Camille Landry v. Pediatric Services of America, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-658

CAMILLE LANDRY, ET AL.

VERSUS

PEDIATRIC SERVICES OF AMERICA,

INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20132251
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Billy H. Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED.

John Layne Hammons
Cornell R. Flournoy
William W. Murray, Jr.
R. Clayton Christian
Nelson & Hammons
315 S. College Road, Suite 146
Lafayette, LA 70503
(337) 534-0515
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Camille Landry
Camille Landry obo Tai Landry
Ryan Landry
Ryan Landry obo Tai Landry

John Michael Veron
Veron, Bice, Palermo & Wilson
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR DEFENDANTS/APPELLEES:
Pediatric Services of America, Inc.

Ashley Miller Scott
Matthew C. Juneau
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
201 St. Charles Ave., Suite 3600
New Orleans, LA 70170-3600
(504) 566-5200
COUNSEL FOR DEFENDANTS/APPELLEES:
Pediatric Services of America, Inc.

EZELL, Judge.

Camille and Ryan Landry, individually and on behalf of their minor child

Tai Landry, appeal the decision of the trial court below denying their petition to

annul a March 4, 2011 judgment in favor of Pediatric Services of America, Inc.

(hereinafter PSA). For the following reasons, we hereby affirm the decision of the

trial court.

The underlying basis of this matter is a prior medical malpractice lawsuit

against PSA. In January of 2011, a roughly six-week jury trial was held in that

case. At the conclusion of that trial, the jury found no fault on the part of PSA,

allocating fault instead to a non-party physician at 100%. Judgment was signed in

that matter on March 4, 2011.

Nearly two years after the judgment was signed, and just after it was upheld

on appeal, one of the jurors in the matter, Kim Gisclaire, came forward with an

allegation that she had an ex parte communication with original trial judge, Judge

Edward Broussard, indicating that during the course of the trial she had seen her

name on medical records entered into evidence. She alleged that she realized at

some point she had treated the Landrys’ daughter and that she had become

“uncomfortable” being on the jury in the medical malpractice suit, though she has

never to this day asserted she felt she would be unable to be an impartial juror to

any party. She further claimed that she was told by Judge Broussard not to tell any

jurors or attorneys of their conversation and to remain on the jury. Judge

Broussard unequivocally denied these claims.

Based on Mrs. Gisclaire’s claims, the Landrys then filed the current matter

before the court, a petition to annul the March 4, 2011 judgment based on what

they allege were the fraudulent or ill practices of Judge Broussard. The trial court

below held a hearing on the petition to annul. At the end of the trial, the trial court

found Mrs. Gisclaire to lack credibility and found no ex parte meeting occurred.

The trial court further found that, even if any such meeting had in fact happened,

nothing indicated that it rose to the level of fraud or any ill practice sufficient to

nullify the judgment. From that decision, the Landrys appeal.

On appeal, the Landrys assert three assignments of error. They claim the

trial court erred in concluding there was no ex parte meeting between Mrs.

Gisclaire and Judge Broussard and in finding no ill practices on Judge Broussard’s

part. They further allege that Mrs. Gisclaire’s status as juror as a treating nurse and

potential eyewitness inherently made the March 4, 2011 judgment unconscionable.

Finally, they claim the trial court erred in not holding that Casey Blanchette’s

alleged knowledge of Mrs. Gisclaire’s treating nurse status should be immediately

imputed to Judge Broussard, due to his status as a law clerk and officer of the court.

The second and third assignments of error are alleged for the first time on

appeal. “The well-settled jurisprudence of this court establishes that as a general

matter, appellate courts will not consider issues raised for the first time, which are

not pleaded in the court below and which the district court has not addressed.”

Council of City of New Orleans v. Washington, 09-1067, p. 3 (La. 5/29/09), 9

So.3d 854, 856. Accordingly, we will only address the Landrys’ first assignment

of error.

“A final judgment obtained by fraud or ill practices may be annulled.”

La.Code Civ.P. art. 2004(A). As noted by this court in Mosing v. Miller, 20-632,

pp. 4-5 (La. App. 3 Cir. 12/8/21), ___ So.3d ___, ___ (alteration in original).

