Laureen Olson v. Louisiana Medical Mutual Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1182

LAUREEN OLSON

VERSUS

LOUISIANA MEDICAL MUTUAL INSURANCE CO., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2013-1850
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

REVERSED; RENDERED; AND REMANDED.

J. Lomax Jordan, Jr.
Victor R. A. Ashy
1817 West University Avenue
Lafayette, LA 70506
(337) 233-9984
COUNSEL FOR PLAINTIFF/APPELLANT:
Laureen Olson

Michael W. Adley
Judice and Adley, APLC
P. O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANTS/APPELLEES:
Dr. Paul M. Toce, Jr.
Dr. Paul M. Toce, Jr., APMC

James D. “Buddy” Caldwell,
Attorney General
J. Elliot Baker
Irving H. Koch
Special Assistant Attorney General
321 N. Vermont Street, Suite 208
Covington, LA 70433
(985) 867-9068
COUNSEL FOR APPELLEE:
State of Louisiana

Thomas S. Schneidau
Milling, Benson, Woodward L.LP.
827 West 22nd Avenue
Covington, LA 70433
(985) 871-3924
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Medical Mutual Insurance Company

PETERS, J.

The plaintiff, Laureen Olson, appeals from a judgment of the trial court

granting an exception of lis pendens in favor of the defendants, Dr. Paul M. Toce,

Jr.; the doctor’s medical corporation, Dr. Paul M. Toce, Jr., A Professional Medical

Corporation; and their liability insurer, Louisiana Medical Mutual Insurance

Company (Louisiana Medical).1 For the following reasons, we reverse the trial

court judgment, render judgment rejecting the exception, and remand the matter to

the trial court for further proceedings.

DISCUSSION OF THE RECORD

The April 9, 2013 petition2 filed by Ms. Olson against the three defendants

asserts various causes of action arising from Dr. Toce’s long-time treatment of Ms.

Olson.3 In fact, some of the allegations form the basis for a January 2013 medical

review panel opinion which found that Dr. Toce breached the applicable standard

of care in numerous instances during his treatment of Ms. Olson. In addition to

these medical malpractice claims, Ms. Olson asserted negligence claims against Dr.

Toce’s medical corporation based on the corporation’s failure to properly train and

supervise its employees, including the doctor himself; respondeat superior liability

of the corporation for the actions of its employees; and intentional torts based on

1
At a point later in the litigation, the State of Louisiana filed an intervention based on a
claim by Ms. Olson in her pleadings that the Louisiana Medical Malpractice Act is
unconstitutional, but that claim is not before us, and the State of Louisiana is not a party at
interest in this appeal.
2
The petition was entitled, “Petition for Damages Resulting from Medical Malpractice
and Other Acts of Negligence Not Covered by the Louisiana Medical Malpractice Act, and From
Intentional Acts or Other Acts[.]”
3
The petition alleges that Ms. Olson suffers from bipolar disorder, depression, anxiety,
and other illnesses and that she has issues of abandonment, severe self-esteem problems, and has
experienced suicidal tendencies.

Dr. Toce’s personal relationship with her, including sexual battery. Ms. Olson

sought to recover both general and special damages from the three defendants.

The three defendants responded to Ms. Olson’s petition by filing a number

of exceptions, including the peremptory exception of lis pendens. The basis for the

defendants’ lis pendens exception was the existence of an earlier suit filed by Ms.

Olson against the same defendants, bearing a different docket number and pending

in another division of the Fifteenth Judicial District Court.

After a May 28, 2013 hearing on the exception, the trial court initially

informed the litigants that the two suits would be consolidated. However, when

presented by the defendants with a judgment to that effect, the trial court struck

through the judgment4 and wrote “Denied. New Judgment to be presented.” The

trial court signed the judgment as modified on June 24, 2013.

The next day, Ms. Olson filed a written objection to the modified judgment,

and in doing so, referred to a telephone conference between counsel for both sides

of the litigation and the trial court, which she claims occurred on the same day as

the trial court’s action in executing the modified judgment. The pleading asserts

that the trial court instigated the telephone conference and informed both sides in

the litigation that the trial judge of the other division did not want the matters

consolidated, and, as a consequence, the trial court was rescinding its order of

consolidation, sustaining the exception of lis pendens, and dismissing the April 9,

2013 suit. According to the pleading, Ms. Olson’s counsel objected to the lack of

notice of the telephone conference, requested that a court reporter be summoned to

4
The proposed judgment stated that the exception of lis pendens would be granted, but
only to the extent of transferring the litigation to be consolidated with other pending suit, and
would be denied in all other respects. The judgment further provided that the other exceptions
filed were deferred to the other division of the court for consideration.

2

make a record of the proceedings, and objected to the grant of the exception. The

trial court denied both objections and the request that the conference be recorded.

