Hamblen v. Hospital Service District No. 1

775 So. 2d 1214, 99 La.App. 1 Cir. 2088, 2000 La. App. LEXIS 3590, 2000 WL 1868513
CourtLouisiana Court of Appeal
DecidedDecember 22, 2000
DocketNo. 99 CA 2088
StatusPublished
Cited by10 cases

This text of 775 So. 2d 1214 (Hamblen v. Hospital Service District No. 1) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamblen v. Hospital Service District No. 1, 775 So. 2d 1214, 99 La.App. 1 Cir. 2088, 2000 La. App. LEXIS 3590, 2000 WL 1868513 (La. Ct. App. 2000).

Opinion

J^LeBLANC, J.

This is an appeal by the plaintiff, Janet Hamblen, individually and as tutrix of her quadriplegic minor son, David Wayne Fag-gard, from a judgment of dismissal rendered by the trial court in favor of the defendants, Hospital Service District No. 1, the owner and operator of Terrebonne General Medical Center and Kevin J. Por-tier, hereinafter referred to as TGMC, on the basis of plaintiffs counsel repeated failure to ignore a motion to compel discovery documents.

Procedural Background

On January 15, 1998, TGMC filed a petition to initiate discovery subsequent to plaintiffs filing a medical review proceeding. TGMC immediately began discovery by way of scheduled depositions and requests for production of documents to various medical providers as well as to the plaintiff. The record reveals that on June 9, 1998, plaintiff received TGMC’s request for production of documents.2 On June 24, 1998, TGMC wrote a demand letter to plaintiffs counsel (Brooks), for the overdue responses to the prior request. The letter noted the importance of the requested documents (medical release authorizations) and indicated a motion to compel would be filed if the requests were not answered promptly. On September 1, 1998, TGMC sent interrogatories via certified mail to Brooks, and again requested responses to the prior overdue requests for production of documents. The record reveals that the interrogatories were received by Brooks on September 8, 1998. Despite yet another demand letter for responses sent to Brooks on September 28, 1998, plaintiff failed to respond to the discovery requests.

| .¡Therefore, on October 13, 1998, TGMC filed a motion and order to compel discovery responses, which was set for hearing on December 4, 1998, more than a month and a half later; still, no responses from plaintiff were made. Inexplicably, neither plaintiff nor plaintiffs counsel, Brooks, appeared for the hearing on the motion to compel. Counsel for TGMC appeared and explained at the hearing that the afternoon [1216]*1216of the 3rd (the prior day) he received a fax of “purported” answers to the discovery requests from plaintiffs counsel which were incomplete and non-responsive. Furthermore, no responses at all were submitted for six interrogatories and two production of documents requests. Counsel for TGMC stated that he faxed Brooks regarding the incompleteness of the responses and did not hear anything further. The trial court granted the motion ordering plaintiff to respond to the discovery requests within forty days, or by January 14, 1999, and assessed attorney’s fees in the amount of $400.00 against Brooks.

On January 15, 1999, TGMC sent another letter to Brooks again requesting answers to its discovery requests, specifically detailing the incompleteness and non-responsiveness of the answers provided by the plaintiff and demanding payment of the $400.00 attorney’s fees assessed by the court. The Tetter indicated that if response was not made by January 25, 1999, a motion and order for contempt would be filed.

When no response was made, TGMC filed a motion and order for contempt and/or to dismiss, which motion was set for hearing on March 5, 1999. Brooks made an appearance at this hearing, and in response to the judge’s questioning regarding his failure to pay the $400.00 assessed at the prior hearing, he simply alleged his belief that the judgment was invalid on its face. (Inexplicably, counsel for plaintiff did not take writs or appeal the first judgment.) When questioned about the discovery requests, Brooks continued to maintain that he had answered them; with regard to the incomplete and non-responsive answers, Brooks told the judge that he had ^received a letter from plaintiffs alleged new counsel, to whom he had sent the entire file, including all discovery requests. However, upon further questioning from the court, including a recess during which the court ordered a faxed copy of the letter sent to Brooks by the alleged new counsel to be produced, none of Brooks’ allegations were substantiated. Indeed, the court found that clearly the “new counsel” was merely reviewing the case, and had not been hired by plaintiff. Noting that Brooks had not filed a motion to withdraw, and no motion to enroll had' been filed by the alleged new counsel, the trial court found Brooks obligated by the prior judgment, of which he was in contempt, and assessed an additional $600.00 in attorney’s fees against him. The court continued the remainder of the rule, regarding the continuing request for supplemental discovery answers and a request for dismissal, and fixed it for hearing on March 26,1999.

On March 24,1999, two days prior to the second hearing date on TGMC’s motion and order for contempt and to dismiss, plaintiff filed an “answer” by way of an attached affidavit that had been executed by Ms. Hamblen. The affidavit, which we deem insufficient for reasons discussed more fully below, contains assertions by Ms. Hamblen purporting to excuse all of Brooks’ deficiencies in refusing to respond to discovery requests by the fact that Hamblen, who was overburdened by the care required of her son, had been unable to assist Brooks in making the responses.

The second hearing on the motion for contempt and/or to dismiss was held on March 26, 1999. Despite numerous verbal assurances made by Brooks in open court at the prior hearing to defense counsel to meet him in the hallway so Brooks could pay the entire $1000 fee assessed against him, the record reveals that at the time of the second hearing, Brooks still had not paid the fine or responded to the discovery requests as ordered by the court. Given an opportunity to add “anything that you might have in addition to what you’ve already submitted,” Brooks merely relied on the previously | ^submitted affidavit. The trial court promptly ordered the matter dismissed. This appeal, of the judgment of dismissal and the prior judgment impos[1217]*1217ing sanctions, follows.3

Analysis

Incredibly, on appeal Brooks asserts that he “at no time violated an Order to compel discovery,” and argues that the trial court erred in imposing sanctions against him and in dismissing the plaintiffs case. The record before us makes abundantly clear the complete inaccuracy of these assertions.

Louisiana Code of Civil Procedure Article 1471, entitled “Failure to comply with order compelling discovery; sanctions” governs the situation. Article 1471 provides that if a party fails to obey an order to permit discovery, including an order compelling discovery made pursuant to La. C.C.P. art. 1469, the court may make such orders in regard to the failure as are just, including that specified in section (3) of Article 1471 as follows:

An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any pant thereof, or rendering a judgment by default against the disobedient party. (Emphasis added)

The article further provides that,

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, | fiincluding attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award Of expenses unjust.

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775 So. 2d 1214, 99 La.App. 1 Cir. 2088, 2000 La. App. LEXIS 3590, 2000 WL 1868513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamblen-v-hospital-service-district-no-1-lactapp-2000.