Ansanta Cole, Osborne Picou, Jr., and Tonia Hall, as Survivors on Behalf of Osborne Picou, Sr., Individually and on Behalf of All Others Similarly Situated Versus St. Joseph of Harahan, L.L.C., Highpoint Healthcare, L.L.C., and Plantation Management Company, L.L.C.

ANSANTA COLE, ET AL. NO. 24-C-148

VERSUS FIFTH CIRCUIT

ST. JOSEPH OF HARAHAN, L.L.C., ET AL. COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 827,574 , DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

August 07, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Susan M. Chehardy,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED, JUDGMENT REVERSED, EXCEPTION OF NO
CAUSE OF ACTION SUSTAINED; JUDGMENT GRANTING
DISCOVERY DISMISSED AS MOOT, CASE DISMISSED WITH
PREJUDICE
TSM
SMC
SUS

COUNSEL FOR DEFENDANT/RELATOR,
PLANTATION MANAGEMENT COMPANY, L.L.C., HIGHPOINT
HEALTHCARE, L.L.C., AND ST. JOSEPH OF HARAHAN, L.L.C.
Jimmy R. Faircloth, Jr.
Mary K. Price
Barbara B. Melton

COUNSEL FOR PLAINTIFF/RESPONDENT,
ANSANTA COLE, OSBORNE PICOU, JR., AND TONIA HALL, AS
SURVIVORS ON BEHALF OF OSBORNE PICOU, SR., INDIVIDUALLY AND
ON BEHALF OF ALL OTHER SIMILARLY SITUATED
Matthew M. Coman
Jordan M. Jeansonne
Stephen M. Huber
Christopher T. Whelen

MARCEL, J.

Relators/Defendants, St. Joseph of Harahan, L.L.C., Highpoint Healthcare,

L.L.C., and Plantation Management Company, L.L.C. (collectively “St. Joseph”),

seek supervisory review of the trial court’s February 27, 2024, judgment (1)

overruling their peremptory exception of no cause of action and (2) granting

plaintiffs’ motion to compel discovery and motion to compel the La. C.C.P. art.

1442 deposition of St. Joseph.

For the following reasons, we grant St. Joseph’s writ application, reverse the

trial court’s February 27, 2024, judgment, and sustain St. Joseph’s peremptory

exception of no cause of action, dismissing plaintiffs’ claims against it, with

prejudice. Consequently, we also reverse the trial court’s February 27, 2024,

judgment, vacating the order for St. Joseph to produce discovery and present for a

La. C.C.P. art 1442 deposition, as moot.

FACTS AND PROCEDURAL HISTORY

St. Joseph is a skilled nursing facility located in Harahan, Louisiana.

Plaintiffs Ansanta Cole, Osborne Picou, Jr. and Tonia Hall, are the surviving

children of Osborne Picou, Sr. This action arises from Mr. Picou’s admission and

approximate twelve-month residency at St. Joseph as well as the admission and

residency of other similarly situated individuals.1 In their second amended class

action petition for damages (“second amended petition”), plaintiffs allege St.

Joseph’s affirmatively represented that Mr. Picou and others would receive nursing

treatment services in accordance with the Louisiana Nursing Home Residents Bill

of Rights (NHRBR)2 while knowing its facility was understaffed. This

misrepresentation, the second petition for damages alleges, induced Mr. Picou and

1
The record indicates that Mr. Osborne Picou, Sr. was a nursing home resident at the facility on or about
August 10, 2021 to on or about August 2022.
2
La. R.S. 40:2010.6, et seq.

24-C-148 1

others to enter residency at the facility. It is also alleged that St. Joseph

intentionally withheld resources to increase its profits, resulting in actual nursing

staffing hours that were well below applicable federal nursing home administrative

standards which violated the NHRBR.

Plaintiffs’ second amended petition recites causes of action for fraud under

La. C.C. arts. 2315 and 1953 for which monetary damages, attorney’s fees and

costs are sought. The only damage alleged with specificity is the “… diminution

of the value between the nursing services promised by DEFENDANTS and those

actually rendered to Mr. Picou and others similarly situated, …” It further moves

for certification to proceed as a class action on behalf of current and former St.

Joseph residents.

