Ollie Mae Pecot v. Calcasieu-Cameron Hospital Service District, Etc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-1102

OLLIE MAE PECOT

VERUS

CALCASIEU-CAMERON HOSPITAL SERVICE DISTRICT d/b/a
WEST CALCASIEU CAMERON HOSPITAL and
ABC INSURANCE COMPANY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-6318
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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ARTHUR J. PLANCHARD,
JUDGE PRO TEMPORE
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Court composed of Billie Colombaro Woodard, Elizabeth A. Pickett, and Arthur J.
Planchard, Judges.

AFFIRMED.

WOODARD, J. dissents and assigns written reasons.

Frank A. Granger
Attorney at Law
1135 Lakeshore Dr., Suite 5A
Lake Charles, LA 70602
Counsel for Plaintiff/Appellant:
Ollie Mae Pecot

Rick Bryant, District Attorney
Terry J. Manuel, Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
Counsel for Defendant/Appellee:
Calcasieu-Cameron Hospital Service District d/b/a/
West Calcasieu Cameron Hospital

PLANCHARD, Judge.

Plaintiff, Ollie Mae Pecot, appeals a judgment of the trial court dismissing her

suit against Defendant, Calcasieu-Cameron Hospital Service District d/b/a West

Calcasieu Cameron Hospital, for abandonment. We affirm the judgment of the trial

court.

LAW, FACTS AND DISCUSSION

Inasmuch as this appeal turns on factual determinations by the trial judge, we

must review the record using the manifest error-clearly wrong standard of appellate

review. That standard was recently reviewed by our supreme court in Cenac v.

Public Access Water Rights Assn., 02-2660, pp. 9-10 (La. 6/27/03), 851 So.2d 1006,

1023:

In civil cases, the appropriate standard for appellate review of
factual determinations is the manifest error-clearly wrong standard which
precludes the setting aside of a trial court's finding of fact unless those
findings are clearly wrong in light of the record reviewed in its entirety.
Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not
merely decide if it would have found the facts of the case differently, the
reviewing court should affirm the trial court where the trial court
judgment is not clearly wrong or manifestly erroneous. Ambrose v. New
Orleans Police Department Ambulance Service, 93-3099, 93-3110,
93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

In the case sub judice, the trial court, in its “Written Reasons” set out the facts

and the law in great detail. As our review of the law and the evidence find both to be

accurate, we adopt the trial court’s written reason for judgment as our own:

This matter came on to be heard pursuant to regular fixing on
RULE TO SHOW CAUSE WHY SUIT SHOULD NOT BE DISMISSED
ON GROUNDS ABANDONMENT, filed June 20, 2002. A hearing was
held on October 2, 2002, and the record was left open to give the parties
additional time to present additional evidence and was eventually re-
fixed to January 27, 2003. In addition to the evidence previously
presented at the original hearing, the parties submitted the deposition of
Dr. Buttross, together with additional memorandums and the matter was
taken under advisement.

It appears from the record of these proceedings that Ollie Mae
Pecot (hereinafter, Plaintiff) claims damages for medical malpractice

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based on an event occurring on either February 2, 1991 or February 5,
1991.

A medical review panel was convened and met in September
1991, and their final opinion was issued on September 21, 1998.

The PETITION FOR DAMAGES in these proceedings was filed
on November 25, 1998, on behalf of the Plaintiff by Mr. Frank Granger.
West Calcasieu Cameron Hospital (hereinafter WCCH) filed its
ANSWER on January 6, 1999. There is no further activity until the
instant RULE was filed more than three (3) years later.

