Gant v. CNA Ins. Co.

ROSE GANT v. CNA INSURANCE COMPANY,PHILIP A. SPENCE, L.L.C. & PHILIP A. SPENCE

2019 CW 1702

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

November 24, 2020

NOT DESIGNATED FOR PUBLICATION

ON APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT

NUMBER 133501, DIVISION B, PARISH OF ST. MARY

STATE OF LOUISIANA

HONORABLE SUZANNE DeMAHY, JUDGE

Joseph S. Piacun

Reid S. Uzee

Metairie, Louisiana

Counsel for Plaintiff-Appellant

Rose Gant

Gus A. Fritchie, III

McDonald G. Provosty

New Orleans, Louisiana

Counsel for Defendants-Appellees

Philip A. Spence, L.L.C., Philip A.

Spence, and Continental Casualty

Company

BEFORE: GUIDRY, WELCH, AND CHUTZ, JJ.

Disposition: APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED; AND REMANDED.

CHUTZ, J.

Plaintiff-appellant, Rose Gant, appeals the trial court's judgment, sustaining a declinatory exception of improper venue and transferring her legal malpractice case to Terrebonne Parish, where defendants-appellees, Phillip A. Spence, L.L.C. and Phillip A. Spence (collectively Spence), are domiciled. We convert the appeal to an application for a supervisory writ, grant the writ, reverse the judgment, and remand the matter to the 16th Judicial District Court in St. Mary Parish.

FACTUAL AND PROCEDURAL BACKGROUND

Gant retained Spence to represent her in a medical malpractice claim arising out of the alleged negligent care and treatment of her mother, Dorothy McGuire. According to Gant, as a result of the medical providers' negligence, McGuire died.

On May 14, 2015, Spence submitted a request for review of a claim of medical malpractice with the Commissioner of Administration, Medical Review Panel Office, in Baton Rouge, averring that after McGuire convulsed at Gant's home subsequent to a surgical procedure, Nursing Care of Morgan City (Nursing Care) was providing home health nursing care to McGuire. On May 27, 2014, McGuire was under the care of "Emily," a home health nurse employed by Nursing Care and/or Health Care Group, Inc. As she assisted McGuire while walking outside, Emily unexpectedly left McGuire unattended, ostensibly to "retrieve something" from the residence. Lacking assistance and stability from Emily, McGuire fell and injured her "hip and body, requiring further surgery." Spence alleged that Emily, Nursing Care and/or Health Care Group negligently performed their duties, causing McGuire's injuries.

In a letter to Spence, dated May 21, 2015, the Medical Malpractice Compliance Director for the Louisiana Patients Compensation Fund (PCF) acknowledged receipt of his May 14, 2015 request for a medical review panel(MRP) for McGuire and indicated that "LHC Group, Inc. - Illinois Union" and "Nursing Care (Branch of LHCG-VI, LLC dba Franklin Homecare) - Illinois Union" were reported as qualified for acts of medical malpractice under the Louisiana Medical Malpractice Act (MMA).¹ The director requested that Spence provide the complete name of "Emily" to determine her qualification under the MMA. Lastly, the director noted that a filing fee of $100 per qualified defendant had to be received by the PCF within 45 days "without exception" and requested remittance of full payment of the filing fee, noting that "[f]ailure to comply shall render the request [for a MRP for McGuire] invalid and without effect and the request shall not suspend the time within which suit must be instituted."²

On July 7, 2015, the Medical Malpractice Compliance Director sent a letter to Spence notifying the attorney that due to the failure to provide the complete name of "Emily," the request for a MRP relative to McGuire's claims against Emily was invalid. By letter dated September 5, 2017, the director advised Spence that the entire panel was "dissolved/dismissed/closed."

Nursing Care filed a petition in the 16th Judicial District Court, St. Mary Parish, on June 10, 2016, requesting to have a suit number assigned to McGuire's claim of medical negligence for discovery purposes. On October 5, 2016, Nursing Care, along with LHC Group, Inc., filed a peremptory exception raising the objection of prescription, contending that 45 days had passed since Spence was notified by the Medical Malpractice Compliance Director that the request for a MRP was invalid and without effect. Because more than a year had passed since the alleged malpractice or the date of discovery of the alleged malpractice, thehealthcare defendants urged that McGuire's claim was prescribed.³ The medical malpractice trial court agreed, sustaining the exception of prescription and dismissing the "entire matter" with prejudice. The judgment signed on March 13, 2017, expressly stated that Gant, on behalf of McGuire through her attorney Spence, "was provided with timely notice of the hearing date and the exception" and that "[n]o opposition was filed and no appearance was made."