Louisiana jurisprudence has established a two-part test to
determine whether a judgment should be annulled pursuant to Article
2004: “(1) when the circumstances under which the judgment was

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rendered show the deprivation of legal rights of the litigant who seeks
relief, and (2) when the enforcement of the judgment would be
unconscionable and inequitable.” Kem Search, Inc. v. Sheffield, 434
So.2d 1067, 1070 (La.1983).

[T]he article is not limited to cases of actual fraud or
intentional wrongdoing, but is sufficiently broad to
encompass all situations wherein a judgment is rendered
through some improper practice or procedure which
operates, even innocently, to deprive the party cast in
judgment of some legal right, and where the enforcement
of the judgment would be unconscionable and inequitable.

Id.

When conduct “prevents an opposing party from having an
opportunity to appear and assert a defense,” that conduct has caused a
deprivation of legal rights. Id. A deprivation of a legal right also
occurs when “the litigant appears in court but is prevented from
participating in a fair and impartial proceeding due to ill practices of
another party.” Belle Pass Terminal, Inc. v. Jolin, Inc., 01-149, p. 6
(La. 10/16/01), 800 So.2d 762, 767. However, matters irrelevant to the
basis of a judgment will not result in its annulment. Ward v.
Pennington, 523 So.2d 1286 (La.1988).

The decision to annul a judgment pursuant to La.Code Civ.P.
art 2004 lies within the discretion of the trial court. Wright v. La.
Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058. The decision
regarding a petition to annul is reviewed by the courts of appeal to
determine not whether the trial court’s factual conclusions were right,
but whether they were reasonable. Belle Pass Terminal, 800 So.2d
762.

With regard to the standard of appellate review of a trial court’s judgment in

a petition to annul, the supreme court, in Power Marketing Direct, Inc. v. Foster,

05-2023, p. 11 (La. 9/6/06), 938 So.2d 662, 670 (emphasis added), stated that “trial

courts are permitted discretion in deciding when a judgment should be annulled

because of fraud or ill practices, to which discretion reviewing courts will defer.”

We first note that in its factual findings, the trial court explicitly found the

testimony of Judge Broussard and Bailiff Wilson George to be more credible than

that of Mrs. Gisclaire and Mr. Blanchette, who had been Judge Broussard’s law

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clerk at the time. These factual findings are subject to the long-standing manifest

error/clearly wrong standard of review and cannot be reversed absent a finding that

no factual basis exists for the trial court’s finding, and that the record establishes

that the trial court’s finding is clearly wrong or manifestly erroneous. Stobart v.

State, DOTD, 617 So.2d 880 (La.1993). Where there is conflict in testimony,

reasonable evaluations of credibility and reasonable inferences of fact made by the

trial court are not to be disturbed. Olivier v. Olivier, 11-579 (La.App. 1 Cir.

11/9/11), 81 So.3d 22. Additionally, where the fact finder’s conclusions are based

on determinations regarding the credibility of witnesses, the manifest error

standard demands great deference to the trier of fact because only the trier of fact

can be aware of the variations in demeanor and tone of voice that bear so heavily

on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549

So.2d 840 (La.1989).

The alleged conversation with Mrs. Gisclaire concerning the medical records

was unequivocally denied by Judge Broussard. This was supported by the

testimony of Mr. George, who stated he never took any juror to meet Judge

Broussard. Contrasting that were the disparate testimonies of Mrs. Gisclaire and

Mr. Blanchette. Whereas Mrs. Gisclaire recounted the alleged meeting as being

“simple,” “innocent,” and as “no big deal,” Mr. Blanchette testified that she came

to him “visibly shaken” and in tears.1 These differing accounts were noted by the

trial court in its thorough written reasons.

Moreover, the trial court stated in its reasons for judgment that it found Mrs.

Gisclaire’s testimony to be “replete with mis-matched descriptions, information,

1
Mr. Blanchette testified that Mrs. Gisclaire told him she wanted to speak to Judge
Broussard and that he took her to him, but that he physically distanced himself from the two and
could not hear the substance of any alleged conversation.

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and actions, which just did not ‘add up’ to the [trial] court.” The trial court was

concerned with the nearly two-year time period between the trial and Mrs.

