Shaunna B. Burrell and Troy D. Burrell v. Interim Lsu Hospital, Now Known As, University Medical Center Management Corporation, Dr. Heather Melissa Murphy-Lavoie, M.D., Dr. Talia Rachelle Walker, M.D., Dr. Lionel A. Branch, Jr., M.D., Dr. Felix Iran Lopez-Bermudez, M.D., Abc Insurance Company, and Def Insurance Company

• Court: Louisiana Court of Appeal
• Decided: June 10, 2020
• Docket: 2019-CA-1095
• Status: Published

Opinion

SHAUNNA B. BURRELL AND * NO. 2019-CA-1095 TROY D. BURRELL * VERSUS COURT OF APPEAL * UMC, NOW KNOWN AS, FOURTH CIRCUIT UNIVERSITY MEDICAL * CENTER MANAGEMENT STATE OF LOUISIANA CORPORATION, DR. ******* HEATHER MELISSA MURPHY-LAVOIE, M.D., DR. TALIA RACHELLE WALKER, M.D., DR. LIONEL A. BRANCH, JR., M.D., DR. FELIX IRAN LOPEZ- BERMUDEZ, M.D., ABC INSURANCE COMPANY, AND DEF INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

SHAUNNA B. BURRELL AND NO. 2019-C-0423 TROY D. BURRELL

VERSUS

UMC, NOW KNOWN AS UNIVERSITY MEDICAL MANAGEMENT CORPORATION, ET AL.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-10935, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Edwin A. Lombard ****** (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Tiffany G. Chase)

John Karl Etter Esq., RODNEY & ETTER, LLC 365 Canal Street, Suite 2690 New Orleans, LA 70130 Michael G. Bagneris DAVILLIER LAW GROUP 935 Gravier St., Suite 1702 New Orleans, LA 70112

COUNSEL FOR PLAINTIFFS/APPELLANTS

C. WM. Bradley, Jr. Richard S. Crisler L. David Adams BRADLEY MURCHISON KELLY & SHEA LLC 1100 Poydras St., Suite 2700 New Orleans, LA 70163-2700

Peter J. Wanek Lindsay G. