ANSANTA COLE, ET AL. NO. 24-C-148
VERSUS FIFTH CIRCUIT
ST. JOSEPH OF HARAHAN, L.L.C., ET AL. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 827,574 , DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
August 07, 2024
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Susan M. Chehardy, Scott U. Schlegel, and Timothy S. Marcel
WRIT GRANTED, JUDGMENT REVERSED, EXCEPTION OF NO CAUSE OF ACTION SUSTAINED; JUDGMENT GRANTING DISCOVERY DISMISSED AS MOOT, CASE DISMISSED WITH PREJUDICE TSM SMC SUS COUNSEL FOR DEFENDANT/RELATOR, PLANTATION MANAGEMENT COMPANY, L.L.C., HIGHPOINT HEALTHCARE, L.L.C., AND ST. JOSEPH OF HARAHAN, L.L.C. Jimmy R. Faircloth, Jr. Mary K. Price Barbara B. Melton
COUNSEL FOR PLAINTIFF/RESPONDENT, ANSANTA COLE, OSBORNE PICOU, JR., AND TONIA HALL, AS SURVIVORS ON BEHALF OF OSBORNE PICOU, SR., INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED Matthew M. Coman Jordan M. Jeansonne Stephen M. Huber Christopher T. Whelen MARCEL, J.
Relators/Defendants, St. Joseph of Harahan, L.L.C., Highpoint Healthcare,
L.L.C., and Plantation Management Company, L.L.C. (collectively “St. Joseph”),
seek supervisory review of the trial court’s February 27, 2024, judgment (1)
overruling their peremptory exception of no cause of action and (2) granting
plaintiffs’ motion to compel discovery and motion to compel the La. C.C.P. art.
1442 deposition of St. Joseph.
For the following reasons, we grant St. Joseph’s writ application, reverse the
trial court’s February 27, 2024, judgment, and sustain St. Joseph’s peremptory
exception of no cause of action, dismissing plaintiffs’ claims against it, with
prejudice. Consequently, we also reverse the trial court’s February 27, 2024,
judgment, vacating the order for St. Joseph to produce discovery and present for a
La. C.C.P. art 1442 deposition, as moot.
FACTS AND PROCEDURAL HISTORY
St. Joseph is a skilled nursing facility located in Harahan, Louisiana.
Plaintiffs Ansanta Cole, Osborne Picou, Jr. and Tonia Hall, are the surviving
children of Osborne Picou, Sr. This action arises from Mr. Picou’s admission and
approximate twelve-month residency at St. Joseph as well as the admission and
residency of other similarly situated individuals.1 In their second amended class
action petition for damages (“second amended petition”), plaintiffs allege St.
Joseph’s affirmatively represented that Mr. Picou and others would receive nursing
treatment services in accordance with the Louisiana Nursing Home Residents Bill
of Rights (NHRBR)2 while knowing its facility was understaffed. This
misrepresentation, the second petition for damages alleges, induced Mr. Picou and
1 The record indicates that Mr. Osborne Picou, Sr. was a nursing home resident at the facility on or about August 10, 2021 to on or about August 2022. 2 La. R.S. 40:2010.6, et seq.
24-C-148 1 others to enter residency at the facility. It is also alleged that St. Joseph
intentionally withheld resources to increase its profits, resulting in actual nursing
staffing hours that were well below applicable federal nursing home administrative
standards which violated the NHRBR.
Plaintiffs’ second amended petition recites causes of action for fraud under
La. C.C. arts. 2315 and 1953 for which monetary damages, attorney’s fees and
costs are sought. The only damage alleged with specificity is the “… diminution
of the value between the nursing services promised by DEFENDANTS and those
actually rendered to Mr. Picou and others similarly situated, …” It further moves
for certification to proceed as a class action on behalf of current and former St.
Joseph residents.
In response to plaintiffs’ second amended petition, St. Joseph filed
peremptory exceptions of no right of action and no cause of action, and a dilatory
exception of improper cumulation of actions. Prior to the exceptions hearing,
plaintiffs filed a motion to compel discovery. St. Joseph objected to plaintiff’s
discovery requests, moving for entry of a protective order limiting discovery to the
threshold issue of class certification, and objected to plaintiffs’ notice of a La.
C.C.P. art. 1442 deposition of St. Joseph.
St. Joseph’s peremptory and dilatory exceptions and discovery motions
came for hearing on January 25, 2024. On February 27, 2024, the trial court issued
its written judgment which (1) sustained St. Joseph’s exception of no right of
action as to plaintiffs’ claim for injunctive relief under La. C.C.P. art. 3601, as Mr.