Gisclaire coming forward with her accusations, especially when she said she had

been so uncomfortable with the result of the trial. Additionally, Mrs. Gisclaire was

subpoenaed by defense counsel for deposition. While she appeared for that

deposition, she refused to be sworn, gave counsel a “medical excuse”, authored not

by any doctor but by herself, and promised to follow-up with a doctor’s

confirmation; though she never did. The trial court felt these actions further

undermined Mrs. Gisclaire’s credibility.

After evaluating the conflicting testimony and credibility of the witnesses,

and considering the other corroborating evidence introduced at the hearing, the

trial court determined no ex parte meeting occurred. Allowing the proper

deference owed to trial courts for determinations on credibility, after reviewing the

record before us, we can find no error in the trial court’s findings on the credibility

of the witnesses. Therefore, we find the trial court’s determination that no ex parte

meeting occurred regarding medical records to be reasonable and supported by the

record.

Moreover, the trial court found that the meeting, should it have actually

occurred at all, would not arise to the level of an ill practice that would deprive the

Landrys of any right. The record shows this to be a reasonable conclusion, even

had the alleged meeting occurred.

The record shows that the Landrys were plainly aware during voir dire that

Mrs. Gisclaire worked at the hospital where their daughter was treated, at the time

she was treated, and with the defendant doctors in this matter. Her potential to

have been an eyewitness in this matter was clear to them at the time the jury was

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selected. The Landrys had the medical records whose introduction caused the

controversy at issue and could have easily viewed them to see if Mrs. Gisclaire

provided nursing care to their daughter directly. They did not. Nor did they object

in any way to her inclusion on the jury, despite the above knowledge that she could

have treated their daughter and had directly worked with the party doctors at the

treating hospital.

Furthermore, Mrs. Gisclaire herself testified that the alleged ex parte

meeting with Judge Broussard regarding the medical records was “very quick,”

“not a big deal,” and was merely a “brief conversation. It was very simple. It was

very innocent.” She has never alleged that Judge Broussard commented on any

facts before the jury or any points of law relevant to the case. She has never

claimed Judge Broussard made any comments that exhibited any bias whatsoever

or that anything he was alleged to have said influenced her decision-making. Mrs.

Gisclaire never gave any indication that she was not, nor could not have been, an

impartial juror, either at the trial or at any time afterward. In fact, the record

indicates that, as a juror, Mrs. Gisclaire voted for the Landrys against PSA in this

matter, meaning that any substitution of her as a juror would have been of either no

consequence to the outcome at trial, or would have given PSA an even more

decisive victory. 2 Again, matters irrelevant to the basis of a judgment will not

2
While the jury was not polled at the time of the trial, during an April 6, 2015 hearing on
the matter, counsel for the Landrys clearly states that “[Mrs. Gisclaire] voted for us with regard
to PSA.” The well-settled jurisprudence establishes that an admission by a party constitutes a
judicial confession and is full proof against the party making it. C.T. Traina, Inc. v. Sunshine
Plaza, Inc., 03-1003 (La. 12/3/03), 861 So.2d 156. “[A] declaration made by a party’s attorney
or mandatory has the same effect as one made by the party himself.” La.Civ. Code art. 1853,
Comment (b).
While La.Code Evidence art. 606(B) prevents jurors from commenting on “any matter or
statement occurring during the course of the jury’s deliberations or to the effect of anything upon
his or any other juror’s mind or emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in connection therewith,” jurors are
routinely polled at the end of trials. We find the statement referring to Mrs. Gisclaire’s mere

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result in its annulment. Ward v. Pennington, 523 So.2d 1286 (La.1988). Simply

put, had the alleged ex parte conversation actually occurred, the record contains

nothing to show that it rose to the level of ill practice, affected the fundamental

fairness of the trial, or deprived the Landrys of any rights.

The Landrys have failed to meet their burden of showing they were

prevented from participating in a fair and impartial proceeding due to any fraud or

ill practices of another party. We can find no abuse of the trial court’s discretion in

denying the petition to annul.

For the above reasons, the decision of the trial court is hereby affirmed.

Costs of this appeal are hereby assessed against the Landrys.

AFFIRMED.

vote, not as to any of her or any other juror’s deliberative processes, to be no different than if the
jury had been polled in this matter and to be properly before this court.

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