Nickie Lejeune v. Kayla Fontenot, Md

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-316

NICKIE LEJEUNE

VERSUS

KAYLA FONTENOT, MD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 202110755
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Pierre F. Gremillion
3500 N Hullen St.
Metairie, LA 70002
(504) 495-3165
COUNSEL FOR PLAINTIFF-APPELLANT:
Nickie Lejeune

J. Ryan Pierret
Judice & Adley
P.O. Drawer 51769
Lafayette, LA 70505
(337) 235-2405
COUNSEL FOR DEFENDANT-APPELLEE:
Kayla Fontenot, MD

PICKETT, Chief Judge.

Nickie Lejeune appeals the judgment of the trial court sustaining the

peremptory exception of res judicata filed by Dr. Kayla Fontenot.

FACTS

Ms. Lejeune alleges that Dr. Fontenot committed medical malpractice during

a hysterectomy performed on June 24, 2019. Her petition for damages, filed on

October 8, 2021, in Acadia Parish, alleges that Ms. Lejeune became aware that her

colon had been perforated during surgery when she presented to the hospital with

fecal material emanating from her incision site. This was not the first medical

malpractice claim filed by Ms. Lejeune arising from this surgery.

Ms. Lejeune initially filed a claim on July 10, 2020, pursuant to the

Louisiana Medical Malpractice Act seeking the empaneling of a medical review

panel pursuant to La.R.S. 40:1231.8. Dr. Fontenot subsequently filed a motion to

open a case in St. Landry Parish for the purpose of discovery in the medical

malpractice claim, which motion was granted.

Dr. Fontenot filed a peremptory exception of prescription in the St. Landry

case, alleging Ms. Lejeune’s request for a medical review panel was filed more

than a year after Ms. Lejeune discovered the act of malpractice. Following a

hearing, the St. Landry district court sustained the exception of prescription in a

judgment dated September 9, 2021. Ms. Lejeune did not appeal that judgment.

On November 16, 2021, Ms. Lejeune filed an action for nullity of the

September 9, 2021 judgment, alleging fraud or ill practices by Dr. Fontenot’s

counsel. The basis of her claim was that Dr. Fontenot failed to appoint an attorney

chairperson within a year, which caused the use of the medical review panel

process to be waived on July 10, 2021. But La.R.S. 40:1231.8(A)(2)(c) clearly

requires both parties to agree on the appointment of a chairperson for the medical

review panel. Dr. Fontenot filed an exception of no cause of action. The trial

court held a hearing and granted the exception of no cause of action on March 27,

2022, dismissing Ms. Lejeune’s petition for nullity. This court affirmed the

judgment of the trial court, and the supreme court denied Ms. Lejeune’s

application for a supervisory writ. Lejeune v. Fontenot, 22-444 (La.App. 3 Cir.

1/4/23), 362 So.3d 911, writ denied, 23-452 (La. 5/16/23), 360 So.3d 839.

No action was taken on the suit filed in Acadia Parish during the pendency

of the litigation in St. Landry Parish and subsequent appeal to this court until June

27, 2023, when Dr. Fontenot filed a peremptory exception of res judicata. Dr.

Fontenot also sought sanctions pursuant to La.Code Civ.P. art. 863. The trial court

held a hearing on the exception of res judicata and motion for sanctions on

September 5, 2023.

On October 6, 2023, the trial court issued a judgment sustaining the

exception of res judicata, dismissing Ms. Lejeune’s claims with prejudice, and

ordering Ms. Lejeune’s counsel to pay attorney fees to Dr. Fontenot in the amount

of $2,000.00. Ms. Lejeune now appeals that judgment.

ASSIGNMENTS OF ERROR

On appeal, Ms. Lejeune asserts two assignments of error:

1. Whether District Court erred in granting Fontenot’s Exception of Res
Judicata dismissing Lejeune’s Petition for Damages.

2. Whether District Court erred in granting Fontenot’s Motion for Sanctions.

DISCUSSION

Much of Ms. Lejeune’s brief relitigates issues raised in the previous appeal

of this matter, and we decline to address those issues. In her first assignment of

error, she argues that the exception of res judicata should have been overruled.

Louisiana Revised Statutes 13:4231 states:

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Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the
litigation are extinguished and the judgment bars a subsequent
action on those causes of action.