In response to plaintiffs’ second amended petition, St. Joseph filed

peremptory exceptions of no right of action and no cause of action, and a dilatory

exception of improper cumulation of actions. Prior to the exceptions hearing,

plaintiffs filed a motion to compel discovery. St. Joseph objected to plaintiff’s

discovery requests, moving for entry of a protective order limiting discovery to the

threshold issue of class certification, and objected to plaintiffs’ notice of a La.

C.C.P. art. 1442 deposition of St. Joseph.

St. Joseph’s peremptory and dilatory exceptions and discovery motions

came for hearing on January 25, 2024. On February 27, 2024, the trial court issued

its written judgment which (1) sustained St. Joseph’s exception of no right of

action as to plaintiffs’ claim for injunctive relief under La. C.C.P. art. 3601, as Mr.

Picou is no longer a resident of the facility; (2) overruled St. Joseph’s exception of

no cause of action as to plaintiffs’ fraud claims; and (3) granted plaintiffs’ motion

to compel discovery, allowing plaintiffs to conduct merit-based discovery prior to

certification of a class. As part of the judgment, the trial court stayed discovery,

allowing St. Joseph the opportunity to seek review by this Court.

24-C-148 2

This timely writ application filed by St. Joseph followed, which presents

four assignments of error:

1. The trial court erred in overruling Defendants’ exception of no
cause of action for Plaintiffs’ Article 2315 claim because the scope
of the duty owed under the NHRBR does not extend to damage
awards.
2. The trial court erred in overruling Defendants’ exception of no
cause of action for Plaintiffs’ Article 2315 claim where Plaintiffs
do not allege compensable injuries or actual harm.
3. The trial court erred in overruling Defendants’ exception of no
cause of action for Plaintiffs’ Article 1953 claim because the
NHRBR creates a statutory duty, not an implied contractual
obligation, as part of a resident admissions agreement.
4. The trial court erred in allowing Plaintiffs to conduct broad-based
merits discovery prior to certification of a class action under La.
C.C.P. art. 591.

DISCUSSION

Exception of No Cause of Action – Standard of Review

Three of St. Joseph’s four assignments of error address the trial court’s

denial of its exceptions of no cause of action to plaintiffs’ second amended

petition. The exception of no cause of action tests the legal sufficiency of the

petition by determining whether the law affords a remedy against the defendant to

anyone under the factual allegations of the petition. Everything on Wheels Subaru,

Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). No evidence may be

introduced to support or controvert the objection that the petition fails to state a

cause of action. La. C.C.P. art. 931. The exception is triable on the face of the

petition, and for the purpose of determining the issues raised by the exception, the

well-pleaded facts in the petition must be accepted as true, and all inferences

drawn in favor of the non-moving party for the purposes of the exception. Fink v.

Bryant, 01-987 (La. 11/28/01), 801 So.2d 346, 349. The inquiry is whether the

petition, applying the foregoing standards, states any valid cause of action for

relief. IECI, LLC v. South Central Planning and Development Commission, Inc.,

24-C-148 3

21-382 (La. App. 5 Cir. 2/23/22), 336 So.3d 601, 611. A petition should not be

dismissed for failure to state a cause of action unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of any claim which would entitle

him to relief. Fink, 801 So.2d at 349. Because the exception of no cause of action

raises a question of law and the trial court’s decision is based solely on the

sufficiency of the petition, review of the trial court’s ruling on an exception of no

cause of action is de novo. Fink, supra.; City of New Orleans v. Bd. of Comm’rs of

Orleans Levee Dist., 93-690 (La. 7/5/94), 640 So.2d 237, 253.

In its exception of no cause of action, St. Joseph contends that plaintiffs’

second amended petition fails to state a cause of action in fraud under La. C.C. art.

2315. As an initial matter, plaintiffs argue this Court has previously rejected

defendants’ same arguments when we denied review of defendants’ writ

application in Cambre v. Riverlands Home Grp., L.L.C., 23-271 (La. App. 5 Cir.

6/27/23), 2023 WL 4195827. We disagree. The denial of a writ application has no

precedential value for any purpose, and does not bar reconsideration of the same

issue. Horton v. Blackrock Aggregates, LLC, 15-1094 (La. App. 4 Cir. 3/8/17), 213

So.3d 429.

