In the Matter of the Mental Health of D.C. ( 2019 )


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  •                               STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    NO. 2019 CA 0938
    IN THE MATTER OF
    THE MENTAL HEALTH OF DERRICK COLE
    Judgment Rendered:    DEC 2 7 2019
    On Appeal from the
    20th Judicial District Court
    Parish of East Feliciana, State of Louisiana
    No. 983157
    The Honorable William G. Carmichael, Judge Presiding
    Laura Picard                                            Attorneys for Appellant,
    Pineville, Louisiana                                    Derrick Cole
    and
    Henry Allyn Sale
    Shreveport, Louisiana
    Stephanie M. Borghardt                                  Attorneys for Appellee,
    Neal R. Elliott Jr.                                     Louisiana Department of
    Baton Rouge, Louisiana                                  Health, Office of
    Behavioral Health
    BEFORE: WHIPPLE, C. J., GUIDRY AND CRAIN,' JJ.
    1
    Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana
    Supreme Court.
    CRAIN, J.
    Derrick Cole appeals the trial court' s April 5, 2019 judgment ordering his
    commitment to the Louisiana Department of Health (LDH). We affirm.
    FACTS AND PROCEDURAL HISTORY
    On August 20, 2018, the assistant clinical director for the Eastern Louisiana
    Mental      Health   System ( ELMHS)      filed   a   petition   seeking   Cole' s   judicial
    commitment.      The petition alleged Cole was a resident of ELMHS and required
    further treatment due to mental illness. The trial court signed a judgment September
    75 2018, committing Cole to LDH' s custody for a period not to exceed one hundred
    eighty days. Cole appealed and this court affirmed the judgment. See Matter of
    Commitment of Cole, 18- 1760 ( La. App. 1 Cir. 4/ 17/ 19), 
    276 So. 3d 601
    .
    This court set forth the following pertinent factual and procedural history
    relative to the proceedings:
    At the time the commitment proceeding was filed, Cole was a
    twenty-nine- year- old male with a history of bipolar disorder,
    intermittent explosive disorder, and an intellectual disability. For
    approximately seven years, beginning January 21, 2010, Cole resided
    at Pinecrest Supports and Services in Pineville, Louisiana ( Pinecrest),
    but the facility was no longer able to control his behavior. On March
    31,    2017, he was admitted to Central State Hospital ( Central) for
    stabilization.    While at Central, Cole exhibited aggressive behavior
    toward the staff and was extremely impulsive, resulting in the facility' s
    medical director filing a petition for judicial commitment on May 18,
    2017, in the 9th Judicial District Court for Rapides Parish, Docket No.
    5762 ( 9th JDC action).    Cole remained at Central for approximately a
    year before he was discharged to a less restrictive environment.
    It is unclear from the record whether the            less restrictive
    environment in which Cole was placed was a group home or his own
    apartment with support staff, as the record contains evidence as to both
    living arrangements. It is clear that pursuant to the Developmental
    Disability Law, [ Louisiana Revised Statutes] 28: 451. 1- 455. 2, Heaven
    On Earth Network, Inc. ( Heaven On Earth) provided Cole support in
    the less restrictive environment.    Heaven On Earth eventually became
    unable to assist Cole due to his behavior. Cole exhibited aggressive
    and violent behavior, made threatening statements, and the police had
    to be called on several occasions. There was also evidence that Cole
    ran away, was involved in fights, became suicidal, drank chemicals, and
    threatened Heaven On Earth' s staff. By correspondence dated July 12,
    2018, Heaven On Earth notified Cole that it could no longer be his
    2
    provider due to his aggressive and violent behavior and that the last date
    it would provide services would be August 9, 2018. The plan
    coordinator, Medical Resource and Guidance, was also informed of this
    decision. Cole was further instructed of his right to appeal the decision.
    Medical Resource and Guidance attempted to find Cole another
    provider, but was unsuccessful.
