Gina Moise, Robert Southard, Jr. and Kevin Southard, Individually and on behalf of Betty Sue Southard (D) v. Baton Rouge General Medical Center

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0623
GINA MOISE, ROBERT SOUTHARD, JR. AND KEVIN SOUTHARD,
INDVIDUALLY AND ON BEHALF OF BETTY SUE SOUTHARD ( D)
VS.
BATON ROUGE GENERAL MEDICAL CENTER, ET AL
Judgment rendered: APR 2 0 2023
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 666, 291
The Honorable Trudy M. White, Judge Presiding
Benjamin P. Mouton Attorneys for Plaintiffs/ Appellants
Daniel J. McGlynn Gina Moise, Robert Southard, Jr., and
Eric E. Helm Kevin Southard
Baton Rouge, Louisiana
Craig J. Sabottke Attorneys for Defendants/ Appellees
Michael M. Remson Baton Rouge General Medical Center, et al
Courtenay S. Herndon
Baton Rouge, Louisiana
BEFORE: GUIDRY, C.J., McCLENDON, HOLDRIDGE, HESTER, AND
GREENE JJ.
Id t 73. C- OnC. A- r5
HOLDRIDGE, J.
The plaintiffs, Gina Moise, Robert Southard, Jr., and Kevin Southard, appeal
the trial court judgment denying their motion to set aside the order of dismissal. For
the following reasons, we reverse.
FACTS AND PROCEDURAL HISTORY
On February 9, 2018, the plaintiffs filed a petition for damages, wrongful
death and survival action against the defendants, Baton Rouge General Medical
Center -Bluebonnet, Robert Territo, M.D., Baharesh Binesh, M.D., Bayley Hubble,
D.O., and Ramandeep Singh, M.D., alleging various acts of medical negligence.'
On June 21, 2018, Baton Rouge General Medical Center -Bluebonnet, Robert
Territo, D.O., Bayley Hubble, D.O., and Ramandeep Singh M.D., answered the
plaintiffs' petition generally denying all allegations of negligence. On August 1,
2018, Baharesh Binesh, M.D., answered the plaintiffs' petition, generally denying
all allegations of negligence against him.
On October 19, 2021, the defendants filed an ex parte motion to dismiss the
suit on grounds of abandonment pursuant to La. C. C. P. art. 561. The defendants
asserted that no step had been timely taken in the prosecution or defense of the action
for three years and therefore the case was abandoned by operation of law as
mandated by La. C. C.P. art. 561.' The defendants argued that the last action taken
in the prosecution or defense of the suit was on September 11, 2018, when the
defendants provided discovery responses to the plaintiffs. In support oftheir motion,
one of the defendants' attorneys, Courtenay S. Herndon, filed an affidavit attesting
that the defendants " ha[ d] not been served with any discovery requests, responses,
1 Baton Rouge General Medical Center—Bluebonnet was erroneously named as Baton Rouge
General Medical Center, General Health System, in the plaintiffs' petition.
Z Louisiana Code of Civil Procedure article 561( A)( 1) provides, in pertinent part:
An action ... is abandoned when the parties fail to take any step in its prosecution or
defense in the trial court for a period of three years[.]
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pleadings, or notices for a period in excess of three ( 3) years from the last action
On
taken by any party in prosecution of this case which was September 11, 2018[.]"
October 20, 2021, the trial court signed the defendants' ex parte motion to dismiss
the suit on the grounds of abandonment, dismissing the plaintiffs' claims pursuant
to La. C. C. P. art. 561( A).
On November 12, 2021, the plaintiffs filed a motion to set aside the order of
dismissal. Counsel for the plaintiffs submitted with its motion an affidavit from
Benjamin Mouton, the plaintiffs' attorney, that attested the following:
7. Shortly after filing the lawsuit against Baton Rouge General Medical
Center and the resident physicians, [ Mr. Mouton] called [ Michael]
Remson[, the defendants' attorney,] and asked if [Mr. Mouton needed]
to file a formal Motion to Stay the lawsuit against all of the defendants
until the case against Dr. Reddy and Dr. Thames was decided by the
medical review panel;
8. Mr. Remson advised [ Mr. Mouton] that, similar to other cases [ they]
had together in the past and since this one, a formai Motion to Stay
the lawsuit would not be necessary;
9. Rather, [ they] agreed to an informal stay of the lawsuit as to all of
the plaintiffs and all of the defendants until an [ o] pinion was rendered
on the claims made against Dr. Reddy and Dr. Thames[;]
11. While this agreement by all parties to informally stay the lawsuit
was never memorialized in a letter or email between counsel, it was
confirmed to [ Mr. Mouton] ... in a string of intra -office emails on May
31, 2018[; and]
24. In a letter dated August 13, 2020, Mr. Remson as counsel for Dr.
Reddy in Suit No. 697,648 and who simultaneously was counsel for
sic] record for all of the defendants in Suit No. 666, 291, proposed
filing a Motion to Consolidate the two lawsuits[.]