Picou is no longer a resident of the facility; (2) overruled St. Joseph’s exception of
no cause of action as to plaintiffs’ fraud claims; and (3) granted plaintiffs’ motion
to compel discovery, allowing plaintiffs to conduct merit-based discovery prior to
certification of a class. As part of the judgment, the trial court stayed discovery,
allowing St. Joseph the opportunity to seek review by this Court.
24-C-148 2 This timely writ application filed by St. Joseph followed, which presents
four assignments of error:
1. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 2315 claim because the scope of the duty owed under the NHRBR does not extend to damage awards. 2. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 2315 claim where Plaintiffs do not allege compensable injuries or actual harm. 3. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 1953 claim because the NHRBR creates a statutory duty, not an implied contractual obligation, as part of a resident admissions agreement. 4. The trial court erred in allowing Plaintiffs to conduct broad-based merits discovery prior to certification of a class action under La. C.C.P. art. 591.
DISCUSSION
Exception of No Cause of Action – Standard of Review
Three of St. Joseph’s four assignments of error address the trial court’s
denial of its exceptions of no cause of action to plaintiffs’ second amended
petition. The exception of no cause of action tests the legal sufficiency of the
petition by determining whether the law affords a remedy against the defendant to
anyone under the factual allegations of the petition. Everything on Wheels Subaru,
Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). No evidence may be
introduced to support or controvert the objection that the petition fails to state a
cause of action. La. C.C.P. art. 931. The exception is triable on the face of the
petition, and for the purpose of determining the issues raised by the exception, the
well-pleaded facts in the petition must be accepted as true, and all inferences
drawn in favor of the non-moving party for the purposes of the exception. Fink v.
Bryant, 01-987 (La. 11/28/01), 801 So.2d 346, 349. The inquiry is whether the
petition, applying the foregoing standards, states any valid cause of action for
relief. IECI, LLC v. South Central Planning and Development Commission, Inc.,
24-C-148 3 21-382 (La. App. 5 Cir. 2/23/22), 336 So.3d 601, 611. A petition should not be
dismissed for failure to state a cause of action unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of any claim which would entitle
him to relief. Fink, 801 So.2d at 349. Because the exception of no cause of action
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ANSANTA COLE, ET AL. NO. 24-C-148
VERSUS FIFTH CIRCUIT
ST. JOSEPH OF HARAHAN, L.L.C., ET AL. COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 827,574 , DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
August 07, 2024
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Susan M. Chehardy, Scott U. Schlegel, and Timothy S. Marcel
WRIT GRANTED, JUDGMENT REVERSED, EXCEPTION OF NO CAUSE OF ACTION SUSTAINED; JUDGMENT GRANTING DISCOVERY DISMISSED AS MOOT, CASE DISMISSED WITH PREJUDICE TSM SMC SUS COUNSEL FOR DEFENDANT/RELATOR, PLANTATION MANAGEMENT COMPANY, L.L.C., HIGHPOINT HEALTHCARE, L.L.C., AND ST. JOSEPH OF HARAHAN, L.L.C. Jimmy R. Faircloth, Jr. Mary K. Price Barbara B. Melton
COUNSEL FOR PLAINTIFF/RESPONDENT, ANSANTA COLE, OSBORNE PICOU, JR., AND TONIA HALL, AS SURVIVORS ON BEHALF OF OSBORNE PICOU, SR., INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED Matthew M. Coman Jordan M. Jeansonne Stephen M. Huber Christopher T. Whelen MARCEL, J.
Relators/Defendants, St. Joseph of Harahan, L.L.C., Highpoint Healthcare,
L.L.C., and Plantation Management Company, L.L.C. (collectively “St. Joseph”),
seek supervisory review of the trial court’s February 27, 2024, judgment (1)
overruling their peremptory exception of no cause of action and (2) granting
plaintiffs’ motion to compel discovery and motion to compel the La. C.C.P. art.
1442 deposition of St. Joseph.
For the following reasons, we grant St. Joseph’s writ application, reverse the
trial court’s February 27, 2024, judgment, and sustain St. Joseph’s peremptory
exception of no cause of action, dismissing plaintiffs’ claims against it, with
prejudice. Consequently, we also reverse the trial court’s February 27, 2024,
judgment, vacating the order for St. Joseph to produce discovery and present for a
La. C.C.P. art 1442 deposition, as moot.
FACTS AND PROCEDURAL HISTORY
St. Joseph is a skilled nursing facility located in Harahan, Louisiana.