    Cole testified that after an altercation with the Heaven On Earth
    staff, the police were called and took him to Lake Charles Memorial
    Hospital (Lake Charles Memorial). Cole was subsequently admitted to
    Lake   Charles     Memorial     pursuant    to          Physician' s
    a
    Emergency
    Certificate (PEC) dated August 10, 2018, and a Coroner' s Emergency
    Certificate ( CEC) dated August 11,         2018,      for refusing to take his
    medications,
    as well as hostility and homicidal threats to the group
    home staff. On August 17, 2018, Lake Charles Memorial requested
    that Cole be admitted to [ ELMHS]. Cole was admitted to ELMHS
    pursuant to a PEC dated August 17, 2018, signed by Dr. Muhummad
    Ahmed, a board certified psychiatrist who treated Cole at ELMHS. Dr.
    Ahmed testified that Lake Charles Memorial' s employees could not
    control Cole' s behavior, noting in the PEC that Cole had a history of
    bipolar disorder, intermittent       explosive        disorder,    and   intellectual
    disability. A CEC was signed on August 18, 2018.                    On August 20,
    2018, the assistant clinical director of ELMHS filed the current petition
    for judicial commitment in the 20th Judicial District Court, Parish of
    East Feliciana (20th JDC action).
    Dr. Ahmed testified that when Cole arrived at ELMHS, he was
    extremely irritated and having paranoid and suicidal thoughts. Dr.
    Ahmed noted that Cole had a long history of bipolar disorder and
    cognitive    impairment.      Because      of the violent and threatening
    statements Cole made while at the group home, at Lake Charles
    Memorial, and to Dr. Ahmed, Cole was assigned someone to be arms -
    length from him at all times. Cole eventually improved to the point that
    he only needed continuous visual observation, but he continued to act
    out and was involved in several fights.                Dr. Ahmed reduced the
    continuous visual observation when Cole agreed not to act out.
    However, Dr. Ahmed testified that Cole remained impulsive and
    violent.
    Dr. Ahmed further testified that bipolar disorder is a serious
    mental illness and that Cole is a danger to himself and others and is
    gravely disabled. Cole also suffers from cognitive impairment.                   Dr.
    Ahmed      believed that   Cole' s   violent,    impulsive        behaviors   would
    continue and that he would not take his medication in a less restrictive
    environment.
    Cole testified that he had lived at Pinecrest for seven years. He
    was transferred to Central after he had an incident that involved
    throwing chairs.   He testified that security personnel then " ran over
    him" or " ran into him" with a John Deere all -terrain vehicle, causing
    him to scrape his arm resulting in treatment at a hospital. Cole stated
    that he was discharged from Pinecrest to Central involuntarily after he
    was forced to sign a piece of paper, even though he testified that he can
    3
    barely read. Central eventually discharged Cole, and he returned to his
    own apartment, with staff of Heaven On Earth. He stated that the staff
    either slept or left him on his own. He had numerous conflicts with the
    staff and claimed he sprayed a fire extinguisher at one of them who was
    trying to fight him. The police were called, and he was taken to Lake
    Charles Memorial. Lake Charles Memorial placed him in the Archer
    Institute,   the   psychiatric   ward       of   the    hospital.     He   became
    uncooperative and was transferred to ELMHS.                   Cole claims that a
    doctor at Lake Charles Memorial told him that he was discharged.
    The trial court found that Cole suffers from a mental illness that
    causes him to be gravely disabled, dangerous to others, and dangerous
    to himself. Cole was committed to the custody of LDH. The trial court
    signed a judgment in accordance with its oral ruling on September 7,
    2018, committing Cole to the custody of LDH ... for a period not to
    exceed one hundred and eighty days. The judgment continued Cole' s
    placement at ELMHS ...           until " appropriate      placement options are
    available through [ LDH]."
    Matter of Commitment of Cole, 276 So. 3d at 604- 06 ( footnotes omitted).
    On January 30, 2019, while that appeal was pending, the assistant clinical
    director for ELMHS filed a petition seeking Cole' s judicial commitment for another
    one hundred eighty days, alleging Cole required further treatment because of mental
    illness that contributed or caused grave disability. The trial court again appointed
    Dr. Ahmed to examine Cole and submit a written report detailing his findings. Cole
    sought a stay of the proceedings pending resolution of the appeal and filed
    exceptions of no cause of action, no right of action, and lis pendens. Cole fax -filed
    a motion to appoint a physician for an independent medical opinion, and answer and
    reconventional demand. LDH filed a motion to quash four subpoenas issued to it at
    Cole' s request.
    The trial court held a hearing April 5,                2019, on the motion to quash,
    exceptions, and petition for judicial commitment. The trial court did not consider
    the fax -filed pleadings,   stating they were without effect because the original
    pleadings were not filed with the clerk of court prior to the hearing. The trial court
    orally granted the motion to quash, overruled the exceptions, and, based on the
    evidence presented, ordered Cole' s continued commitment.                 Specifically, the trial
    M
    court found Cole suffers from mental illness that renders him unsafe, dangerous to
    others, and gravely disabled. On the same day, the trial court signed a written
    judgment ordering Cole' s commitment to LDH for a period not to exceed one
    hundred eighty days. The originals of the fax -filed pleadings were filed with the
    clerk of court later that day. On the motion for appointment of a physician for an
    independent medical opinion, the trial court wrote " DENIED" and noted the motion
    was moot because a judgment of commitment had been rendered.                            Cole now
    appeals. 2
    DISCUSSION
    Lis Pendens
    Cole contends the trial court erred in denying his exception of lis pendens,
    arguing the prior judgment ordering his commitment was pending before this court
    on appeal when the January 30, 2019 petition was filed.3
    When two or more suits are pending in Louisiana courts between the same
    parties in the same capacities and are based on the same transaction or occurrence,
    the defendant may have all but the first suit dismissed by filing a declinatory
    exception of lis pendens.         La. Code      Civ. Pro.    arts.   531,   925A( 3).     The test
    for lis pendens is whether a final judgment in the first suit would be res judicata in
    the second suit.      Aisola v. Louisiana Citizens Property Ins. Corp., 14- 1708 ( La.
    2
    The one -hundred -eighty -day commitment period provided in the judgment on appeal has
    expired.   In response to this court' s show cause order, the parties advised the state filed another
    petition for commitment, which prevented Cole' s discharge.       Because Cole remains in LDH' s
    custody, we find the issues raised herein are not moot; therefore, we maintain this appeal.      See
    Cat' s Meow, Inc. v. City of New Orleans, Dept. of Finance, 98- 0601 ( La. 10/ 20/ 98), 
    720 So. 2d 1186
    , 1194 ( instructing courts deciding whether a case is moot to consider whether there is a
    reasonable expectation the complained of violation will recur and whether there are unresolved
    collateral consequences);
    In re C.C., 15- 0140, 2015WL9435190, p. 3 ( La. App. 1 Cir. 12/ 23/ 15),
    writs denied, 15- 2251 ( La. 12/ 23/ 15), 
    184 So. 3d 687
    , 16- 0197 ( La. 3/ 4/ 16), 
    188 So. 3d 1055
    finding the appeal of a judgment ordering judicial commitment moot where the appellant was
    released from commitment without restriction, but recognizing conditional discharge would not
    render an appeal moot because onerous conditions continued to flow from the judgment on appeal).
    3
    Although the trial court' s judgment does not address the exceptions, silence in a judgment
    as to any issue before the trial court is deemed a rejection of that demand or issue. The exceptions
    are thus deemed denied. See Naramore v. Aikman, 17- 1621, 17- 1622 ( La. App. 1 Cir. 6/ 4/ 18), 
    252 So. 3d 935
    , 944.
    R
    10/ 14/ 15), 
    180 So. 3d 266
    , 269.    As with the exception of res judicata, the critical
    inquiry is whether the second suit asserts a cause of action that arises out of the same
    transaction or occurrence that was the subject matter of the first suit.         Pumpkin
    Mobile Home Park, LLC v. Harrison, 13- 1086, 2014WL647398, p.3 ( La. App. 1
    Cir. 2/ 18/ 14), writ denied, 14- 0828 ( La. 6/ 13/ 14), 
    140 So. 3d 1193
    ; see also La. R.S.
    13: 4231, comments - 1990, comment ( a).
    Cole argues this second judicial commitment proceeding should have been
    dismissed because it was filed while the prior appeal raising " the exact issues" and
    involving the same parties was pending.             While certainly related,      the   two
    commitment proceedings do not arise out of the same transaction or occurrence.
    This second judicial commitment proceeding seeks Cole' s commitment for the one -
    hundred -eighty -day time period following expiration of the judgment that was the
    subject of the prior appeal, based on Cole' s continued need for commitment. That
    is, both proceedings generally arise out of Cole' s mental health needs, but are
    specific to the needs exhibited at different time periods.
    Furthermore, Cole was committed pursuant to Louisiana' s Behavioral Health
    Law, which authorizes both a devolutive appeal of an order of commitment, and for
    an extension of the commitment period by the filing of a new petition for
    commitment prior to expiration of the existing order of commitment. See La. R.S.
    29: 56A and D.    Well-established principles of statutory interpretation undermine
    Cole' s argument that the second commitment proceeding, expressly authorized by
    0
    the same statute authorizing his appeal of the judgment in the first proceeding,
    should have been dismissed.'
    No Cause ofAction, No RLuht ofAction, Commitment Procedure
    and Motion to Quash
    Cole maintains he should have been committed under the Developmental
    Disability Laws, rather than the Behavioral Health Laws, arguing this has resulted
    in the denial of disability services to which he is entitled.                       This was the basis for
    Cole' s " Exception of No Cause/ Right of Action," which the trial court denied based
    on the face of the petition.          Cole contends the trial court erred in denying him an
    opportunity to present evidence before overruling his exception of no cause and no
    right of action, and erred in granting LDH' s motion to quash the subpoenas issued
    for the purpose of eliciting evidence in support of his exceptions.
    Cole similarly challenged the law applicable to his commitment in the prior
    appeal.       After thorough analysis of the issue,                this court concluded, " Both               the
    Behavioral Health Law and the Developmental Disability Law provide for
    commitment of an individual with a combination of a mental illness and an
    intellectual disability. Because Cole has both a mental illness and a developmental
    disability, we find that the appropriate commitment procedure was used by LDH."
    Matter of Commitment of Cole, 276 So. 3d at 612. For the same reasons, we find no
    error in the argument raised again in this appeal.
    4
    Legislation is   the   solemn   expression       of legislative   will;   thus,     the   interpretation
    of legislation is primarily the search for legislative intent. In re Succession of Boyter, 99- 
    0761 La. 1
    / 7/ 00), 
    756 So. 2d 1122
    , 1128.   The starting point for interpretation of any statute is the
    language of the statute itself, as the text of the law is the best evidence of legislative intent. See La.
    R.S. 1: 4 and 24: 177B( 1);   Rando v. Anco Insulations, Inc., 08- 1163, 08- 1169 ( La. 5/ 22/ 09), 
    16 So. 3d 1065
    , 1075.       Words and phrases shall be read with their context and shall be construed
    according to the common and approved usage of the language.                 La. R. S. 1: 3.   A statute must be
    applied and interpreted in a manner that is logical and consistent with the presumed fair purpose
    and intent of the legislature in enacting it. Harrah' s Bossier City Investment Company, LLC v.
    Bridges, 09- 1916 ( La. 5/ 11/ 10), 
    41 So. 3d 438
    , 447. When the language of the law is susceptible
    of different meanings, it must be interpreted as having the meaning that best conforms to the
    purpose of the law. La. Civ. Code art. 10. When the words of a law are ambiguous, their meaning
    must be sought by examining the context in which they occur and the text of the law as a whole.
    La. Civ. Code art. 12.
    7
    We further find no reversible error in the trial court' s handling of the
    exception raising the procedural issue and ruling on the motion to quash.         There is
    no single exception of no cause or right of action, such as Cole filed. See Badeaux
    v. Southwest Computer Bureau, Inc., 05- 0612, 05- 719 ( La. 3/ 17/ 06), 
    929 So. 2d 1211
    , 1216.
    Although often confused and improperly combined, the peremptory
    exceptions of no cause and no right of action are separate and distinct. La. Code
    Civ. Pro. art. 927A( 5) and ( 6).   A primary difference is the exception of no right of
    action questions whether the particular plaintiff has a right to bring the suit, while
    the exception of no cause of action questions whether the law provides a remedy
    against a particular defendant.     See Badeaux, 929 So. 2d at 1216- 17; State, by and
    through Caldwell v. Astra Zeneca AB, 16- 1073 ( La. App. 1 Cir. 4/ 11/ 18), 
    249 So. 3d 38
    , 42, writs denied, 18- 00766 ( 9/ 21/ 18), 
    252 So. 3d 899
     and 18- 0758 ( La.
    9/ 21/ 18),   
    252 So. 2d 904
    .   Further, evidence may be introduced to support or
    controvert an exception of no right of action, but is not permitted to support or
    controvert an exception of no cause of action. La. Code Civ. Pro. art. 931; Bannister
    Properties, Inc. v. State, 18- 0030, 18- 0031,     18- 0032, 18- 0033 ( La. App. 1 Cir.
    11/ 2/ 18), 
    265 So. 3d 778
    , 786- 87, writ denied, 19- 0025 ( La. 3/ 6/ 19), 
    266 So. 3d 902
    .
    Louisiana is a fact -pleading state that values substance over form and requires
    courts to look beyond the caption of the pleadings in order to ascertain their
    substance and do substantial justice to the parties. Pembo v. Pembo, 17- 1153 ( La.
    App. 1 Cir. 6/ 28/ 19), 
    280 So. 3d 656
    , 659. Review of the pleading indicates, as
    Cole argues, that the exception challenged the law under which the commitment
    proceeding was brought. Cole does not challenge LDH' s right to bring the suit or
    question whether LDH is a member of the class of persons that has a legal interest
    in his commitment.      Consequently, the exception must be considered to be an
    exception of no cause of action, not an exception of no right of action. No evidence
    may be introduced at any time to support or controvert an exception of no cause of
    M
    action; rather, the exception is triable solely on the face of the petition and attached
    documents. See La. Code Civ. Pro. art. 931; Dumas v. Board ofEthies, 19- 0289 ( La.
    App. 1 Cir. 11/ 15/ 19),       So. 3d(           2019   IL6050037, p.2).   The trial court
    did not err in ruling on the exception without evidence and Cole' s arguments
    regarding the motion to quash are moot.
    Cole also argues the trial court improperly admitted medical evidence over his
    objection based on the healthcare provider -patient privilege of Louisiana Code of
    Evidence article 510.      This court thoroughly examined and rejected the same issue
    in the prior appeal.   See Matter of Commitment of Cole, 276 So. 3d at 615- 17.       For
    the reasons set forth therein, we find no merit to the argument raised again in this
    appeal.
    Finally, Cole contends the trial court erred in refusing to consider his
    reconventional demand and motion to appoint a physician for an independent
    medical exam, which were fax -filed two days prior to the hearing. Cole argues his
    attorney brought the original pleadings to be filed in open court and it is his
    procedural right to have the demands heard before moving forward with the judicial
    commitment.
    Louisiana Revised Statute 13: 850 permits filings by facsimile in civil actions,
    with the same force and effect as a physically -filed pleading, if the particular
    statutory requirements are met.     Specifically, the original document identical to the
    facsimile filing must be delivered to the clerk of court within seven days, exclusive
    of legal holidays, and certain fees must be paid. La. R.S. 13: 850B. At the time of
    the hearing, Cole had not complied with the statutory requirements for fax -filing by
    delivering the original documents to the clerk of court; therefore, we find no error in
    the trial court' s refusal to consider the fax -filed pleadings.
    I
    CONCLUSION
    The trial court' s April 5, 2019 judgment is affirmed. No costs are assessed in
    this pauper proceeding. See La. R.S. 28: 56; Matter ofCommitment of Cole, 276 So.
    3d at 617; In re C. C., 2015WL9435190 at p. 4.
    AFFIRMED.
    10
    

Document Info

Docket Number: 2019CA0938

Filed Date: 12/27/2019

Precedential Status: Precedential

Modified Date: 10/22/2024