On July 18, 2013, the trial court executed a written judgment granting the

exception of lis pendens and dismissing Ms. Olson’s claims against the defendants.

Following a request by Ms. Olson, the trial court issued written reasons on July 26,

2013. On August 2, 2013, Ms. Olson filed notice of her intent to seek a writ of

review and/or a supervisory writ to seek review of the trial court judgment by this

court. On September 23, 2013, we denied the writ, finding that the trial court’s

judgment was appealable and that Ms. Olson had an adequate remedy through

appeal. See Olson v. La. Med. Mut. Ins. Co., 13-985 (La.App. 3 Cir. 9/23/13)

(unpublished writ). Thereafter, Ms. Olson perfected this appeal, asserting in her

one assignment of error that the trial court erred in sustaining the exception of lis

pendens and in dismissing her suit.

OPINION

With regard to the exception of lis pendens, La.Code Civ.P. art. 531

provides:

When two or more suits are pending in a Louisiana court or
courts on the same transaction or occurrence, between the same
parties in the same capacities, the defendant may have all but the first
suit dismissed by excepting thereto as provided in Article 925. When
the defendant does not so except, the plaintiff may continue the
prosecution of any of the suits, but the first final judgment rendered
shall be conclusive of all.

Additionally, La.Code Civ.P. art. 930 states, “On the trial of the declinatory

exception, evidence may be introduced to support or controvert any of the

objections pleaded, when the grounds thereof do not appear from the petition, the

citation, or return thereon.” The evidentiary burden associated with such an

3

exception was explained in Lexington Insurance Co. v. Tasch, Inc., 12-339, pp. 8-9

(La.App. 5 Cir. 11/27/12), 105 So.3d 950, 955, wherein that court stated:

When a party raises an exception or motion that must be proven,
it is that party’s burden to present evidence establishing the claims
made therein. See La. C.C.P. arts. 930, 931, 963. The exceptions to
that rule are the peremptory exception of no cause of action and the
motion for summary judgment.

An exception of no cause of action must be tried on the face of
the petition alone. La. C.C.P. art. 931; Ramey v. DeCaire, 2003-1299,
p. 7 (La.3/19/04), 869 So.2d 114, 118.

A motion for summary judgment is decided on “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any.” La. C.C.P. art. 966(B). Summary
judgment may be granted only if the documents in the record show
that there is no genuine issue as to material fact, and that mover is
entitled to judgment as a matter of law. Id.

Other defenses, however, whether raised by exception or
motion or in other pleadings, must be proven by evidence introduced
at a hearing, where the trial court performs its function of weighing
evidence, making credibility determinations, and making factual
findings. Scheuermann v. Cadillac of Metairie, Inc., 11-1149, pp. 5-7
(La.App. 5 Cir. 5/31/12), 97 So.3d 423, 427.

Evidence not properly and officially offered and introduced
cannot be considered, even if it is physically placed in the record.
Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08),
983 So.2d 84, 88. Documents attached to memoranda do not
constitute evidence and cannot be considered as such on appeal. Id.
Appellate courts are courts of record and may not review evidence
that is not in the appellate record, or receive new evidence. Id.; La.
C.C.P. art. 2164.

Without addressing the merits of Ms. Olson’s appeal, we note that the

defendants introduced no evidence at the May 28, 2013 hearing on their exceptions.

While the twenty-one page petition filed by Ms. Olson does refer to the previously

filed suit, it references it as having been filed based on claims not covered by the

4

Louisiana Medical Malpractice Act. 5 Thus, the grounds for the defendants’ lis

pendens exception does not appear on the face of the petition. La.Code Civ.P. art.

930. Because the grounds for the objection are not obvious from a review of Ms.

Olson’s petition, the defendants bore the burden of proving, through the

submission of testamentary or documentary evidence, why the exception should be

granted. Based on a lack of such evidence, we are left with nothing on which to

base a finding as to the correctness of the trial court’s judgment. Accordingly, the

trial court judgment granting the exception of lis pendens and dismissing Ms.

Olson’s claims is reversed, and we render judgment denying the exception of lis

pendens. The matter is remanded to the trial court for further proceedings.

DISPOSITION

We reverse the trial court judgment granting the declinatory exception of lis

pendens and dismissing the claims of Laureen Olson against Dr. Paul M. Toce, Jr.,

Dr. Paul M. Toce, Jr., A Professional Medical Corporation, and Louisiana Medical

Mutual Insurance Company; render judgment denying the exception; and remand

the matter to the trial court for further proceedings. We assess all costs of this

appeal to the defendants, Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., A

Professional Medical Corporation, and Louisiana Medical Mutual Insurance

Company.

REVERSED; RENDERED; AND REMANDED.

5
Ms. Olson references a second suit in her petition, which she states was filed by Dr.
Toce for the purpose of conducting discovery and extending the deadline for completion of the
medical review panel deliberations.

5