Allen Dehart v. Bruce A. Jones, M. D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-764

ALLEN DEHART, ET AL.

VERSUS

BRUCE A. JONES, M.D., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2012-3593, DIVISION “I”
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and
John E. Conery, Judges.

VACATED; MOTION TO STRIKE GRANTED;
REMANDED.

Michael Wayne Adley
Marc W. Judice
Judice and Adley
P. O. Drawer 51769
Lafayette, LA 70505-1769
Telephone: (337) 235-2405
COUNSEL FOR:
Defendant/Appellee - Todd C. Ackal, M.D.

Alan K. Breaud
Breaud & Meyers
P. O. Drawer 3448
Lafayette, LA 70502
Telephone: (337) 266-2200
COUNSEL FOR:
Defendant/Appellee - Bruce A. Jones, M.D.

James Calvin Young
Law Offices of Sheryl Story
S. Micholle Mordock
One Galleria Boulevard - Suite 1500
Metairie, LA 70001-7551
Telephone: (504) 841-5137
COUNSEL FOR:
Defendant/Appellee - Christopher Dunn

Samuel David Abraham
5040 Ambassador Caffery Parkway
Lafayette, LA 70508
Telephone: (337) 234-4524
COUNSEL FOR:
Plaintiffs/Appellants - Allen DeHart, Adrienne DeHart, Ashley DeHart,
and Anissa DeHart

Nicholas Gachassin, III
Brandon M. Rhodes
Julie Savoy
Gachassin Law Firm
P. O. Box 80369
Lafayette, LA 70598-0369
Telephone: (337) 235-4576
COUNSEL FOR:
Defendants/Appellees - Lafayette General Medical Center and Amy
Falconer

THIBODEAUX, Chief Judge.

Plaintiffs Allen, Adrienne, Ashley, and Anissa DeHart appeal from the

judgment of the trial court granting Lafayette General Medical Center’s (LGMC)

and Amy Falconer’s motions for partial summary judgment, which dismissed both

defendants in the underlying civil action. Because Plaintiffs were not served with

notice of the hearing date thirty days prior to the hearing as mandated by La.Code

Civ.P. art. 966(C)(1)(b), we vacate the judgment of the trial court granting LGMC’s

and Ms. Falconer’s motions for partial summary judgment. In light of the procedural

defect, we further grant Plaintiffs’ motion to strike, without prejudice, both partial

summary judgment motions and remand this matter to the trial court.

I.

ISSUES

Plaintiffs raise the following issues for review:

(1) whether Louisiana Code of Civil Procedure, Art.
966 C. (1) (b) precluded the trial court from hearing
Motions for Partial Summary Judgment on June
18th, 2018, or continuing the hearing until June 27th,
2018 giving 9 days actual notice of the hearing;

(2) whether the trial court erred in not allowing into
evidence filings by Plaintiffs/Appellants in support
of the Oppositions to the Motions for Summary
Judgments; and

(3) whether the trial court erred in granting Motions for
Summary Judgment when genuine issues of
material fact existed.

II.

FACTS AND PROCEDURAL HISTORY

This medical malpractice action arises out of surgical complications

during a robotically-assisted heart valve repair surgery performed on Arlene DeHart

by Dr. Bruce Jones at LGMC. Ms. Falconer acted as perfusionist. During the

procedure, Mrs. DeHart bled profusely from her femoral artery. Plaintiffs, Mrs.

DeHart’s husband and children, alleged this excessive bleeding and inadequate

perfusion flow led to the eventual failure of Mrs. DeHart’s kidneys, which

contributed to her death within a month of surgery on October 27, 2008. After timely

submitting the matter to a medical review panel, Plaintiffs filed suit on June 26,

2012, against LGMC and Ms. Falconer, among other defendants.

As to LGMC and Ms. Falconer, Plaintiffs alleged that the surgical staff

breached the applicable standard of care in failing to communicate to Dr. Jones the

source, extent, significance, and magnitude of the bleed and its adverse impact on

Mrs. DeHart’s hemodynamics. Plaintiffs further alleged that LGMC was negligent

in its advertising and marketing of the robotic surgery and in obtaining Mrs.

DeHart’s informed consent for the procedure.

On May 15, 2018, LGMC and Ms. Falconer filed their motion for

partial summary judgment on the ground that Plaintiffs could not carry their burden

of proof as to breach or causation in their claims regarding the bleeding issue.

LGMC and Ms. Falconer then filed a second motion for partial summary judgment

on May 23, 2018, arguing that Plaintiffs could not carry their burden of proof as to

duty or causation relating to their negligent advertising/informed consent claims.

Both motions were set for hearing on June 18, 2018. The Lafayette Parish Sheriff’s

Office served Plaintiffs with notice of the June 18, 2018 hearing date on May 29,

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2018. Thereafter on June 1, 2018, Plaintiffs filed a motion to strike both motions

because they were not served with notice of the court date thirty days before the

hearing as mandated by La.Code Civ.P. art. 966(C)(1)(b). On June 18, 2018, the

trial court denied the motion to strike and continued the hearing on the partial

summary judgment motions to June 27, 2018. In response, Plaintiffs filed another

motion to strike, again for lack of timely notice of the hearing date. The trial court

denied the motion to strike and ultimately granted LGMC’s and Ms. Falconer’s

motions, dismissing them “entirely from this lawsuit with prejudice on summary

judgment.”

