Brenda Bergeron , Individually An D On Behalf Of Her

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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #029
F
ROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of June, 2021 are as follows:
BY Crain, J.:
2020-CC-01409 BRENDA BERGERON , INDIVIDUALLY AN D ON BEHALF OF HER
HUSBAND, DONALD BERGERON VS. DONALD RICHARDSON, M.D.
AND PAUL HUBBELL, III, M.D. (Parish of Jefferson)
REVERSED AND RENDERED. SEE OPINION.
Weimer, C.J., additionally concurs and assigns reasons.
Crichton, J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2020-CC-01409
BRENDA BERGERON, INDIVIDUALLY AND ON BEHALF OF HER
HUSBAND, DONALD BERGERON
VS.
DONALD RICHARDSON, M.D. AND PAUL HUBBELL, III, M.D.
On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson
CRAIN, J.
Plaintiff seeks review of a court of appeal judgment reversing the denial of
Defendants’ motion for bond for cost. The trial court found the motion untimely.
Applying the plain language of Louisiana Revised Statutes 13:4522, we reverse and
reinstate the trial court judgment.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Brenda Bergeron, individually and on behalf of her husband, Donald
Bergeron, filed a medical malpractice claim against Donald Richardson, M.D. and
Paul Hubbell, III, M.D. A medical review panel unanimously found Defendants
breached the standard of care. Two of the three panel members found Defendants
caused Mr. Bergeron’s pain, illness, and death. Plaintiff then filed wrongful death
and survival actions against Defendants.
Nearly six years later, Defendants filed a motion for bond for cost pursuant to
Louisiana Revised Statutes 13:4522. Plaintiff opposed the motion on several
grounds. First, she contended the motion was untimely under the plain language of
the statute. Second, she argued the costs claimed by Defendants were expenses, not
actual taxable costs. Finally, she challenged the constitutionality of the statute.
After a hearing, the trial court denied the motion for bond for cost, finding it
untimely. The trial court concluded Louisiana Revised Statutes 13:4522 precludes a
06/30/2021

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motion for a cost bond after the defendant’s answer is filed. Because the motion was
denied, the trial court found the constitutional claim moot.
Defendants’ application for supervisory review to the court of appeal was
granted. Finding the bond for cost motion timely, the appeals court reversed, citing
Whitson v. American Ice Co. , 164 La. 282, 11 3 So. 849 (La. 1927) and Jones v.
Williams, 191 La. 129, 184 So. 565 (La. 1938), where this court held defendant could
demand a cost bond “whenever the necessity might arise.” The court of appeal
remanded the matter to determine the necessity of a bond. Bergeron v. Richardson,
2020-0286 (La. App. 5 Cir. 11/10/20) (unpublished opinion). We granted this writ
to consider the proper interpretation of Louisiana Revised Statutes 13:4522.
Bergeron v. Richardson, 2020-01409 (La. 2/17/21), 310 So.3d 558.
DISCUSSION
Louisiana Revised Statutes 13:4522 provides:
The defendant before pleading in all cases may by motion
demand and require the plaintiff or intervenor to give security for the
cost in such case, and on failure to do so within the time fixed by the
court such suit or intervention, as the case may be, shall be dismissed
without prejudice. This section shall not apply to the Parish of Orleans
and to cases brought in forma pauperis, nor to the state or any political
subdivision thereof.

The statute expressly declares that a defendant’s demand for security for costs be
filed before pleading .1 Plaintiff argues this temporal condition is clear and
unambiguous. Because Defendants answered the petition and litigated the matter for
years before filing thei r motion, plaintiff contends the request is untimely.
Conversely, Defendants argue the plain language of the statute does not impose a
mandatory requirement to file the motion before filing an answer. Instead, the
context of the statute just allows a defendant to file the motion, then wait to answer
after the bond is posted. A defendant is not limited or restricted as to when he can

1 Louisiana Code Civil Procedure article 852 defines “pleadings” as “petitions, exceptions, written
motions, and answers.”