(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action between
them, with respect to any issue actually litigated and
determined if its determination was essential to that judgment.

This court explained the review of a trial court judgment on an exception of res

judicata in Hannie v. Colonial Oaks AL Lafayette Emp., LLC, 21-349, p. 8

(La.App. 3 Cir. 2/9/22), 334 So.3d 17, 25:

Appellate review of the exception [of res judicata] requires a
determination of whether the trial court's decision was legally correct.
McCalmont v. McCalmont, 19-738 (La.App. 3 Cir. 4/29/20), 297
So.3d 1057. “The burden of proof is upon the pleader to establish the
essential facts to sustain the plea of res judicata.” Ins. Assocs., Inc. v.
Francis Camel Constr., Inc., 95-1955, p. 3 (La.App. 1 Cir. 5/10/96),
673 So.2d 687, 689. At the hearing on the exception, “evidence may
be introduced to support or controvert any of the objections pleaded,
when the grounds thereof do not appear from the petition.” La.Code
Civ.P. art. 931. When evidence is introduced in support of the
exception, “the trial court's factual findings are reviewed pursuant to
the manifest error—clearly wrong standard of review.” Richard v.
Taylor, 15-681, p. 7 (La.App. 3 Cir. 12/9/15), 179 So.3d 975, 981.

It is uncontroverted that the district court in St. Landry Parish found that Ms.

Lejeune’s malpractice claim against Dr. Fontenot prescribed in the September 9,

2021 judgment. That judgment was not appealed and is final. In her brief

argument on the assignments of error, she claims that this court’s previous opinion

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included language reserving her right to bring another action. Louisiana Revised

Statutes 13:4232(A) states:

A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res
judicata effect of the judgment;

(2) When the judgment dismissed the first action without prejudice;
or,

(3) When the judgment reserved the right of the plaintiff to bring
another action.

Ms. Lejeune cites this one sentence from this court’s previous opinion, arguing this

court reserved her right to bring another action:

Thus, and to preserve Lejeune’s medical malpractice claims in
this matter, Lejeune’s counsel merely had to timely file Lejeune’s
petition with the district court, which the record shows she failed to
accomplish.

Lejeune, 362 So.3d at 920. Ms. Lejeune claims that this suit in Acadia Parish was

timely filed because it was within 90 days of the dismissal of the medical review

panel process for failure to appoint an attorney chairperson. Ms. Lejeune fails to

acknowledge that the September 9, 2021 judgment found the claim initiating the

medical review panel process was untimely. We find no error in the judgment of

the trial court sustaining the exception of res judicata.

In her second assignment of error, Ms. Lejeune argues the trial court erred in

finding a violation of La.Code Civ.P. art. 863 and awarding sanctions against Ms.

Lejeune’s counsel of $2,000.00 in attorney fees. Article 863(B) states:

Pleadings need not be verified or accompanied by affidavit or
certificate, except as otherwise provided by law, but the signature of
an attorney or party shall constitute a certification by him that he has
read the pleading, and that to the best of his knowledge, information,
and belief formed after reasonable inquiry, he certifies all of the
following:

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(1) The pleading is not being presented for any
improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation.

(2) Each claim, defense, or other legal assertion in the
pleading is warranted by existing law or by a
nonfrivolous argument for the extension, modification, or
reversal of existing law.

(3) Each allegation or other factual assertion in the
pleading has evidentiary support or, for a specifically
identified allegation or factual assertion, is likely to have
evidentiary support after a reasonable opportunity for
further investigation or discovery.

(4) Each denial in the pleading of a factual assertion is
warranted by the evidence or, for a specifically identified
denial, is reasonably based on a lack of information or
belief.

In an appeal of an award of sanctions pursuant to La.Code Civ.P. art. 863, we

review the factual findings of the trial court for manifest error, and the award of

sanctions under the abuse of discretion standard. Collins v. Ferrellgas, Inc., 96-

810 (La.App. 3 Cir. 2/5/97), 689 So.2d 569. The trial court did not err in

determining that Ms. Lejeune’s counsel did not make a “reasonable inquiry” when

he filed this malpractice claim against Dr. Fontenot in Acadia Parish. We find no

abuse of discretion in the sanctions awarded.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Ms. Lejeune.

AFFIRMED.

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