Kimberly Brooke Labauve v. Louisiana Medical Mutual Ins. Co.
This text of Kimberly Brooke Labauve v. Louisiana Medical Mutual Ins. Co. (Kimberly Brooke Labauve v. Louisiana Medical Mutual Ins. Co.) 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.
Opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-451
KIMBERLY BROOKE LABAUVE, ET AL.
VERSUS
LOUISIANA MEDICAL MUTUAL INS. CO., ET AL.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-249-14 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
SYLVIA R. COOKS
JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.
APPELLANTS’ MOTION TO CORRECT AND/OR CLARIFY ORDER DENIED AS MOOT. RULE RECALLED; APPEAL DISMISSED.
James J. Hautot, Jr. Judice & Adley Post Office Drawer 51769 Lafayette, LA 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANTS/APPELLEES: Louisiana Medical Mutual Ins. Co. Dr. Darryl Elias, Jr. LHA Physicians’ Trust Sarah E. Hunter Moore & Hunter 6513 Perkins Road Baton Rouge, LA 70808 (225) 766-1100 COUNSEL FOR PLAINTIFFS/APPELLANTS: Kimberly Brooke Labauve Shawnavon Lynn Labauve Kimberly & Shawnavon Labauve o/b/o Molly Ann Labauve COOKS, Judge.
On its own motion, this court issued a rule for Plaintiffs-Appellants, Kimberly
Brooke Labauve and Shawnavon Lynn Labauve, individually and on behalf of their
minor daughter, Molly Ann Labauve, to show cause, by brief only, why this appeal
should not be dismissed as premature, citing La.Code Civ.P. art. 2087(D). Plaintiffs
filed an Objection to Proposed Judgment of Dismissal Filed by Defendant and a
response to the rule to show cause. For the reasons assigned herein, we recall the rule
to show cause, deny the motion for clarification as moot, and dismiss the appeal.
This medical malpractice case was tried before a jury. The first question on the
jury verdict form asked, “Do you find, by a preponderance of the evidence[,] that the
treatment provided by Dr. Darryl Elias[,] Jr., to Molly Labauve fell below the
standard of care required of Dr. Elias as an obstetrician gynecologist,” to which the
jury answered “No”. Therefore, on November 5, 2018, the trial court signed a written
judgment dismissing Plaintiffs’ claims against Defendants, with full prejudice, in
accordance with the jury’s finding.
However, the trial court’s judgment also contained the following disposition:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Kimberly Labauve and Shawnavon Labauve, individually and on behalf of their minor child, Molly Labauve[,] are cast with all general and special costs of these proceedings, such costs to include all costs on file with the Jefferson Davis Parish Clerk of Court, all costs of the Medical Review Panel proceedings, all expert witness fees, and all jury costs, as will be fixed at a Rule to Tax Costs to be filed by defendant (sic) and scheduled by the Court.
Notice of the rendition of this judgment was mailed to all parties’ counsel by the
district court’s clerk’s office on November 13, 2018.
The next document contained in the appellate record, though, is Plaintiffs’
Objection to Proposed Judgment of Dismissal Filed by Defendant. The first page of
this document bears a stamp at the bottom of the page reading “FAXED”, with a
handwritten notation below that reading “11-7-18”, presumably the date on which this document was sent by facsimile to the Clerk of Court’s Office for the Thirty-First
Judicial District Court. The certification of service indicates that the entire document
was also sent to opposing counsel on November 6, 2018. Nevertheless, the clerk of
court’s stamp on the final page of the document indicates that it was filed as of
November 13, 2018.
In this Objection, Plaintiffs complain that the “proposed” final judgment
assesses them with all costs for the entire proceedings. Instead, Plaintiffs asked that
the trial court sign a judgment which contains the statement, “IT IS FURTHER
ORDERED, ADJUDGED AND DECREED that the Court will render judgment as
to costs taxable as court costs, if any, after contradictory hearing.” Indicating that
Defendants were going to be filing a Motion to Tax Costs and that Plaintiffs would
file an opposition to such motion, Plaintiffs urged that the assessment of costs for the
entire matter against them would be inequitable.
As expected by Plaintiffs, then, on November 14, 2018, Defendants proceeded
to file their Motion to Tax Costs and asked that the trial court issue a rule for the
Plaintiffs to show cause why a judgment in the amount of the costs, as set forth in the
attached documentation submitted with the motion, should not be rendered against
them. As promised by Plaintiffs, they filed their opposition memorandum to the
motion and asked that the parties be cast to bear their own costs or, alternatively, that
the costs submitted by Defendants be reduced. On January 30, 2019, Defendants filed
a response to Plaintiffs’ opposition.
Meanwhile, however, Plaintiffs filed their Motion for Order of Devolutive
Appeal of Final Judgment and Request for Return Date with the trial court on January
14, 2019. The trial court signed the order granting the devolutive appeal on that same
day.
On January 29, 2019, the Motion to Tax Costs came for hearing. At the
conclusion of the hearing and despite the prior ruling on the division of costs made in
2 the final judgment, the trial court ordered that each party bear its own costs of the
litigation, including the costs for the medical review panel proceedings. Then, on
February 19, 2019, the trial court signed another judgment which, in pertinent part,
reads, “IT IS ORDERED, that defendants’ Motion to Tax Costs is hereby DENIED
and that all parties shall bear their own costs, including the costs of this motion.”
The record in this appeal was lodged in this court on June 13, 2019, and the
subject rule to show cause was issued by this court on June 14, 2019. In response to
the rule, Plaintiffs first filed Appellants’ Motion to Correct and/or Clarify Order.
Then, Plaintiffs filed Appellants’ Brief in Response to Order to Show Cause Why
Their Appeal Should Not be Dismissed as Premature.
After examining the record in this appeal more carefully, we have determined
that the rule to show cause was issued improvidently on the basis of La.Code Civ.P.
art. 2087(D), and we hereby recall the rule at this time. However, this is not the end
of our inquiry. This court has “the duty to determine sua sponte whether subject
matter jurisdiction exists, even when the parties do not raise the issue.” Gabriel v.
Delta Air Lines, Inc., 16-210, p. 2 (La.App. 5 Cir. 10/19/16), 202 So.3d 1184, 1185.
The trial court entered judgment against Plaintiffs assessing against them “all
general and special costs of these proceedings, such costs to include all costs on file
with the Jefferson Davis Parish Clerk of Court, all costs of the Medical Review Panel
proceedings, all expert witness fees, and all jury costs”. A final judgment must
contain proper decretal language. “The specific relief granted should be determinable
from the judgment without reference to an extrinsic source such as pleadings or
reasons for judgment.” Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech.,
Inc., 10-477, p. 13 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 916. In the instant case,
we find this is lacking in the judgment rendered November 5, 2018. For instance, in
order to know what the costs were for the medical malpractice review panel
proceedings, reference would necessarily have to be made to documents not contained
3 in the judgment.
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