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file the motion. Rather, a bond can be demanded any time because “the defendant
cannot require the plaintiff to give a bond f or the payment of such costs as the
defendant is concerned in until the necessity therefore arises.” Jones, 184 So. 565.
“[T]he starting point for the interpretation of any statute is the language of the
statute itself.” Dejoie v. Medley, 2008-2223 (La. 5/5/09), 9 So.3d 826, 829. When
a statute is clear and unambiguous and its application does not lead to absurd
consequences, the provision must be applied as written with no further interpretation
made in search of the legislature’s intent. Id.; La. Civ.Code art. 9; La. R.S. 1:4.
Act 111 of 1926, the predecessor statute to Louisiana Revised Statutes
13:4522, was first addressed by this court in Whitson v. American Ice Co., 164 La.
282, 113 So. 849 (1927). Act 111 of 1926 provided:
Be it enacted by the Legislature of Louisiana, [t]hat the defendant
before pleading in all cases, the Parish of Orleans excepted, may by
motion demand and require the plaintiff, third opponent or intervenor
to give security for the cost in such case, and on failure to do so within
the time fixed by the Court such suit, third opposition or intervention,
as the case may be, shall be dismissed as in case of non -suit; provided
this shall not apply to cases brought in forma pauperis, nor to the state
or any political subdivision thereof. [emphasis added].

In Whitson, the defendant, before filing any pleading, sought a bond for cost,
which the trial court fixed at $1,000. This court annulled the bond order, finding the
defendant failed to prove it actuall y incurred costs. Without explicitly discussing
the timeliness of the bond request, this court found the request premature until actual
costs were incurred:
The record in this case, a copy of which was sent up in response to the
writ of certiorari, does not show that the defendant was about to incur
any expense or liability for fees which might ultimately be taxed as
costs against the plaintiff. The only recor d in that respect is a
typewritten ex parte order, apparently prepared by the defendant’s
attorneys, saying that, on their motion and on their ‘suggesting to the
court that plaintiff herein should furnish a bond for costs in this matter,
it is ordered that the plaintiff do furnish a bond for costs in this matter
in the sum of one thousand ($1,000) dollars.’ The amount is written in
with a pen.

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It is not the duty of the plaintiff in such case to show that, as far as the
defendant is concerned, there is no necessity for a bond for costs, or to
show how small a bond will suffice. The burden is on the party
demanding the security to show how large a bond is necessary to protect
him. 15 C. J. 207, par. 501. Some discretion in that respect is left with
the judge , to be exercised, however, with due regard for the actual
necessity for a bond and for the interest or motive of the party
demanding it.

The order of the district court requiring the plaintiff in this case to
furnish security for $1,000 of court costs i s annulled, reserving to the
defendant the right, on a proper showing, to demand, now or whenever
the necessity may arise, security for any court costs which the defendant
may actually have to incur or be responsible for in advance of a final
judgment condemning either party to pay such costs. The respondent,
American Ice Company, is to pay the costs of these supervisory
proceedings.

Whitson, 113 So. at 851.
This court again discussed Act 111 of 1926 in Jones. There , the defendant
requested a bond for cost after trial began. This court, relying on Whitson, found the
request timely:
It was not too late for the defendants in this case to demand the
bond for these costs after the trial of the suit on its merits was
commenced. The demand for the bond was ma de promptly when the
defendants were informed of the necessity for the bond. On this point
the plaintiff cites a per curiam opinion rendered by the Court of Appeal
for the First Circuit, in the case of Burnett v. Johnston, 19 La. App. 213,
140 So. 48, where it was held that a defendant could not demand a bond
for costs after ‘pleading’. The ruling in that case was never brought to
this court for review. On the face of the record it is doubtful whether
the Court of Appeal had jurisdiction to issue the writ of mandamus. The
ruling is in conflict with the ruling made by this court in Whitson v.
American Ice Co., 164 La. 283, 113 So. 849. In that case, the court
reserved to the defendant the right to demand, whenever the
necessity might arise, security for any court costs that the defendant
might incur or be obliged to pay in advance of a final judgment
condemning either party to pay the costs. The statute declares that
a defendant may demand the bond for costs ‘before pleading’. That
means that the defendant may, on a sufficient showing, refrain
from entering any plea in the case until the bond is furnished. It
does not mean that a defendant’s right to demand a bond for the
payment of such costs as he has an interest in securing is forfeited
by his entering any plea in the suit. And the reason for that, as
explained in Whitson’s Case, is that the defendant cannot require
the plaintiff to give a bond for the payment of such costs as the
defendant is concerned in until the necessity therefor arises. [italics
in original; boldfacing added.]