1. Delictual Fraud - La. C.C. art. 2315

In its first two assignments of error, St. Joseph asserts the trial court erred in

overruling its exception of no cause of action for plaintiffs’ La. C.C. art. 2315

claim. St. Joseph argues the scope of its duty under the NHRBR does not extend to

monetary damage awards and that plaintiffs’ second amended petition lacks

allegations of actual harm.

Under Louisiana law, cases presenting causes of action for misrepresentation

are evaluated using a duty-risk analysis. Daye v. General Motors Corp., 97-1653

(La. 9/9/98), 720 So.2d 654, 659. Elements of the cause of action require a

24-C-148 4

plaintiff to show: (1) the defendant had duty to conform his conduct to a specific

standard of care (the duty element); (2) the defendant failed to conform his conduct

to the appropriate standard; (3) the defendant’s substandard conduct was a cause-

in-fact of the plaintiff’s injuries (breach of duty element); (4) the substandard

conduct was a legal cause of the plaintiff’s injuries (the scope of the liability or

scope of protection element); and (5) actual damages (damages element). For

liability to attach, a plaintiff must be able to prove every element of the duty-risk

analysis. Wiltz v. Brothers Petroleum, L.L.C., 13-332 (La. App. 5 Cir. 4/23/14),

140 So. 3d 758, 766, writs denied, 14-1252 (La. 10/10/14), 151 So.3d 581, and 14-

1298 (La. 10/10/14), 151 So.3d 583.

This second amended petition alleges that plaintiffs suffered legal harm

because St. Joseph intentionally understaffed its nursing home facility below

NHRBR standards in order to increase profits to its ownership. Plaintiffs posit a

duty upon a nursing home to inform residents of its non-compliance with NHRBR

staffing and service requirements. They allege that duty was breached when St.

Joseph knowingly and intentionally misrepresented the services to be delivered to

Mr. Picou and its other residents. Breach of that duty, plaintiffs contend, was the

legal cause of their damages.

De novo review of the second amended petition shows that plaintiffs seek

the value of services not delivered as monetary damages. In paragraph 21,

plaintiffs allege that St. Joseph failed to provide resources which resulted in

staffing deficits in violation of the NHRBR. The relief plaintiffs pray for is

recovery of the “the diminution of the value between nursing services promised by

defendants and those rendered to Mr. Picou…” It does not contain factual

allegations describing any other damage suffered by plaintiffs.

The essence of their delictual fraud claim is St. Joseph’s alleged failure to

provide adequate staffing required under the NHRBR. Monetary damages sought

24-C-148 5

are the value of the services that were not provided to Mr. Picou and others. While

a claim for other damages incidental to the alleged fraudulent misrepresentations of

St. Joseph are pled, the second amended petition does not allege Mr. Picou or any

other resident was actually harmed from inadequate staffing.

A close reading of the petition shows that plaintiffs’ La. C.C. art. 2315

claim is inextricably interwoven with violations of the NHRBR.3 Causes of action

for actual monetary damages based upon violations of the NHRBR were statutorily

permitted prior to 2003. However, legislative amendments eliminated claims for

monetary damages arising from violation of the NHRBR. Private actions for

NHRBR violations are limited to claims by nursing home residents for injunctive

relief plus attorney’s fees and costs. Heinrich v. Maison De’Ville Nursing Home of

Harvey, LLC, 21-240 (La. App. 5 Cir. 6/30/21) (unpublished writ disposition);

Knight v. Jefferson Healthcare Center, 21-736 (La. App. 5 Cir. 2/10/20)

(unpublished writ disposition).

The operative facts alleged in the second amended petition are alleged

violations of the NHRBR. Accepting those allegations as true, Louisiana law does

not permit causes of action to recover monetary damages for NHBR violations.

Because plaintiffs’ second amended petition does not include allegations

supporting a cause of action based in fraud under La. C.C. art. 2315 outside of the

NHRBR violations, we find that the second amended petition fails to state a cause

of action.

2. Contractual Fraud - La. C.C. art. 1953

In its third assignment of error, St. Joseph contends plaintiffs’ second

amended petition fails to state a cause of action for contractual fraud under La.