On March 12, 2019, Gant filed this legal malpractice lawsuit in the 16th Judicial District Court, St. Mary Parish, naming as defendants Spence and Continental Casualty Company (Continental),⁴ the professional liability insurer of Spence. Spence and Continental filed a declinatory exception raising the objection of improper venue, urging that venue was proper in Terrebonne Parish, Spence's domicile. After a hearing on September 25, 2019, at which evidence was adduced, the trial court sustained the exception and ordered the matter transferred to Terrebonne Parish.⁵ The trial court signed a judgment on October 10, 2019, and notice of judgment issued on October 17, 2019. Gant appeals.

APPELLATE REVIEW

Under Louisiana law, a final judgment is one which determines the merits ofa controversy, in whole or in part. La. C.C.P. art. 1841. A venue ruling which transfers the matter to another venue is an interlocutory judgment. See Land v. Vidrine, 2010-1342 (La. 3/15/11), 62 So.3d 36, 39. In order to obtain review of such a ruling, a party adversely affected thereby must immediately apply for supervisory relief. Id., 62 So.3d at 40-41. The party may not await the rendition of a final judgment which adjudicates all issues as to all parties and then request appellate review as is otherwise available with respect to other interlocutory rulings. See La. C.C.P. art. 1915B(2); Blow v. OneBeacon Am. Ins. Co., 2016-0301 (La. App. 4th Cir. 4/20/16), 193 So.3d 244, 247, writ denied, 2016-0954 (La. 9/6/16), 204 So.3d 1002.

Gant appealed the trial court's October 10, 2019 judgment, sustaining the exception of improper venue and transferring the matter to Terrebonne Parish, on November 14, 2019. Because the appeal was filed within the delays for taking supervisory writs, we elect to exercise our supervisory jurisdiction and convert the appeal to an application for supervisory writs of review. See La. Const. art. V, § 10A; URCA Rule 4-3; Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39; Elee v. White, 2019-1633 (La. App. 1st Cir. 7/24/20), --- So.3d ----, ----. We now turn to the merits of the writ application.

VENUE

Venue is a question of law, which is reviewed de novo by the appellate court. MB Indus., LLC v. CNA Ins. Co., 2006-1084 (La. App. 1st Cir. 3/23/07), 960 So.2d 144, 146, writ denied, 2007-1186 (La. 9/21/07), 964 So.2d 335, and writ denied, 2007-1191 (La. 9/21/07), 964 So.2d 337, and writ denied, 2007-1217 (La. 9/21/07), 964 So.2d 340.

The general rules for proper venue as to the defendant are found in La. C.C.P. art. 42. Subsection (1) of Article 42 provides that an action against anindividual who is domiciled in the state shall be brought in the parish of his domicile. And Subsection (2) provides that an action against a domestic limited liability company shall be brought in the parish where its registered office is located. The parties do not dispute that Terrebonne Parish is the proper venue as to legal actions against Spence under Article 42.

A plaintiff may choose any venue available under the Code of Civil Procedure or any other supplementary venue provided by law that fits the particular circumstances of their claims. Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479 (La. 6/30/00), 764 So.2d 41, 44. According to Article 41 of the Code of Civil Procedure, venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. Thus, while a suit must generally be filed in the parish where a defendant is domiciled under Article 42, the provisions of Articles 71 through 85 provide optional venue alternatives that supplement the general rule. Jordan v. Central Louisiana Electric Co., Inc., 95-1270 (La. 6/23/95), 656 So.2d 988, 989 (relying on Kellis v. Farber, 523 So.2d 843 (La. 1988)). At issue in this case are the alternative venue provisions of Article 74, which provide in part, "An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained."

Spence maintained, and the trial court agreed, that St. Mary was not a proper venue under Article 74. Spence reasoned that all the legal work undertaken on behalf of Gant and/or McGuire was done in the Parish of Terrebonne and that "[t]he facts actually show that no work was done by Spence in the Parish of St. Mary." Therefore, according to Spence, venue was improper in St. Mary Parish where Gant filed the legal malpractice lawsuit.

Gant asserts that in the medical malpractice action for which Spence was retained, all the parties and healthcare providers were located in St. Mary Parish and every act of alleged medical malpractice occurred in St. Mary Parish. The alleged legal malpractice committed by Spence consisted of failing to (1) file the medical malpractice lawsuit; (2) appear at the hearing on the exception of prescription asserted by the medical malpractice defendants; and (3) oppose the exception of prescription in the medical malpractice lawsuit, all of which occurred in St. Mary Parish. Thus, Gant contends that under Article 74, St. Mary...