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Jones, 184 So. at 134-136.
Notably, the request for the bond in Whitson was made prior to any pleadings
being filed. Whitson, then, did not address the timeliness of the request for security,
but the necessity of it, which is a separate and distinct inquiry. Nevertheless, Jones
relied on Whitson to hold that the right to demand a bond d oes not arise until the
costs are actually incurred, regardless of when a pleading is filed. In doing so, the
court interpreted “before pleading” to be permissive, not restrictive. Relying on that
reasoning, Defendants in the instant case argue Section 4522 authorizes them to
demand security for cost at any time, even “before pleading.” They contend at the
outset of litigation, before any discovery and before a final judgment fixing costs, it
is difficult, if not impossible, to adequately determine costs the defendant might
incur or be obliged to pay; thus, it would be nonsensical to read the statute to impose
a premature time restraint on filing the motion.
We recognize a defendant seldom, if ever, incurs significant litigation costs
before filing an answer, which potentially complicates quantifying the bond amount
at that time. But, the statute requires the bond request be made “before p leading.”
“It is presumed that every word, sentence or provision in a statute was intended to
serve some useful purpose, that some effect be given to each such provision, and
that the Legislature used no unnecessary words or provisions.” See Sultana Corp. v.
Jewelers Mut. Ins. Co., 2003-0360 (La. 12/3/03), 860 So. 2d 1112, 1119 . To give
meaning to every word in the statute, we find the demand for a cost bond must be
filed before the defendant files any pleadings in the case. This harmonizes Whitson
with the language of the statute so that the words “before pleading” are not rendered
superfluous.
If we adopt Defendants’ logic, we will necessarily read out of the statute the
temporal requirement imposed by the legislature. If a defendant can file at any time,
there is no need to refer to “before pleading” as it would be just as unnecessary to

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include a reference to “during trial,” “after closing arguments,” or any other point
during litigation. If the legislature intended to allow a defendant to request a b ond
any time in the litigation, it would have either said so or eliminated the temporal
reference altogether.2
We find further support for our interpretation in the statute’s references to “in
all cases,” “in such case,” and the accompanying consequence of dismissal of the
“suit or intervention,” in its entirety. Reading these phrases in context provides
further evidence that the words “before pleading” refer to the initiation of the suit,
whether by petition or intervention, not a particular point during the proceeding. The
legislature contemplated the request for security be made from the moment a
defendant is brought into the suit. Allowing dismissal of a suit years into litigation
for failure to post a cost bond, the result if a defendant is authorized to request
security at any time, would waste judicial resources. On the other hand, dismissing
a suit without prejudice at its inception because the plaintiff is unwilling or unable
to post the bond protects both defendants and the justice system from meritless suits.
We recognize that Section 4522 was enacted after the Jones decision; thus,
we have never directly interpreted this statute. But, the operative language of Act
111 of 1926 did not change and was incorporated into Section 4522. To the ext ent
Jones is still controlling precedent for interpreting Section 4522, it is overruled as it
conflicts with the clear language of the statute.
Defendants argue jurisprudence constante prevents our current interpretation
of the statute. In Doerr v. Mobil Oil Corp., 2000-0947 (La. 12/19/00), 774 So. 2d
119, 128–29, opinion corrected on reh'g, 2000-0947 (La. 3/16/01), 782 So.2d 573,
this court discussed the doctrine of jurisprudence constante:

2 Any concern about the bond amount being speculative early in the proceeding is addressed by
the rules regarding judicial bonds. See Louisiana Code Civil Procedure article 5123, et seq.,
relating to testing the sufficiency of bonds, nullifying, and furnishing new bonds or supplemental
bonds.

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The Civil Code establishes only two sources of law in Louisiana :
legislation and custom. See La. Civ.Code art. 1. Within these two
categories, legislation is superior to custom and will supercede it in
every instance. See La. Civ.Code art. 3. Judicial decisions, on the other
hand, are not intended to be an authoritative source of law in Louisiana.
See A.N. Yiannopoulos, Louisiana Civil Law System § 35, p. 53 (1977).
Consequently, Louisiana courts have frequently noted that our civilian
tradition does not recognize the doctrine of stare decisis in our state.
See Ardoin v. Hartford Acc't & Indem. Co., 360 So.2d 1331, 1334 (La.
1978); Gulf Oil Corp. v. State Mineral Bd., 317 So.2d 576, 591 (La.
1975); Carter v. Moore, 258 La. 921, 959, 248 So.2d 813, 829 (1971);
Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 296, 236 So.2d 216,
218 (1970), overruled on other grounds, Jagers v. Royal Indem. Co.,
276 So.2d 309, 312 (La. 1973); City of New Orleans v. Treen, 421 So.2d
282, 285 (La.App. 4th Cir. 1982); State v. Placid Oil Co., 274 So.2d
402, 414 (La.App. 1st Cir. 1972).