C.C. art. 1953, including fees under La. C.C.P. art. 1958. Louisiana law

recognizes causes of action for contractual fraud by alleging fraud in the formation

3
Plaintiffs’ second amended petition paragraphs, 3, 10, 11, 12, 13, 18, and 21.

24-C-148 6

of the contract. Stutts v. Melton, 13-557 (La. 10/15/13), 130 So.3d 808, 813-815.

The essential elements of intentional or fraudulent misrepresentation in the

formation of a contract are (1) misrepresentation of a material fact (2) made with

the intent to deceive, (3) causing justifiable reliance with resulting injury. See

McGaha v. Franklin Homes, Inc. 21-244 (La. App. 4 Cir. 2/4/22), 335 So.3d 842,

865.

Under the provisions of the NHRBR, all nursing homes are required to adopt

and make public a statement of the rights and responsibilities of its residents and

treat its residents in accordance with the rights listed therein. See La. R.S.

40:2010.8. The basis for the alleged contractual fraud is the statement regarding

staffing that all nursing home facilities are required to provide to residents under

La. R.S. 40:2010.8.

In this matter, plaintiffs’ contractual fraud theory relies on the admission

agreements incorporated in the NHRBR. Plaintiffs theorize the admission

agreements created an implied contractual obligation, which obligates nursing care

facilities to disclose non-compliance with the NHRBR to prospective residents.

However, plaintiffs’ second amended petition fails to demonstrate an injury to Mr.

Picou or others beyond the value of services not received. As with their claim for

delictual fraud, the operative facts of plaintiffs claim for contractual fraud is woven

through the NHRBR. Again, the legislature, by its 2003 amendment to La. R.S.

40:2010.9 has limited claims under the NHRBR to that of injunctive relief by a

nursing home resident. The exclusive remedy since the amendment of the statute

is injunctive relief, plus attorney fees and cost. See Butler-Bowie v. Olive Branch

Senior Care Ctr., 52,520 (La. App. 2 Cir. 2/27/19), 2 So.3d 478,484; see also

Watson v. Woldenberg Vill., Inc. 16-0159 (La. App. 4 Cir. 10/5/16), 203 So.3d

317, 321, writ denied, 16-1964 (La. 12/16/16), 211 So.3d 1168. Consequently, we

24-C-148 7

find plaintiffs’ second amended petition fails to state a cause of action for

contractual fraud under La. C.C. art. 1953.

Upon de novo review, we find for the foregoing reasons that the trial court

erred in overruling the exception of no cause of action. We reverse the trial court's

judgment overruling St. Joseph’s exception of no cause of action and dismiss, with

prejudice, plaintiffs’ claims for failure to state a cause of action for delictual fraud

under La. C.C. art. 2315 and contractual fraud and fees under La. C.C. arts. 1953

and 1958 set forth in their second amended petition. Because violation of the

NHRBR is the nucleus of plaintiffs’ operative facts, we further find that

amendment would be futile. As we have dismissed plaintiffs’ second amended

petition, St. Joseph’s writ application addressing the plaintiffs’ motion to compel

discovery and La. C.C.P. art. 1442 deposition is moot. The judgment granting

plaintiffs’ motion to compel discovery is vacated.

WRIT GRANTED, JUDGMENT REVERSED, EXCEPTION OF NO CAUSE
OF ACTION SUSTAINED; JUDGMENT GRANTING DISCOVERY
DISMISSED AS MOOT, CASE DISMISSED WITH PREJUDICE

24-C-148 8

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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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
AUGUST 7, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-148
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
BARBARA B. MELTON (RELATOR) JIMMY R. FAIRCLOTH, JR. (RELATOR) MARY K. PRICE (RELATOR)
CHRISTOPHER T. WHELEN (RESPONDENT) JORDAN M. JEANSONNE (RESPONDENT) STEPHEN M. HUBER (RESPONDENT)

MAILED
TAYLOR M. BOLOGNA (RESPONDENT) MATTHEW M. COMAN (RESPONDENT)
ATTORNEY AT LAW ATTORNEY AT LAW
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SUITE 2200 SUITE 2045
NEW ORLEANS, LA 70163 NEW ORLEANS, LA 70130