Plaintiffs Ansanta Cole, Osborne Picou, Jr. and Tonia Hall, are the surviving
children of Osborne Picou, Sr. This action arises from Mr. Picou’s admission and
approximate twelve-month residency at St. Joseph as well as the admission and
residency of other similarly situated individuals.1 In their second amended class
action petition for damages (“second amended petition”), plaintiffs allege St.
Joseph’s affirmatively represented that Mr. Picou and others would receive nursing
treatment services in accordance with the Louisiana Nursing Home Residents Bill
of Rights (NHRBR)2 while knowing its facility was understaffed. This
misrepresentation, the second petition for damages alleges, induced Mr. Picou and
1 The record indicates that Mr. Osborne Picou, Sr. was a nursing home resident at the facility on or about August 10, 2021 to on or about August 2022. 2 La. R.S. 40:2010.6, et seq.
24-C-148 1 others to enter residency at the facility. It is also alleged that St. Joseph
intentionally withheld resources to increase its profits, resulting in actual nursing
staffing hours that were well below applicable federal nursing home administrative
standards which violated the NHRBR.
Plaintiffs’ second amended petition recites causes of action for fraud under
La. C.C. arts. 2315 and 1953 for which monetary damages, attorney’s fees and
costs are sought. The only damage alleged with specificity is the “… diminution
of the value between the nursing services promised by DEFENDANTS and those
actually rendered to Mr. Picou and others similarly situated, …” It further moves
for certification to proceed as a class action on behalf of current and former St.
Joseph residents.
In response to plaintiffs’ second amended petition, St. Joseph filed
peremptory exceptions of no right of action and no cause of action, and a dilatory
exception of improper cumulation of actions. Prior to the exceptions hearing,
plaintiffs filed a motion to compel discovery. St. Joseph objected to plaintiff’s
discovery requests, moving for entry of a protective order limiting discovery to the
threshold issue of class certification, and objected to plaintiffs’ notice of a La.
C.C.P. art. 1442 deposition of St. Joseph.
St. Joseph’s peremptory and dilatory exceptions and discovery motions
came for hearing on January 25, 2024. On February 27, 2024, the trial court issued
its written judgment which (1) sustained St. Joseph’s exception of no right of
action as to plaintiffs’ claim for injunctive relief under La. C.C.P. art. 3601, as Mr.
Picou is no longer a resident of the facility; (2) overruled St. Joseph’s exception of
no cause of action as to plaintiffs’ fraud claims; and (3) granted plaintiffs’ motion
to compel discovery, allowing plaintiffs to conduct merit-based discovery prior to
certification of a class. As part of the judgment, the trial court stayed discovery,
allowing St. Joseph the opportunity to seek review by this Court.
24-C-148 2 This timely writ application filed by St. Joseph followed, which presents
four assignments of error:
1. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 2315 claim because the scope of the duty owed under the NHRBR does not extend to damage awards. 2. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 2315 claim where Plaintiffs do not allege compensable injuries or actual harm. 3. The trial court erred in overruling Defendants’ exception of no cause of action for Plaintiffs’ Article 1953 claim because the NHRBR creates a statutory duty, not an implied contractual obligation, as part of a resident admissions agreement. 4. The trial court erred in allowing Plaintiffs to conduct broad-based merits discovery prior to certification of a class action under La. C.C.P. art. 591.
DISCUSSION
Exception of No Cause of Action – Standard of Review
Three of St. Joseph’s four assignments of error address the trial court’s
denial of its exceptions of no cause of action to plaintiffs’ second amended
petition. The exception of no cause of action tests the legal sufficiency of the
petition by determining whether the law affords a remedy against the defendant to
anyone under the factual allegations of the petition. Everything on Wheels Subaru,
Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). No evidence may be
introduced to support or controvert the objection that the petition fails to state a
cause of action. La. C.C.P. art. 931. The exception is triable on the face of the
petition, and for the purpose of determining the issues raised by the exception, the
well-pleaded facts in the petition must be accepted as true, and all inferences
drawn in favor of the non-moving party for the purposes of the exception. Fink v.
Bryant, 01-987 (La. 11/28/01), 801 So.2d 346, 349. The inquiry is whether the
petition, applying the foregoing standards, states any valid cause of action for
relief. IECI, LLC v. South Central Planning and Development Commission, Inc.,
24-C-148 3 21-382 (La. App. 5 Cir. 2/23/22), 336 So.3d 601, 611. A petition should not be
dismissed for failure to state a cause of action unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of any claim which would entitle
him to relief. Fink, 801 So.2d at 349. Because the exception of no cause of action
raises a question of law and the trial court’s decision is based solely on the
sufficiency of the petition, review of the trial court’s ruling on an exception of no
cause of action is de novo. Fink, supra.; City of New Orleans v. Bd. of Comm’rs of
Orleans Levee Dist., 93-690 (La. 7/5/94), 640 So.2d 237, 253.
In its exception of no cause of action, St. Joseph contends that plaintiffs’
second amended petition fails to state a cause of action in fraud under La. C.C. art.
2315. As an initial matter, plaintiffs argue this Court has previously rejected
defendants’ same arguments when we denied review of defendants’ writ
application in Cambre v. Riverlands Home Grp., L.L.C., 23-271 (La. App. 5 Cir.
6/27/23), 2023 WL 4195827. We disagree. The denial of a writ application has no
precedential value for any purpose, and does not bar reconsideration of the same
issue. Horton v. Blackrock Aggregates, LLC, 15-1094 (La. App. 4 Cir. 3/8/17), 213
So.3d 429.
1. Delictual Fraud - La. C.C. art. 2315
In its first two assignments of error, St. Joseph asserts the trial court erred in
overruling its exception of no cause of action for plaintiffs’ La. C.C. art. 2315
claim. St. Joseph argues the scope of its duty under the NHRBR does not extend to
monetary damage awards and that plaintiffs’ second amended petition lacks
allegations of actual harm.
Under Louisiana law, cases presenting causes of action for misrepresentation
are evaluated using a duty-risk analysis. Daye v. General Motors Corp., 97-1653
(La. 9/9/98), 720 So.2d 654, 659. Elements of the cause of action require a
24-C-148 4 plaintiff to show: (1) the defendant had duty to conform his conduct to a specific
standard of care (the duty element); (2) the defendant failed to conform his conduct
to the appropriate standard; (3) the defendant’s substandard conduct was a cause-
in-fact of the plaintiff’s injuries (breach of duty element); (4) the substandard
conduct was a legal cause of the plaintiff’s injuries (the scope of the liability or
scope of protection element); and (5) actual damages (damages element). For
liability to attach, a plaintiff must be able to prove every element of the duty-risk
analysis. Wiltz v. Brothers Petroleum, L.L.C., 13-332 (La. App. 5 Cir. 4/23/14),
140 So. 3d 758, 766, writs denied, 14-1252 (La. 10/10/14), 151 So.3d 581, and 14-
1298 (La. 10/10/14), 151 So.3d 583.
This second amended petition alleges that plaintiffs suffered legal harm
because St. Joseph intentionally understaffed its nursing home facility below
NHRBR standards in order to increase profits to its ownership. Plaintiffs posit a
duty upon a nursing home to inform residents of its non-compliance with NHRBR
staffing and service requirements. They allege that duty was breached when St.
Joseph knowingly and intentionally misrepresented the services to be delivered to
Mr. Picou and its other residents. Breach of that duty, plaintiffs contend, was the
legal cause of their damages.
De novo review of the second amended petition shows that plaintiffs seek
the value of services not delivered as monetary damages. In paragraph 21,
plaintiffs allege that St. Joseph failed to provide resources which resulted in
staffing deficits in violation of the NHRBR. The relief plaintiffs pray for is
recovery of the “the diminution of the value between nursing services promised by
defendants and those rendered to Mr. Picou…” It does not contain factual
allegations describing any other damage suffered by plaintiffs.
The essence of their delictual fraud claim is St. Joseph’s alleged failure to
provide adequate staffing required under the NHRBR. Monetary damages sought
24-C-148 5 are the value of the services that were not provided to Mr. Picou and others. While
a claim for other damages incidental to the alleged fraudulent misrepresentations of
St. Joseph are pled, the second amended petition does not allege Mr. Picou or any
other resident was actually harmed from inadequate staffing.
A close reading of the petition shows that plaintiffs’ La. C.C. art. 2315
claim is inextricably interwoven with violations of the NHRBR.3 Causes of action
for actual monetary damages based upon violations of the NHRBR were statutorily
permitted prior to 2003. However, legislative amendments eliminated claims for
monetary damages arising from violation of the NHRBR. Private actions for
NHRBR violations are limited to claims by nursing home residents for injunctive
relief plus attorney’s fees and costs. Heinrich v. Maison De’Ville Nursing Home of
Harvey, LLC, 21-240 (La. App. 5 Cir. 6/30/21) (unpublished writ disposition);
Knight v. Jefferson Healthcare Center, 21-736 (La. App. 5 Cir. 2/10/20)
(unpublished writ disposition).