Instead, a long line of cases following the same reasoning within this
state forms jurisprudence constante. See Heinick v. Jefferson Par. Sch.
Bd., 97–579, p. 4 (La.App. 5 Cir. 10/28/97), 701 So.2d 1047, 1050; City
of New Orleans, 421 So .2d at 285. As summarized by this court in
Johnson:

Fundamental and elementary principles recognize that
certainty and constancy of the law are indispensable to
orderly social intercourse, a sound economic climate and
a stable government. Certainty is a supreme value in the
civil law system to which we are heirs. In Louisiana,
courts are not bound by the doctrine of stare decisis, but
there is a recognition in this State of the doctrine of
jurisprudence constante. Unlike stare decisis, this latter
doctrine does not contemplate adherence to a principle of
law announced and applied on a single occasion in the
past.

Johnson, 256 La. at 296, 236 So.2d at 218. Under the civilian
tradition, while a single decision is not binding on our courts, when
a series of decisions form a “constant stream of uniform and
homogenous rulings having the same reasoning,” jurisprudence
constante applies and operates with “considerable persuasive
authority.” James L. Dennis, Interpretation and Application of the
Civil Code and the Evaluation of Judicial Precedent, 54 La. L.Rev. 1,
15 (1993). Because of the fact that “one of the fundamental rules of
[the civil law tradition] is that a tribunal is never bound by the
decisions which it formerly rendered: it can always change its
mind,” 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State
Law Inst. trans.1959) (12th ed.1939), prior holdings by this court
are persuasive, not authoritative, expressions of the law. See
Yiannopoulos, supra, at § 35, p. 5 Thus, it is only when cour ts
consistently recognize a long -standing rule of law outside of
legislative expression that the rule of law will become part of
Louisiana’s custom under Civil Code article 3 and be enforced as
the law of the state. See La. Civ.Code art. 3.

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In sum, the chief distinction between jurisprudence constante and stare
decisis is this: “A single case affords sufficient foundation for the
latter, while a series of adjudicated cases, all in accord, form the
basis for the former.” Yiannopoulos, supra, at § 35, p. 55. [boldfacing
added; footnote omitted].
The only reported case citing Jones relative to timeliness is Raborn v. Donica,
334 So.2d 471 (La. App. 1 Cir.), writ refused, 338, So. 2d 111 (La. 1976). In Raborn,
the defendant filed his motion for a bond for cost prior to filing his answer. The
plaintiff then sought a preliminary default, arguing the defendant failed to timely
answer. The trial court granted the default judgment. The defendant sought to
nullify the default judgment, but the trial court denied relief. The court of appeal
reversed, finding the bond motion allowed the defendant to delay filing his answer.
The court stated:
In the instant case, the defendant has not answered the plaintiff’s
petition. Therefore, under the literal word ing of Article 1701, the
plaintiff would be entitled to a default judgment. However, as
previously noted, defendant demanded security for costs before the
expiration of time in which to answer.
In this regard, we note that LSA -R.S. 13:4522 provides, in
pertinent part:
‘The defendant before pleading in all cases may by
motion demand and require the plaintiff or intervenor to
give security for the cost in such case, and on failure to do
so within the time fixed by the court such suit or
intervention, as t he case may be, shall be dismissed
without prejudice. * * *’ (Emphasis by the [Raborn] court)
In effect, Section 4522 allows a defendant to delay filing any
pleading, including his answer, until the plaintiff has met his demand
to post security for costs . Since the defendant was not required to
answer while the motion was pending, the defendant did not ‘(fail) to
answer within the time prescribed by law’ (Article 1701) so as to entitle
plaintiff to a default judgment.
The foregoing analysis of Section 4 522 is in accord with the
Louisiana Supreme Court’s interpretation of the statute’s source, Act
No. 111 of 1926. In Jones v. Williams, 191 La. 129, 184 So. 565 (1938),
the Court said:
‘* * * The statute declares that a defendant may
demand the bond for costs ‘before pleading’. That means