Mr. Mouton also testified at the hearing on the motion to set aside the order of
dismissal. His testimony was in accordance with the information contained in the
affidavit that was filed with the plaintiffs' motion.
The defendants opposed the plaintiffs' motion to set aside the order of
dismissal arguing that September 11, 2018, was the date of the last step taken by any
party in this case. The defendants attached to their memorandum their discovery
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responses that evidenced that September 11, 2018, was the date that the discovery
responses were submitted to the plaintiffs. However, the defendants did not offer an
affidavit, any documents, or evidence to contradict the allegations made in the
affidavit submitted by Mr. Mouton, the plaintiffs' attorney.
On March 15, 2022, the trial court held a hearing on the plaintiffs' motion to
set aside the order of dismissal. After hearing arguments and the testimony of Mr.
Mouton, the trial court denied the plaintiffs' motion. The trial court signed a
judgment on April 7, 2022. Subsequently, the plaintiffs devolutively appealed the
trial court judgment.
APPLICABLE LAW
Louisiana Code of Civil Procedure article 561 governs abandonment and
provides, in pertinent part:
A. ( 1) An action ... is abandoned when the parties fail
to take any step in its prosecution or defense in the trial court for a
period of three years[.]
3) This provision shall be operative without formal order, but, on ex
parte motion of any party or other interested person by affidavit which
provides that no step has been timely taken in the prosecution or
defense of the action, the trial court shall enter a formal order of
dismissal as of the date of its abandonment. The sheriff shall serve the
order in the manner provided in Article 1314, and shall execute a return
pursuant to Article 1292.
4) A motion to set aside a dismissal may be made only within thirty
days of the date of the sheriffs service of the order of dismissal. If the
trial court denies a timely motion to set aside the dismissal, the clerk of
court shall give notice of the order of denial pursuant to Article 1913 (A)
and shall file a certificate pursuant to Article 1913( D).
5) An appeal of an order of dismissal may be taken only within sixty
days of the date of the sheriff' s service of the order of dismissal. An
appeal of an order of denial may be taken only within sixty days of the
date of the clerk' s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all
parties whether or not filed of record, including the taking of a
deposition with or without formal notice, shall be deemed to be a step in
the prosecution or defense of an action.
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Louisiana Code of Civil Procedure article 561 imposes three requirements to
avoid abandonment: ( 1) a party must take some " step" in the prosecution or defense
of the action; ( 2) the step must be taken in the proceeding and, with the exception of
formal discovery, must appear in the record of the suit; and (3) the step must be taken
within three years of the last step taken by either party; sufficient action by either
plaintiff or defendant will be deemed a step. Clark v. State Farm Mut. Auto. Ins.
Co., 2000-3010 ( La. 5/ 15/ 01), 785 So.2d 779, 784. A "step" is a formal action before
the court intended to hasten the suit towards judgment or is the taking of formal
discovery. Louisiana Dep' t of Transp. and Development v. Oilfield Heavy Haulers,
L.L.C., 2011- 0912 ( La. 12! 6/ 11), 79 So. 3d 978, 981.
There are two jurisprudential exceptions to the abandonment rule that appear
outside of the record that interrupts the abandonment period. Id. at 985. These
exceptions include: ( 1) a plaintiff' s failure to prosecute based on circumstances
beyond the plaintiffs control; or ( 2) a defendant' s waiver of the right to assert
abandonment by taking action inconsistent with an intent to treat the case as
abandoned. Id. at 985. The waiver exception is based on the well- established rule
that prescription can be interrupted by acknowledgment.' City of Baton
Rouge/ Parish of East Baton Rouge v. Smu s Corp., Inc., 2014- 0134 ( La. App. 1
Cir. 10/ 16/ 14), 156 So. 3d 202, 206 n.3. The abandonment period has been described
as " a form of liberative prescription." Id. In Gilbert v. Metropolitan Life Insurance
The jurisprudence provides the following examples of conduct that constitutes a waiver of the
right to plead abandonment: ( 1) submitting a case for decision by filing a motion for summary
judgment; ( 2) making an unconditional tender of uninsured motorist benefits; ( 3) filing an answer
to a supplemental petition; ( 4) participating in a status conference and signing a case management
schedule; (
5) filing answers to interrogatories; and ( 6) forwarding correspondence to opposing
counsel requesting proposed dates for a scheduling order to be filed with the court. Conversely,
courts found the following conduct did not give rise to a waiver of abandonment: ( 1) informal
settlement negotiations; ( 2) a request to pursue mediation; ( 3) opposing a motion to compel; and
4) attending a pretrial conference where abandonment of the case was apparently discussed. City
of Baton Rouge/Parish of East Baton Rouge v. Smugg s Corp., Inc., 2014- 0134 ( La. App. 1 Cir.
10/ 16/ 14), 156 So. 3d 202, 206- 07 ( internal citations omitted).
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Company, 2020- 0850 (La. App. 1 Cir. 2122121), 321 So. 3d 1023, 1032, writ denied,
2021- 00441 ( La. 5125121), 316 So. 3d 444, this court held that a waiver by
acknowledgment can occur before or after the accrual of the abandonment period
and cause the period to begin anew. See also Clark, 785 So. 2d at 789. This court
further stated in Gilbert that " unlike a plaintiff whose post -abandonment actions
cannot serve to revive an abandoned action, a defendant' s post -abandonment actions
can serve to waive its right to plead abandonment. That a defendant' s conduct
occurred before the abandonment period elapsed as opposed to after is thus a
distinction without a difference." Gilbert, 321 So. 3d at 1032. The acknowledgment
standard for interrupting the abandonment period is a less stringent evidentiary
requirement than the renunciation of prescription standard that would occur after the
accrual of the abandonment period. See City of Baton Rouge/ Parish of East Baton
Rouge, 156 So. 3d at 206 n. 3.
As a general rule, abandonment is not meant to dismiss actions on mere
technicalities, but to dismiss actions which in fact clearly have been abandoned.
Louisiana Dep' t of Transp, and Development, 79 So. 3d at 986; see also Hargis v.
Jefferson Parish, 2000- 0072 ( La. 3/ 17/ 00), 755 So. 2d 891 ( per curiam) ( reversing a
finding of abandonment based on a letter to the clerk of court requesting service on
defendants, which was not filed in the record).
The supreme court has uniformly held that La. C. C.P. art. 561 is to be liberally
construed in favor of maintaining a plaintiffs suit. Because dismissal is the harshest
of remedies, any reasonable doubt about abandonment should be resolved in favor
of allowing the prosecution of the claim and against dismissal for abandonment. The
intention of La. C. C. P. art. 561 is not to dismiss suits as abandoned based on
technicalities, but only those cases where plaintiffs inaction during the three- year
period has clearly demonstrated his abandonment of the case. For the purpose of
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determining abandonment, the intent and substance of a party' s actions matter far
more than technical compliance. Louisiana Dep' t of Transp. and Development, 79
So. 3d at 981- 82.
Whether a step in the prosecution or defense of a case was taken in the trial
court within a period of three years is a question of fact subject to a manifest error
review on appeal. BAC Home Loans Servicing, LP v. Louis, 2020- 0717 ( La. App. 1
Cir. 5113121), 326 So. 3d 904, 909. On the other hand, whether a particular act, if
proven, qualifies as a step in furtherance of the action and thereby precludes
abandonment is a question of law that we review by simply determining whether the
trial court' s interpretative decision is correct. Id.DISCUSSION
In sum, the plaintiffs argue on appeal that the trial court erred in denying their
motion to set aside the order of dismissal and in not considering the informal stay
between the parties, as well as the steps taken in the prosecution and defense in the
medical review panel proceeding. The evidence submitted by the plaintiffs in
support of their motion to set aside the order of dismissal includes an affidavit and
the testimony of the plaintiffs' attorney, Mr. Mouton, wherein he asserts that he
discussed an informal stay of this case with the defendants' attorney. The affidavit
of the plaintiffs' attorney, Mr. Mouton, references a letter sent by the defendants'
attorney on August 13, 2020, which was submitted as an exhibit with the plaintiffs
motion. Also attached to the plaintiffs' motion is informal correspondence between
the plaintiffs' attorney and his staff about an " informal stay" for the case dated May
31, 2018. Therefore, the plaintiffs argue that this informal stay between the parties,
and the acknowledgment by the attorney for the defendants that both cases were
pending and should be consolidated, satisfied an exception to La. C. C.P. art. 561 and
that the defendants waived their right to assert an abandonment claim.
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This circuit has recognized that informal negotiations are not steps in the
prosecution. See Ellis v. Louisiana Casino Cruises, Inc., 2021- 0148 ( La. App. 1 Cir.
10118121), 2021 WL 4843823 at * 5 ( unpublished).4 " Extrajudicial efforts," such as
informal correspondence between the parties, have uniformly been held to be
insufficient to constitute a step for purposes of interrupting abandonment. Id.;
Burgess, Inc. v. Parish of St. Tamm, 2017- 0153 ( La. App. 1 Cir. 10125117), 233
So. 3d 58, 68, writ denied, 2017- 2179 ( La. 2/ 23/ 18), 237 So. 3d 515. See also Jackson
v. Moock, 2008- 1111 ( La. App. 1 Cir. 12123108), 4 So. 3d 840, 844- 45 ( finding that
informal discussions and correspondence scheduling depositions were insufficient
to constitute steps in the prosecution of an action); Miles v. Suzanne' s Caf6 &
Catering_ Inc., 2011- 907 ( La. App. 5 Cir. 3/ 27/ 12), 91 So. 3d 1107, 1111 ( finding
that informal requests for documents from a defendant do not constitute formal
discovery and are not steps in the prosecution of the action for purposes of La. C. C. P.
art. 561).
The record reveals that the defendants responded to the plaintiffs' discovery
request on September 11, 2018. Responding to discovery is a step in the
prosecution. La. C. C. P. art. 561( B); see Breaux v. Auto Zone, Inc., 2000- 1534 ( La.
App. 1 Cir. 12115100), 787 So. 2d 322, 326, ( per curiam) writ denied, 2001- 0172 (La.
3116101), 787 So. 2d 316. The record establishes that the last step taken in the
prosecution of the suit was on September 11, 2018, when the defendants provided
discovery responses to the plaintiffs. Accordingly, unless there is a waiver or
interruption of the abandonment period, this case became abandoned on September
4 See also Food Perfect, Inc. v. United Fire & Casualty Co., 2012- 2492 ( La. 1/ 18/ 13), 106 So. 3d
107, 108 ( per curiam) ( the Supreme Court held that at most the parties engaged in informal
settlement negotiations when plaintiff met with a representative of defendant to determine if there
was any possibility of resolving the case and had several conversations with defendant' s
representatives following the meeting); Burton v. Salsbga' s Dodge City, Inc., 2012- 1999 ( La.
App. 1 Cir. 6! 7113), 2013 WL 2488936, * 2 ( unpublished), writ denied, 2013- 1629 ( La. 10125/ 13),
124 So. 3d 1099 ( an informal settlement offer made by defendant to settle based on certain
concessions on plaintiff' s part was not akin to an unconditional offer);
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12, 2021, because more than three years passed after the defendants sent their
discovery responses without any step being taken in the prosecution or defense of
this suit.
However, in accordance with the well-recognized jurisprudence, we must
decide if any actions by the defendants' attorney constituted a recognized exception
or waiver of the abandonment rule. The question that this court must answer is
whether the defendants waived their right to assert abandonment by taking actions
inconsistent with an intent to treat the case as abandoned. See Louisiana Dep' t of
Trans.p. and Develo ment, 79 So. 3d at 985. The unique facts of this case show that
the plaintiffs filed a medical malpractice case against Baton Rouge General Medical
Center -Bluebonnet, Robert Territo, M.D., Baharesh Binesh, M.D., Bayley Hubble,
D.O., and Ramandeep Singh, M.D. in the 19"' Judicial District Court. Because these
defendants were not qualified healthcare providers under the Medical Malpractice
Act, La. R.S. 40: 1231. 1, et seq., the claims against these defendants did not have to
be presented to a medical review panel. Two doctors who were also involved in the
alleged medical malpractice, Dr. Karthik Reddy and Dr. Monte Thames, were
qualified under the Medical Malpractice Act and their cases had to be presented to a
medical review panel.
According to the affidavit and testimony of the plaintiffs'
attorney, Mr. Mouton, he and Mr. Remson, the defendants' attorney, worked on at
least six other similar cases where unqualified doctors were involved. In all of those
cases, the plaintiffs and the defendants operated under a joint informal agreement to
stay the suit filed against the defendants who were not qualified until completion of
the medical review panel process against the qualified doctors. In her opposition
affidavit, the defendants' attorney did not address nor deny the existence of the
informal stay agreement between Mr. Mouton and Mr. Remson.' In fact, no affidavit
5 The court recognizes the professional conduct of both Mr. Mouton and Mr. Remson in their
handling of this case. We note that the Louisiana Code of Professionalism contained in District
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or testimony was offered by Mr. Remson to dispute any of the allegations of Mr.
Mouton.
A letter dated August 13, 2020, from Mr. Remson to Mr. Mouton was
introduced at the hearing, in which Mr. Remson acknowledged both the new lawsuit
Gina Moise et al vs. Karthik Redd M.D., Suit No: 697, 648") as well as the pre-
existing lawsuit against the Baton Rouge General Medical Center -Bluebonnet,
Robert Territo, M.D., Baharesh Binesh, M.D., Bayley Hubble, D. 4., and
Ramandeep Singh, M.D., filed on February 9, 2018. In Mr. Remson' s August 13,
2020 letter to Mr. Mouton, he stated: "[ u] pon review of both lawsuits, it would
probably be a good idea for you to consolidate the two ( 2) claims. Please let me
know if you are going to voluntarily consolidate the cases or, we will have to file a
Motion to do so."
In accordance with the unique procedural posture of medical malpractice suits
and the different treatment of defendants depending upon their status as a qualified
or unqualified healthcare provider under the Medical Malpractice Act, we find that
the agreement between the attorneys to stay the first filed lawsuit was a defense
waiver of the right to assert abandonment. As evidenced by Mr. Remson' s letter to
Mr. Mouton on August 13, 2020, both Mr. Mouton and more importantly, Mr.
Remson, clearly indicated that the parties were working together as professionals to
handle both cases in the most effective method to reduce the cost of litigation.
Unlike most informal negotiations and correspondence that does not interrupt the
abandonment period, the informal agreement in this case had the laudable goal of
Court Rule 6.2 states that an attorney' s word is his bond. Further, District Court Rule 6.2 states
that attorneys " will cooperate with counsel and the court to reduce the cost of litigation — ," It is
apparent from the actions of the attorneys in this case that their " word was their bond" and the
informal agreement between the attorneys was intended to reduce the cost of litigation by limiting
the cost in the first filed suit until the completion of the medical malpractice review process and
the filing of the second lawsuit. At that time, Mr. Remson acknowledged in writing that the two
lawsuits should be consolidated.
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handling the malpractice cases in both a professional and a cost-saving method to
the clients. Clearly the abandonment statue is not meant to dismiss this type of
action. Therefore, we find that the letter of August 13, 2020, wherein the attorney
for the defendants acknowledged the two lawsuits and the need to consolidate the
cases, interrupted the abandonment period. The letter indicated to all parties the
intention to go forward with both actions in a consolidated lawsuit. As stated by the
Supreme Court in Louisiana De ' t of Transp. and Development, 79 So. 3d at 985,
requiring any action taken by a party that is alleged to be a step in the prosecution
or defense of the suit must appear in the court record is mistaken to the extent it
precludes actions made by defendants and known to all parties from constituting a
step in the prosecution or defense of an action sufficient to interrupt abandonment."
Accordingly, we find that this case was not abandoned because the facts
appear to show a jurisprudential exception to the abandonment rule as mandated by
La. C. C. P. art. 561. See Louisiana Dep' t of Transp. and Development, 79 So. 3d at
985. Specifically, the unique facts of this case show that the defendants waived their
right to assert abandonment by taking actions inconsistent with their intent to treat
this case as abandoned. Therefore, we reverse the April 7, 2022 judgment of the
trial court.
CONCLUSION
For the reasons set forth above, the April 7, 2022 judgment of the trial court
denying the plaintiffs', Gina Moise, Robert Southard, Jr., and Kevin Southard' s,
motion to set aside the order of dismissal is reversed. All costs of this appeal are
assessed to the defendants, Baton Rouge General Medical Center -Bluebonnet,
Robert Territo, M.D., Baharesh Binesh, M.D., Bayley Hubble, D. O., and
Ramandeep Singh, M.D.
REVERSED.
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