LaCroix v. Coleman

326 So.3d 921

Lorraine LACROIX

v.Dr. Charles T. COLEMAN, DDS, Charles T. Coleman, DMD, A Professional Dental Corporation, and ABC Insurance Company

2020 CA 1247

Court of Appeal of Louisiana, First Circuit.

DATE OF JUDGMENT: MAY 19, 2021

Richard H. Barker, IV, New Orleans, Louisiana, Counsel for Plaintiff-Appellee, Lorraine LaCroix

David A. Woolridge, Jr., Brent J. Bourgeois, Baton Rouge, Louisiana, Counsel for Defendant-Appellee, Louisiana Patient's Compensation Fund Oversight Board

Thomas C. Cowan, Leah T. Therio, Metairie, Louisiana, Counsel for Defendant-Appellant, Charles T. Coleman, DDS

Jacob K. Best, Stephen M. Pizzo, Metairie, Louisiana, Counsel for Defendant-Appellant, Charles T. Coleman, DMD, A Professional Dental Corporation

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

CHUTZ, J.

Defendants-appellants, Charles T. Coleman, DDS, individually, and Charles T. Coleman, DMD, Professional Dental Corporation (collectively Dr. Coleman), appeal the trial court's judgment, granting nullity relief on the basis of fraud or ill practice to plaintiff-appellant, Lorraine LaCroix, expressly vacating a consent judgment the parties had entered into that dismissed her medical malpractice claims against Dr. Coleman for alleged negligent dental care. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2015, LaCroix had implants and snap-in dentures placed by Dr. Coleman. Following constant pain and the failure of the dentures, Dr. Coleman removed all of LaCroix's lower teeth and placed a full lower denture. Despite the adjustment, LaCroix continued to suffer constant pain. In November of 2016, LaCroix received a second opinion which suggested that she had to have all the work performed by Dr. Coleman removed and replaced. LaCroix subsequently filed a petition for medical malpractice against Dr. Coleman.

Dr. Coleman filed a dilatory exception objecting on the basis of prematurity, contending that LaCroix had failed to complete the medical review panel process required by the Louisiana Medical Malpractice Act (MMA) prior to filing her lawsuit. Attached to the memorandum in support of the exception of prematurity was a certificate of liability insurance dated May 15, 2017, as well as a written complaint, dated October 18, 2016, to the commissioner of administration sent by LaCroix's attorney and a notice from the Division of Administration, Medical Malpractice Compliance Director of the Patient's Compensation Fund (PCF), dated February 13, 2017, advising Dr. Coleman he was not a qualified healthcare provider because he "failed to purchase an Extended Reporting Endorsement." Despite the notification that he was not a qualified health care provider, Dr. Coleman nevertheless maintained that the PCF had incorrectly determined he was not eligible for participation in the medical review panel process.

Prior to the hearing on the prematurity exception, on October 16, 2017, the parties filed a joint motion to dismiss LaCroix's claims against Dr. Coleman. A consent judgment, which dismissed the medical malpractice claims without prejudice, was signed by the trial court on October 17, 2017.

LaCroix filed a petition for a judgment of nullity on November 5, 2019.¹ According to the allegations of LaCroix's pleading, she resubmitted her claim to the PCF after the October 17, 2017 judgment and, again, the PCF advised of Dr. Coleman's non-qualification for participation in the medical review panel process.² Therefore, LaCroix claimed, she was entitled to a judgment of nullity vacating the consent judgment that dismissed her claims against Dr. Coleman.

After a hearing held on January 13, 2020, at which testimonial and documentary evidence was adduced, the trial court issued a judgment, granting nullity relief to LaCroix and vacating the consent judgment that the parties had entered into on October 17, 2017. This appeal by Dr. Coleman followed.

PEREMPTION

On appeal, Dr. Coleman contends that the trial court erred in failing to find that LaCroix's claim for nullity relief was untimely asserted. We agree.

La. C.C.P. art. 2004 provides in pertinent part:

A. A final judgment obtained by fraud or ill practices may be annulled.

B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.^[3]

The one-year limitation to file an action to annul under Article 2004 is a period of peremption,⁴ and the burden of proof to show that a nullity action was brought within one year of the discovery of the fraud or ill practice is on the proponent of the nullity action. Greenland v. Greenland , 2008-2568 (La. App. 1st Cir. 12/9/09), 29 So.3d 647, 653, writ denied, 2010-0004 (La. 3/5/10), 28 So.3d 1011. Although Dr. Coleman did not file a peremptory exception objecting to the timeliness of LaCroix's petition, the lapse of the one-year peremptive period may be noticed by the court on its own motion. See La. C.C. art. 3460 ; La. C.C.P. art. 927B; A.S. v. M.C ., 96-0948 (La. App. 1st Cir. 12/20/96), 685 So.2d 644, 648-49, writ denied, 97-0213 (La. 3/14/97), 690 So.2d 38.

At the hearing, LaCroix's attorney, Richard Hobbs Barker, IV, testified that after he filed a claim on behalf of LaCroix with the PCF, the PCF advised him that Dr. Coleman was not a qualified healthcare provided under the MMA. He thereafter filed LaCroix's medical malpractice lawsuit. In response, Dr. Coleman filed an exception of prematurity. Barker explained that counsel for Dr. Coleman showed him a copy of the declaration sheet of the insurance policy showing coverage for Dr. Coleman and advised him, "I don't know what's wrong with the PCF, we[’ve] got insurance .... Are you going to oppose this?" Barker determined that because Dr. Coleman had insurance, he could not oppose the exception of prematurity and voluntarily agreed to a judgment rather than risk a violation of La. C.C.P. art. 863.⁵ Thereafter, Barker sent the consent judgment to the PCF.

According to Barker, in May 2019, he spoke with a person at the PCF who advised him that while their records indicated that Dr. Coleman had a declaration sheet and that Dr. Coleman may have insurance, it was not "the right kind of insurance." Therefore, the PCF representative told Barker that the PCF was not convening a panel to review LaCroix's claims against Dr. Coleman. On cross-examination, Barker admitted that he did not know to whom he spoke at the PCF in May 2019 and agreed that he had no written documentation of the conversation.

The letter that Barker sent to the PCF enclosing a copy of the joint motion to dismiss that supported the October 17, 2017 consent judgment was admitted into evidence. The letter, which was dated November 28, 2017, stated that it was Barker's "understanding that this case shall now proceed with the PCF Panel."

The PCF is mandated within fifteen days of the receipt of a medical malpractice claim to confirm to the claimant by certified mail that the filing has been officially received, and to advise whether or not the named defendant or defendants have qualified under the MMA, the amount...