The evidence submitted consisted of the following:

1. The deposition of Plaintiff taken on September 10, 2002,
wherein the Plaintiff stated that she had limited education,
suffered from many ailments, took a variety of medications,
had been hospitalized on several occasions, at least two (2)
of which were for mental depression problems and had
other personal problems. She believed that she could not
change attorneys. She made numerous efforts to contact
Mr. Bobby Pitre, who she understood was the attorney
handling her case on referral from Mr. Frank Granger. Her
efforts consisted of calling Pitre (about 40 times), going by
his office (about 40 times), sometimes leaving notes when
she went by (about 10 times), going by his father's house on
many occasions, and calling him at his father's house
several times as well. On one occasion, after she had gone
to Mr. Pitre's office and received no answer to her knock on
the door, Mr. Pitre called her when she returned home and
stated that he was at the office when she came by and in
response to her question about why she was ignored by
him, he said "I'm living - that is my house now, I'm living
out of it."

2. The attachments to the Plaintiff's brief, which included:

a. Appointments of the Plaintiff with Dr.
Buttross of May 28, 2002, July 25, 2002, and
October 31, 2002; b. A Patient Account
Inquiry from the Institute of Neuropsychiatry
reflecting dates of service with the type and
diagnosis for the dates of September 4, 1999
through September 15,1999, September
23,1999, October 25, 1999, August 23, 2000,
April 18, 2001, October 11, 2001;

c. Lake Charles Memorial Hospital Abstract
Inquiry reflecting admissions for Plaintiff of

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June 1, 1999, November 2, 1999 (discharged
the same day), October 19, 2001, June
15,2002 (discharged on June 17, 2002);

d. Christus Health Clinical Visit Information
Processor for Plaintiff reflecting treatment or
admissions for the following dates:
1. August19,1999;
2. September 3, 1999;
3. September 4, 1999 to September 15, 1999 for mental
health purposes;
4. November 10, 1999 to November 11, 1999;
5. January 13, 2000;
6. February 2, 2000;
7. February 4, 2000 to February 6, 2000;
8. March 8, 2000;
9. March 9, 2000;
10. March 12, 2000;
11. April 14, 2000 to April 22, 2000;
12. April 28, 2000 through May 2, 2000;
13. June 28, 2000;
14. October 12,2000;
15. October 22,2000 through October 24,2000;
16. December 12, 2000;
17. December 15, 2000;
18. December 16,2000;
19. January 11, 2001;
20. February 7, 2001 through February 12, 2001;
21. July 7, 2001 through July 12, 2001;
22. December 12, 2001;
23. December 13, 2001;
24. January 29, 2002;
25. May 8, 2002;
26. May 17, 2002 through May 21, 2002 for mental
health reasons;
27. August 27, 2002 through August 30, 2002;

e. Correspondence from Frank Granger to Bobby
Pitre dated January 20, 1999, confirming a
lunch conference and a question as to whether
or not Mr. Pitre would be interested in
handling the Plaintiffs case;

f. Correspondence from Mr. Granger to Mr. Pitre
dated October 5, 1999, reflecting Mr.
Granger's concern that abandonment not take
place and an understanding that Mr. Pitre had
met several times with the Plaintiff since this
file had been returned to Mr. Pitre;

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g. Correspondence from Mr. Granger to Mr. Pitre
dated December 23, 1999, confirming a brief
discussion between Pitre and Granger
concerning contact by Terry Manuel on behalf
of WCCH concerning settlement of the case
and requesting information concerning status
of this matter and that no Motion and Order to
Enroll As Counsel had been received;

h. Correspondence from Mr. Pitre to Plaintiff
dated January 4,2001, requesting a meeting
with her;

I. Correspondence from Mr. Pitre to Mr. Manuel
dated January 25, 2001, seeking settlement;

j. Correspondence from Mr. Manuel to Mr. Pitre
dated March 12, 2001, requesting some kind of
settlement proposal;

3. The deposition of Dr. David Buttross, taken November 6,
2002, confirms his treatment and diagnosis of the Plaintiff
and although he opines that she would have difficulty taking
care of her business because of her varied mental status and
her medications, he never felt that she was incapable of
taking her own medications, he never reached a point where
he felt she should have been interdicted or confined in a
hospital or mental institution even though he might have
considered re- " hospitalization if she had not gotten better
after her initial hospitalization of 1999.

Louisiana Code of Civil Procedure, Article 561 (a)(1), provides
that an action is abandoned when the parties fail to take any step in its
prosecution or defense in the trial court for a period of three years.

The Louisiana Supreme Court has stated that

The source of article 561 is Louisiana Civil Code
article 3519, which is located in the section of the Civil
Code dealing with the interruption of prescription..(and), the
rule on abandonment of actions is a species of liberative
prescription, separate and distinct from the prescription of
the substantive claim itself.

As noted in the original comments appended to article 561, two
early exceptions to the five-year rule of abandonment contained in article
3519 were recognized: (1) when the failure to prosecute was caused by
circumstances beyond plaintiff's control, and (2) when the defendant
waived his right to plead abandonment by taking any action in the case

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inconsistent with an intent to treat the case as abandoned. See La.Code
Civ.P. art. 561, Comment (C)(1960) and authorities cited therein.
Properly viewed, these two exceptions evidence two well-established
rules of prescription: (1) prescriptions does not run against one who is
unable to interrupt it, and (2) prescription may be interrupted by
acknowledgment. 307 So.2d 308, Melancon v. Continental Cas. Co.,
(La. 1975)[sic].

The law favors maintaining an action whenever possible so that the
aggrieved party has his day in court. The policy underlying this
requirement is the prevention of protracted litigation that is filed for
purposes of harassment or without a serious intent to hasten the claim to
judgment. Article 561 is not to be used to dismiss cases where the
plaintiff has clearly demonstrated before the court during the prescribed
period that he does not intend to abandon the action. It is not designed to
dismiss actions on mere technicalities but to dismiss those actions which
in fact have been abandoned. Dismissal of a suit is the harshest of
remedies. The law favors and justice requires that an action be maintained
wherever possible so that an aggrieved party has his day in court to which
he is entitled. Abandonment proceedings in accordance with Article 561
should be given a liberal interpretation and any action or step taken by
plaintiff to move his case toward judgment should be considered. 707
So.2d 1350, 97-1079 (La.App. 5 Cir. 2/25/98), State v. Holleman,
(La.App. 5 Cir. 1998); 665 So.2d 30, 95 0607 (La.App. 1 Cir. 11/9/95),
Jones v. Phelps, (La.App. 1 Cir. 1995)[sic]; and cases cited therein.

The first exception to the rule of abandonment contemplates events
which make it impossible for a litigant to act on his own behalf, such as
service in the armed forces or confinement to a mental institution. Haisty
v. State, Department of Transportation and Development, 25,670, p.
4 (La.App. 2d Cir. 3/30/94), 634 So.2d 919, 922; Courtney v.
Henderson, 602 So.2d 95, 97 (La.App. 4th Cir. 1992).

Circumstances beyond the control of a party, however, have not
included inaction by plaintiff’s attorney. The fact that an attorney refused
or neglected to act for five years has not been found to constitute such
circumstances. In Brown v. Edwards, 435 So.2d 1073, 1075-76 (La.App.
1st Cir.1983) (quoting Pounds v. Yancy), the court concluded that
circumstances beyond the control of a party contemplate events which
make it impossible for the litigant to act in his own behalf, such as service
in the armed forces or confinement to a mental institution. Likewise, if the
plaintiff can not rectify the situation, he should not be charged with the
consequences. 602 So.2d 95, Courtney v. Henderson, (La.App. 4 Cir.
1992).

In Aucoin v. Baton Rouge Jaycees, Inc., 491 So.2d 422,
(La.App. 1 Cir. 1986), the court was faced with statements in plaintiff’s
appellate brief regarding his mental and emotional state, characterized by

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disabling depression, but held that the statements do not constitute
evidence, stating ... "we are not persuaded by plaintiff-appellant's
argument that failure to prosecute the suit for over five years is excused
by the jurisprudential exception to dismissal for circumstances beyond the
plaintiff’s control."