III.

STANDARD OF REVIEW

An appellate court reviews a motion for summary judgment de novo,

using the identical criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d

880. Therefore, just like the trial court, we are tasked with determining whether “the

motion, memorandum, and supporting documents show that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of

law.” La.Code Civ.P. art. 966(A)(3).

Moreover, “[t]o uphold a summary judgment on appeal, the record must

reflect the mover secured the judgment in accordance with the procedure mandated

by Louisiana Code of Civil Procedure article 966.” Acadian Props. Northshore,

L.L.C. v. Fitzmorris, 17-424, p. 9 (La.App. 1 Cir. 11/1/17), 234 So.3d 927, 934.

Accordingly, we must also ensure that all the procedural requirements have been

met. Magnon v. Miller, 06-321 (La.App. 3 Cir. 9/27/06), 939 So.2d 658.

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IV.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 966 sets forth the substantive

and procedural requirements for properly attaining summary judgment. Relevant

herein, La.Code Civ.P. art. 966(C) provides:

C. (1) Unless otherwise agreed to by all of the
parties and the court:

(a) A contradictory hearing on the motion for
summary judgment shall be set not less than thirty days
after the filing and not less than thirty days prior to the trial
date.

(b) Notice of the hearing date shall be served on all
parties in accordance with Article 1313(C) or 1314 not less
than thirty days prior to the hearing.

Added by 2015 La. Acts No. 422, § 1, this provision requires that,

unless the parties and court agree otherwise: (1) a motion for summary judgment

shall be set for hearing at least thirty days after filing; (2) notice of the date of the

hearing shall be served in accordance with La.Code Civ.P. arts. 1313(C) (by

certified mail or commercial courier) or 1314 (by the sheriff) at least thirty days

before the hearing; and (3) the hearing on the motion shall be set at least thirty days

prior to the trial date. Through the use of the term “shall,” the legislature rendered

all of these temporal prerequisites mandatory, except upon the agreement of the

court and all the parties. La.R.S. 1:3 (“The word ‘shall’ is mandatory[.]”).

“Moreover, procedural due process requires an opportunity to be heard, in addition

to notice of the pendency of an action, and in conjunction therewith, adequate notice

of the hearing is fundamental.” Lassere v. State, Dep’t of Health & Hosps., Office

of Pub. Health, 00-306, p. 4 (La.App. 1 Cir. 3/28/01), 808 So.2d 513, 516.

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Given the most recent legislative pronouncement and the fundamental

principles of procedural due process, it logically follows that “[t]he district court

cannot unilaterally dispense with the pre-hearing notice required by Article 966C.

Absent a waiver, if the required notice is not provided, the district court is

procedurally barred from acting on the motion for summary judgment.” Acadian

Props. Northshore, L.L.C., 234 So.3d at 934.

In the present case, neither the parties nor the court dispute that the

notices of the June 18, 2018 hearing for both motions were not served in accordance

with the thirty-day prerequisite set forth in La.Code Civ.P. art. 966(C)(1)(b). As the

record shows, Plaintiffs were served with the notices on May 29, 2018, only twenty

days prior to the June 18, 2018 hearing. Plaintiffs received notice of the reset hearing

date of June 27, 2018, during the June 18, 2018 hearing, just nine days before the

June 27, 2018 hearing.

Although it continued the June 18, 2018 hearing in an effort to comply

with the notice requirements, the trial court could not dispense with the mandatory

pre-hearing notice without the consent of all the parties.1 Plaintiffs’ motions to strike

and their objections of record to resetting the hearing less than thirty days prior

thereto are evidence of their lack of consent. In the absence of Plaintiffs’ waiver of

notice or consent to the continuance, the trial court was, therefore, procedurally

barred from acting on the motions.

1
The trial court considered non-compliance with the thirty-day rule of La.Code Civ.P. art.
966(C)(1)(b) as “good cause shown” to continue the hearing. However, La.Code Civ.P. art.
966(C)(2) presupposes, in our view, prior and valid compliance with La.Code Civ.P. art.
966(C)(1)(b). Here, that was not done. The application of “good cause shown” would render
nugatory the mandatory compliance with the thirty-day service requirement and is too susceptible
of arbitrary application by different trial courts.

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Because both motions for partial summary judgment were granted

without the thirty-day notice required by La.Code Civ.P. art. 966(C)(1)(b), we vacate

the judgment of the trial court granting the motions. Moreover, because both

motions were procedurally flawed in that Plaintiffs were not served with notice of

the hearing date thirty days prior thereto, we, in the interest of justice, grant

Plaintiffs’ motion to strike both motions from the record without prejudice to any of

the parties. Uniform Rules—Courts of Appeal, Rule 1-3; La.Code Civ.P. art. 2164.

In light of this holding, all remaining assignments of error are pretermitted.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is vacated.

The motion to strike filed on behalf of Plaintiffs/Appellants is hereby granted, and

this matter is remanded to the trial court for further proceedings consistent with this

opinion.

Costs of this appeal are assessed to the Defendants/Appellees.

VACATED; MOTION TO STRIKE GRANTED; REMANDED.

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