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that the defendant may, on a sufficient showing, refrain
from entering any plea in the case unt il the bond is
furnished. * * *(191 La. at 135, 184 So. at 567)
Raborn, 334 So.2d at 472-73.
While Raborn cites Jones, the motion for bond in Raborn was filed prior to
any pleadings. Therefore, Raborn is consistent with the plain language of the statute
and does not support the jurisprudential rule created by Jones. Other cases cite Jones;
however, they address the suff iciency of proof required for the bond, not the
timeliness of the request. 3 The timeliness rule enunciated in Jones appears to be
confined to that single case.
We decline to assign Jones the status of jurisprudence constante or custom.
We also note when a statute specifically disposes of an issue, resort to jurisprudence
is unnecessary. “[B]ecause of Louisiana’s civilian tradition, Louisiana courts must
begin every legal analysis by examining primary sources of law, consisting of
constitution, codes, an d statutes; jurisprudence, even when it arises to the level
of jurisprudence constante, is a secondary law source.” Delta Chemical Corp. v.
Lynch, 2007-0431 (La. App. 4 Cir. 2/27/08), 979 So. 2d 579, 588, writ denied, 2008-
0683 (La. 5/30/08), 983 So. 2d 898, and writ denied, 2008-0761 (La. 5/30/08), 983
So. 2d 904 . See also Alvin B. Rubin, Hazards of a Civilian Venturer in Federal
Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1372 (1988).
Jurisprudence constante does not preclude u s from overruling Jones and applying
the plain language of Section 4522.
Because we find the cost bond motion was untimely, we pretermit discussion
of either the necessity or amount of the bond. Nor do we reach the constitutionality
of the statute. See Blanchard v. State Through Parks and Recreation
Commission, 1996–0053 (La. 5/21/96), 673 So.2d 1000, 1002. (Courts
3 See, e.g., Carter v. Phillips, 337 So.2d 187 (La. 1976) and Law Offices of Robert C. Lehma n v.
Rogers, 2017-0436 (La. App. 1 Cir. 9/18/2017), writ denied, 2017-1771 (La. 12/5/2017).

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should avoid constitutional rulings when the case can be disposed of on non -
constitutional grounds.)
CONCLUSION
The judgment of the court of appeal is reversed and the trial court’s judgment
denying Defendants’ motion for bond for costs as untimely is reinstated.
REVERSED AND RENDERED.

SUPREME COURT OF LOUISIANA
NO. 2020-CC-01409
BRENDA BERGERON, INDIVIDUALLY AND ON BEHALF OF HER
HUSBAND, DONALD BERGERON
VS.
DONALD RICHARDSON, M.D. AND PAUL HUBBELL, III, M.D.
On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson
WEIMER, C.J., additionally concurring.
Concurring in the astute analysis of my colleague, I write separately only to
point out my agreement with District Judge Scott Schlegel’s assessment that this case
demonstrates the “beauty of living in a Civilian jurisdiction.” While the decisions of
this court are persuasive authority and, generally, should be followed in the lower
courts to ensure consistency and stability, the district judge correctly noted that,
ultimately, in a civilian jurisdiction, legislation is the superior source of law. In this
case, a re-examination of the decision in Jones v. Williams, 191 La. 129, 184 So. 565
(1938), was called for, and the holding by the district judge here proved prescient.
When presented with the issue of whether La. R.S. 13:4522 requires that a demand
for security for costs be filed before pleadings are filed (and not simply when such
costs are actually incurred), the district judge correctly turned to a statutory analysis,
drawing from the clear wording of the statute to reach a conclusion. That analysis is
vindicated by the court’s decision today. As the opinion in this case correctly notes,
the rule announced in Jones has been confined to that single case; it has hardly
attained the status of jurisprudence constante and was properly overruled based on
the words of the statute.
06/30/2021

S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01409
B
RENDA BERGERON, INDIVIDUALLY AND ON BEHALF OF HER
HUSBAND, DONALD BERGERON
VS.
DONALD RICHARDSON, M.D. AND PAUL HUBBELL, III, M.D.
O
n Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson
C
RICHTON, J., additionally concurs and assigns reasons:
I
agree with the majority that this Court is bound primarily to interpret statutes
and code articles by their plain meaning, where their meaning is clear . As Judge
Alvin Rubin succinctly noted with respect to the Civilian tradition:
In those civilian systems that have adopted a code, the respect due the
code and the manner of interpreting it are based on the thesis of
legislative supremacy, combined with respect for the inherent qualities
of the code and the Romanist tradition. Judges are primarily interpreters
of law, without the law-development functions assigned to common
law judges.
Alvin B. Rubin, Hazards of A Civilian Venturer in Federal Court: Travel and Travail
on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988). Where, as here, there is no
jurisprudence constante to persuade the Court’s ruling, the Civil Code’s directives
on statutory construction must prevail.
06/30/2021