special process server was filed indicating
personal service upon Dr. Miller by “Drop Service,” and the delays for answering
the petition by Dr. Miller had expired with no answer being filed, the Evans
proceeded to confirm a default judgment against Dr. Miller in the underlying
1
The Evans had previously requested the formation of a medical review panel pursuant to the Louisiana
Medical Malpractice Act, but were advised by the Division of Administration that Dr. Miller was not
covered under the Act.
2
La. R.S. 40:1299.41 to 1299.49 was redesignated as La. R.S. 40:1231.1 to 40:1231.10 by H.C.R. No. 84
of the 2015 Regular Session, effective June 2, 2015.
19-CA-208 1
medical malpractice action, which judgment against Dr. Miller in the amount of
$47,850 was rendered on January 3, 2012.
On October 16, 2014, after learning of the default judgment as the result of
an attempted garnishment of Dr. Miller’s wages, Dr. Miller and his employer,
LSU, filed suit against the Evans and their attorney, Joseph C. Larre, to have the
January 3, 2012 default judgment annulled. In their petition to annul, Dr. Miller
and LSU alleged that the default judgment was an absolute and/or relative nullity
for four reasons: first, Dr. Miller, as a state-employed physician working within
the course and scope of his employment at the time that he treated Mrs. Evans
cannot be cast in judgment pursuant to the Louisiana Malpractice Liability for
State Services Act (“MLSSA”); second, LSU, as the employer of Dr. Miller, is an
indispensable party to the action against Dr. Miller that the Evans failed to join in
the litigation; third, because they failed to join an indispensable party, the
procedures used by the Evans to obtain the default judgment were fatally flawed;
and fourth, the Evans failed to serve Dr. Miller with citation and process in the
underlying malpractice action.
On July 31, 2017, Dr. Miller and LSU filed a motion for summary judgment
asserting that there were no genuine issues of material fact regarding the four
deficiencies to the default judgment as alleged in their petition to annul and that
they were therefore entitled to judgment as a matter of law declaring the January 3,
2012 default judgment a nullity. In response, on January 9, 2018, Mr. Larre and
the Evans filed an opposition to the motion for summary judgment and also filed
their own motion for summary judgment, apparently seeking to have the petition to
annul dismissed.
After hearing the motions for summary judgment, the trial court, on May 24,
2018, granted Dr. Miller’s and LSU’s motion for summary judgment, declaring the
19-CA-208 2
January 3, 2012 default judgment absolutely null, and further denied Mr. Larre’s
and the Evans’ motion for summary judgment. It is from this May 24, 2018
judgment that Mr. Larre and the Evans now appeal.
DISCUSSION
Mr. Larre and the Evans raise the following issues in their assignments of
error: 1) whether genuine issues of material fact exist that preclude summary
judgment in favor of Dr. Miller and LSU; 2) whether Dr. Miller acquiesced in the
judgment by not attempting to enjoin its enforcement; 3) whether LSU was an
indispensable party to the underlying litigation; 4) whether Dr. Miller and LSU
have shown that fraud or ill practices were used to obtain the judgment; 5) whether
the trial court erred in denying Mr. Larre’s motion for summary judgment
regarding Dr. Miller’s and LSU’s claim for legal malpractice against him;3 6)
whether the claim of Mr. Evans, who did not have a doctor/patient relationship
with Dr. Miller, sounds in medical malpractice; and 7) whether the claim of Mrs.
Evans was not entirely a medical malpractice claim as it “did not arise completely
out of a doctor/patient relationship.”4 Because we find it dispositive of this appeal,
we first address the issue of whether LSU was an indispensable party to the
underlying litigation.
La. C.C.P. art. 641 provides, in pertinent part, that a person shall be joined as
a party in the action when “[i]n his absence complete relief cannot be accorded
among those already parties.” La. R.S. 40:1237.1(G), which is part of the MLSSA,
provides, in pertinent part, that “[t]he state shall pay any damages, interest, cost of
investigation and defense, and any other costs in connection with any claim lodged
3
We note that a review of the Suit to Annul Judgment reveals that no legal malpractice claim was filed by
Dr. Miller or LSU against Mr. Larre.
4
We note that as to assignments six and seven, relating to whether the Evans’ claims sounded in medical
malpractice, the Evans specifically waived those arguments before the trial court and are thus precluded
from raising those issues for the first time on appeal before this Court.
19-CA-208 3
against any state health care provider (person covered by this Part) for an alleged
act of medical malpractice ... .” Thus, the Louisiana Supreme Court has held that
“in a medical malpractice suit brought against the state and a qualified state health
care provider, if the court finds the state health care provider committed medical
malpractice, judgment must be entered for the successful claimant against the state
alone.” (emphasis added). Detillier v. Kenner Regional Medical Center, 03-3259
(La. 7/6/04), 877 So.2d 100, 111.
Under the express provisions of the MLSSA, a state health care provider is
insulated from judgment for his medical malpractice; only his employer, the State,
may be cast in judgment for the state health care provider’s medical malpractice.
Consequently, in claims of medical malpractice against a state health care provider,
the State is a “party in whose absence complete relief cannot be accorded among
those who are parties,” making the State an indispensable party to that litigation.
See La. C.C.P. art. 641. Moreover, it is well established that “[a]n adjudication
made without making a person described in article 641 a party to the litigation is an
absolute nullity.” Gettys v. Wong, 13-1138 (La. App. 4 Cir. 5/7/14), 145 So.3d
460, 465, writ denied, 14-1178 (La. 9/19/14), 149 So.3d 247.
In this case, there is no dispute that Dr. Miller was a state health care
provider at the time that he rendered treatment to Mrs. Evans. There is also no
dispute that his employer, LSU, was not named as a defendant in the suit for
medical malpractice brought by the Evans against him. Consequently, we find that
LSU was an indispensable party to the litigation and the Evans’ failure to join LSU
as a defendant is a fatal defect that renders the resulting default judgment an
absolute nullity. Having so found, and finding this determination to be dispositive
of this appeal, we pretermit any discussion of Mr. Larre’s and the Evans’
remaining assignments of error.
19-CA-208 4
We conclude that the trial court did not err in granting Dr. Miller’s and
LSU’s motion for summary judgment, declaring the January 3, 2012 default
judgment against Dr. Miller an absolute nullity.
AFFIRMED
19-CA-208 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 11, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-208
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
CARLTON JONES, III (APPELLEE)
MAILED
JOSEPH C. LARRE' (APPELLANT) MEREDITH A. CUNNINGHAM (APPELLEE) JAMES E. MARCHAND (APPELLEE)
ATTORNEY AT LAW KATHERINE B. MUSLOW (APPELLEE) JOHANNA A. POSADA (APPELLEE)
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