The operative facts alleged in the second amended petition are alleged
violations of the NHRBR. Accepting those allegations as true, Louisiana law does
not permit causes of action to recover monetary damages for NHBR violations.
Because plaintiffs’ second amended petition does not include allegations
supporting a cause of action based in fraud under La. C.C. art. 2315 outside of the
NHRBR violations, we find that the second amended petition fails to state a cause
of action.
2. Contractual Fraud - La. C.C. art. 1953
In its third assignment of error, St. Joseph contends plaintiffs’ second
amended petition fails to state a cause of action for contractual fraud under La.
C.C. art. 1953, including fees under La. C.C.P. art. 1958. Louisiana law
recognizes causes of action for contractual fraud by alleging fraud in the formation
3 Plaintiffs’ second amended petition paragraphs, 3, 10, 11, 12, 13, 18, and 21.
24-C-148 6 of the contract. Stutts v. Melton, 13-557 (La. 10/15/13), 130 So.3d 808, 813-815.
The essential elements of intentional or fraudulent misrepresentation in the
formation of a contract are (1) misrepresentation of a material fact (2) made with
the intent to deceive, (3) causing justifiable reliance with resulting injury. See
McGaha v. Franklin Homes, Inc. 21-244 (La. App. 4 Cir. 2/4/22), 335 So.3d 842,
865.
Under the provisions of the NHRBR, all nursing homes are required to adopt
and make public a statement of the rights and responsibilities of its residents and
treat its residents in accordance with the rights listed therein. See La. R.S.
40:2010.8. The basis for the alleged contractual fraud is the statement regarding
staffing that all nursing home facilities are required to provide to residents under
La. R.S. 40:2010.8.
In this matter, plaintiffs’ contractual fraud theory relies on the admission
agreements incorporated in the NHRBR. Plaintiffs theorize the admission
agreements created an implied contractual obligation, which obligates nursing care
facilities to disclose non-compliance with the NHRBR to prospective residents.
However, plaintiffs’ second amended petition fails to demonstrate an injury to Mr.
Picou or others beyond the value of services not received. As with their claim for
delictual fraud, the operative facts of plaintiffs claim for contractual fraud is woven
through the NHRBR. Again, the legislature, by its 2003 amendment to La. R.S.
40:2010.9 has limited claims under the NHRBR to that of injunctive relief by a
nursing home resident. The exclusive remedy since the amendment of the statute
is injunctive relief, plus attorney fees and cost. See Butler-Bowie v. Olive Branch
Senior Care Ctr., 52,520 (La. App. 2 Cir. 2/27/19), 2 So.3d 478,484; see also
Watson v. Woldenberg Vill., Inc. 16-0159 (La. App. 4 Cir. 10/5/16), 203 So.3d
317, 321, writ denied, 16-1964 (La. 12/16/16), 211 So.3d 1168. Consequently, we
24-C-148 7 find plaintiffs’ second amended petition fails to state a cause of action for
contractual fraud under La. C.C. art. 1953.
Upon de novo review, we find for the foregoing reasons that the trial court
erred in overruling the exception of no cause of action. We reverse the trial court's
judgment overruling St. Joseph’s exception of no cause of action and dismiss, with
prejudice, plaintiffs’ claims for failure to state a cause of action for delictual fraud
under La. C.C. art. 2315 and contractual fraud and fees under La. C.C. arts. 1953
and 1958 set forth in their second amended petition. Because violation of the
NHRBR is the nucleus of plaintiffs’ operative facts, we further find that
amendment would be futile. As we have dismissed plaintiffs’ second amended
petition, St. Joseph’s writ application addressing the plaintiffs’ motion to compel
discovery and La. C.C.P. art. 1442 deposition is moot. The judgment granting
plaintiffs’ motion to compel discovery is vacated.
WRIT GRANTED, JUDGMENT REVERSED, EXCEPTION OF NO CAUSE OF ACTION SUSTAINED; JUDGMENT GRANTING DISCOVERY DISMISSED AS MOOT, CASE DISMISSED WITH PREJUDICE
24-C-148 8 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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24-C-148 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) BARBARA B. MELTON (RELATOR) JIMMY R. FAIRCLOTH, JR. (RELATOR) MARY K. PRICE (RELATOR) CHRISTOPHER T. WHELEN (RESPONDENT) JORDAN M. JEANSONNE (RESPONDENT) STEPHEN M. HUBER (RESPONDENT)
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