In Re: Medical Review Panel Proceedings of Don Singleton

IN RE: MEDICAL REVIEW PANEL NO. 22-CA-285
PROCEEDINGS OF DON SINGLETON
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 793-446, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
March 01, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.
JUDGMENT REVERSED,
CASE REMANDED
SMC
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
DON SINGLETON
Ann M. Johnson-Griffin
COUNSEL FOR DEFENDANT/APPELLEE,
WARREN R. BOURGEOIS, III, M.D.
C. William Bradley, Jr.
Benjamin J. Biller
Lance V. Licciardi, Jr.
CHEHARDY, C.J.
Plaintiff, Don Singleton, appeals the trial court’s February 23, 2022
judgment granting defendant’s motion to dismiss the appeal of the judgment
sustaining defendant’s second exception of prescription. Defendant Warren R.
Bourgeois, III, M.D., moved to dismiss plaintiff’s appeal on the basis that plaintiff
failed to timely pay the appeal costs and failed to enunciate a reason for requesting
an extension of time to pay those costs. For the reasons that follow, we reverse the
trial court’s judgment granting the motion to dismiss plaintiff’s underlying appeal.
Background and Procedural History
This matter arises from plaintiff’s allegations of medical malpractice against
Dr. Bourgeois after he performed surgery on plaintiff in May of 2017. Plaintiff
filed a request for a medical review panel on February 7, 2019, contending that he
did not discover the alleged malpractice until February 10, 2018. The trial court
granted Dr. Bourgeois’s exception of prescription and dismissed plaintiff’s lawsuit
with prejudice. On plaintiff’s first appeal, this Court amended the trial court’s
judgment and remanded to give plaintiff 20 days to amend his request for a
medical review panel, to remove the allegedly incorrect dates of surgery and/or
discovery of the alleged malpractice. In re Singleton, 19-578 (La. App. 5 Cir.
9/2/20), 303 So.3d 362.
After remand, plaintiff purportedly amended his medical review panel
request, and defendant filed a second peremptory exception of prescription, which
the trial court again sustained on September 21, 2021.1 On October 20, 2021,
plaintiff timely filed an appeal. On December 10, 2021, the trial court issued a
Notice of Estimated Costs of Appeal, specifying that plaintiff had 20 days to pay
1
Plaintiff designated the record for the present appeal; as such, the amended request for the
medical panel and defendant’s second exception of prescription are not in the record. Because
the substance of these pleadings are not pertinent to this appeal, however, we provide no
additional discussion regarding the merits of defendant’s second peremptory exception of
prescription.
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those costs. On December 29, 2021, rather than paying the costs, plaintiff filed a
“Supplemental and Amending Motion and Notice of Intent to File an Appeal and
an Extension of Time to Pay Court Costs.” In its entirety, plaintiff’s motion stated:
The supplemental and amending petition of plaintiff, DON
SINGLETON, in the above entitled and numbered cause,
respectfully represents that the plaintiff desires to
supplement and amend his original motion filed herein and
that leave of court is not required as no defendant has filed
responsive pleadings at this point.
Plaintiff amends his petition for damages in the following
particulars by:
1. Moving the Court to designate into the record the
lower court file starting from July 28, 2021 to the
present.
In accordance with Louisiana Code of Civil Procedure
Article 2125 [sic], the counsel for plaintiff moves the
Court to grant an extension of time to determine new court
costs and to fix a new return day.
On January 3, 2022, Dr. Bourgeois filed a motion to dismiss the appeal as
abandoned. Dr. Bourgeois contends that he was not aware that plaintiff had filed
his December 29, 2021 “supplemental and amending motion” until after the
motion to dismiss the appeal was filed. Plaintiff opposed the motion to dismiss,
and on February 23, 2022, the trial court presided over a hearing to consider (i)
plaintiff’s supplemental and amending motion and notice of intent to file an appeal
and an extension of time to pay court costs, and (ii) defendant’s motion to dismiss
appeal as abandoned. On the same day, before the hearing, plaintiff paid the
estimated court costs.2 The trial court denied plaintiff’s motion and granted
defendant’s motion to dismiss the appeal. Plaintiff now appeals the trial court’s
judgment dismissing his appeal.
2
The record contains a receipt indicating that a deposit of $1132.00 was paid at 8:45 a.m. on
February 23, 2022.
22-CA-285 2
Discussion
A trial court’s judgment dismissing a party’s appeal for failure to pay costs
of appeal should not be reversed absent an abuse of discretion. Fontenot v.
Delhomme’s Funeral Home, Inc., 09-1017 (La. App. 3 Cir. 4/7/10), 33 So.3d 1100,
1102, writ denied, 10-1064 (La. 9/3/10), 44 So.3d 687. The payment of appeal
costs is governed by La. C.C.P. art. 2126, which provides, in relevant part:
B. Within twenty days of the mailing of notice [of costs
of appeal], the appellant shall pay the amount of the
estimated costs to the clerk. The trial court may grant one
extension of the period for paying the amount of the
estimated costs for not more than an additional twenty
days upon written motion showing good cause for the
extension.
C. The appellant may question the excessiveness of the
estimated costs by filing a written application for
reduction in the trial court within the first twenty-day time
limit, and the trial court may order reduction of the
estimate upon proper showing. If an application for
reduction has been timely filed, the appellant shall have
twenty days to pay the costs beginning from the date of the
action by the trial court on application for reduction.
***
E. If the appellant fails to pay the estimated costs, or the
difference between the estimated costs and the actual
costs, within the time specified, the trial judge, on his own
motion or upon motion by the clerk or by any party, and
after a hearing, shall:
(1) Enter a formal order of dismissal on the
grounds of abandonment; or
(2) Grant a ten day period within which costs
must be paid in full, in default of which the
appeal is dismissed as abandoned.
F. If the appellant pays the costs required by this Article,
the appeal may not be dismissed because of the passage of
the return day without an extension being obtained or
because of an untimely lodging of the record on appeal.
Plaintiff contends on appeal that the trial court abused its discretion in
dismissing his appeal as abandoned, where plaintiff timely submitted a motion for
22-CA-285 3
extension of time to pay those costs, and paid the costs of appeal on the morning of
the hearing. Moreover, plaintiff argues that there was no intent to abandon the
appeal. Appeals are favored, and any doubt should be resolved in favor of
maintaining rather than dismissing an appeal. Hacienda Constr., Inc. v. Newman,
10-18 (La. App. 5 Cir. 6/29/10), 44 So.3d 333, 336. According to plaintiff, unless
the ground for dismissal are free from doubt, the appeal should be maintained.
Morice v. Alan Yedor Roofing & Constr., 16-532 (La. App. 5 Cir. 2/8/17), 216
So.3d 1072, 1079.
Additionally, plaintiff cites Richards v. Everett, 509 So.2d 851, 852 (La.
App. 4th Cir. 1987), and Reed v. Columbia/HCA Info. Serv., Inc., 99-1315 (La.
App. 5 Cir. 4/25/00), 761 So.2d 625, cases in which the reviewing courts
determined that where the appellant had paid the court costs before the trial court
held a hearing to determine whether the case had been abandoned, the issue was
moot, and the appeal should move forward.
On the other hand, defendant argues that the trial court did not abuse its
discretion in dismissing plaintiff’s appeal. Although La. C.C.P. art. 2126 permits
an appellant to request an extension of time to pay costs with a showing of good
cause, defendant contends that plaintiff made no such showing here. Article 2126
also contemplates an extension of time to pay costs when the appellant has timely
questioned the excessiveness of the estimated costs by a written application for
reduction, but here, plaintiff made an untimely request to designate part of the
record on appeal – a request that was more than two months too late – and he did
not question the excessiveness of the estimated costs. Defendant argues that the
provisions of Article 2126 do not excuse plaintiff’s failure to timely pay the costs
of appeal.
Further, defendant contends that plaintiff’s payment of the costs on the
morning of the hearing is inconsequential, because plaintiff offered no evidence at
22-CA-285 4
the February 23, 2022 hearing to show that the costs had been paid, nor did
plaintiff’s counsel indicate as much at that time. As such, defendant argues that the
trial court did not abuse its discretion in dismissing the appeal after a contradictory
hearing.
We find the trial court abused its discretion in dismissing plaintiff’s appeal,
for the reasons we stated in Reed v. Columbia:
The primary purpose of the statutory authorization to
dismiss appeals for non-payment of costs is to dismiss the
appeal as abandoned in those cases in which the appellant
files a timely appeal and thereafter decides not to pursue
it; a secondary purpose is to ensure prompt payment of
costs of appeal by dilatory appellants. Pray v. First Nat.
Bank of Jefferson Parish, 93-3027 (La. 2/11/94), 634
So.2d 1163. The focus of district courts in deciding Article
2126 motions to dismiss should be on securing payment of
costs in order to move appeals forward rather than on
dismissing appeals which are obviously not abandoned,
simply because a motion was filed immediately after
expiration of the twenty-day period for paying the
costs. Id.This article is not jurisdictional, but is a procedural vehicle
designed solely for the efficient administration of the
court. Ronquille v. State, Dept. of Wildlife and
Fisheries, 532 So.2d 891, 894 (La. App. 5th Cir. 1988).
As noted in the concurring opinion in Richards v.
Everett, 509 So.2d 851, 852-53 (La. App. 4th Cir. 1987),
C.C.P. art. 2126 is not self operative. Before the trial
judge may dismiss the appeal for non-payment of
costs there must be a hearing which may be
provoked by the judge on his own motion or on
motion of the clerk or that of a party....But when the
costs are already paid at the time of the hearing the
statute has no application by its own terms.
La.C.C.P. art. 5051 provides, “The articles of this Code
are to be construed liberally, and with due regard for the
fact that rules of procedure implement the substantive law
and are not an end in themselves.” Appeals are favored in
the law and should be maintained unless a legal ground for
dismissal is clearly shown. U.S. Fire Ins. Co. v.
Swann, 424 So.2d 240, 244 (La. 1982). An appeal is not to
be dismissed for a mere technicality. Id. Unless the ground
urged for dismissal is free from doubt, the appeal should
be maintained. Id. at 245.
22-CA-285 5
We find, therefore, that because plaintiff's payment of
appeal costs was made prior to the hearing on defendant’s
motion to dismiss her appeal, the payment satisfied the
intent and purposes of La. C.C.P. art. 2126 and made the
motion to dismiss moot.
761 So. 2d 625, 628-29. Because appeals are favored, and because the record
reflects that plaintiff paid the estimated appeal costs before the scheduled
contradictory hearing, we find the motion to dismiss in these circumstances to be
moot.
DECREE
The trial court’s judgment dismissing plaintiff’s appeal is reversed. The
appeal of the judgment on defendant’s second exception of prescription is
reinstated. The matter is remanded to the trial court for any further preparation and
certification of the record as necessary for that appeal.
JUDGMENT REVERSED,
CASE REMANDED
22-CA-285 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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
MARCH 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-285
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
ANN M. JOHNSON-GRIFFIN (APPELLANT) VELEKA ESKINDE (APPELLANT) BENJAMIN J. BILLER (APPELLEE)
C. WILLIAM BRADLEY, JR. (APPELLEE) CHRISTOPER R. HANDY (APPELLEE)
MAILED
LANCE V. LICCIARDI, JR. (APPELLEE)
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