There is no evidence in the record that any formal discovery was
taken and it is obvious from a review of the record that more than three
(3) years lapsed from the time that the ANSWER was filed until the time
that the RULE TO SHOW CAUSE WHY SUIT SHOULD NOT BE
DISMISSED ON GROUNDS OF ABANDONMENT was filed.

There is ample evidence that the Plaintiff never exhibited an intent
to abandon her claim. It is unfortunate that Plaintiff was referred to
Bobby Pitre, an attorney who did absolutely nothing to move this case to
conclusion, he didn't even enroll as her counsel, didn't respond to a
request for a settlement proposal, and ignored his client at his door.
Inaction by the attorney however is a not a reason to maintain a suit. The
main issue is whether a plaintiff who 1) suffers from depression which
required her hospitalization on at least 2 occasions, 2) has limited
education, 3) is advanced in age, 4) takes numerous types of medications,
and 5) has other physical problems, was prevented from pursuing her
claim. In other words, was she unable to prevent the abandonment caused
by the inaction of her attorney, or stated another way, was she unable to
act for reasons basically out of her control or stated another way, was it
impossible for her to act.

I have carefully reviewed the evidence presented in this case and am not
satisfied that the totality of her conditions rise to the requisite level. It was
not impossible for her to act. She did in fact go to Pitre's office, left notes,
called his office, called his home (father's home), and went by there. It
also appears that she spoke to Pitre initially and possibly on a couple of
occasions thereafter, but certainly she spoke with Pitre on one occasion
when he admittedly ignored Plaintiff as she stood at the doorway of his
office/home. She was not prevented from contacting another attorney
who could have acted more diligently on her behalf. In other words,
Plaintiff could have rectified the situation. She was never ruled an
interdict nor did her doctor believe that her condition ever got to that
point.

Judgment will be rendered GRANTING the Motion to Dismiss
under CCP Art. 561.
Accordingly, for the reasons stated above, the judgment of the trial court is

affirmed. Inasmuch as Plaintiff/Appellant, Ollie Mae Pecot, is appearing before this

court as a pauper, we pretermit the assessment of costs.

AFFIRMED.

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NUMBER 03-1102

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

OLLIE MAE PECOT

Plaintiff - Appellant

Versus

CALCASIEU-CAMERON HOSPITAL SERVICE DISTRICT d/b/a
WEST CALCASIEU CAMERON HOSPITAL and ABC INSURANCE COMPANY

Defendants - Appellees

On appeal from the Fourteenth Judicial District Court [No. 98-6318], for the
Parish of Calcasieu, State of Louisiana; the Honorable D. Kent Savoie, District Judge,
presiding.

Woodard, J., dissenting.

I respectfully dissent from the majority’s opinion.
As the majority recognizes, jurisprudence has carved out two exceptions to the
abandonment statute. The exception implicated in the instant case is that when
circumstances beyond a litigant’s control are the cause of her failure to prosecute, she
should not suffer the harsh remedy of dismissal. However, because this is a
jurisprudential exception, courts have used it sparingly. In doing so, the courts require
a stringent showing that circumstances were sufficiently serious and beyond the
litigant’s control that she was unable to act on her own behalf in prosecuting the suit.
Other circuits have used two specific examples to suggest the type of
circumstances which would satisfy such a stringent showing; namely, when a litigant
is in the armed forces or confined to a mental institution. Notwithstanding, while
courts have used these two instances to demonstrate the level of extremity that is
necessary before granting the litigant relief, they are examples, only. I do not believe
that these two situations comprise an exclusive list of instances which satisfy the

definition of “circumstances beyond a litigant’s control.” Rather, I believe we must
make the determination on a case-by-case basis.
It is obvious in the instant case that Ms. Pecot never intended to abandon her
suit. In fact, she was dogged in her attempts to ensure its progress and, as far as she
knew, she did everything within her control to further it. I find that her circumstances
and attempts justify an exception to abandonment, particularly in light of her
exhaustive efforts to contact her attorney, her belief that she could not change
attorneys, as well as her prolonged mental instabilities for which her psychiatrist
stated rendered her incapable of (rationally) handling her affairs.

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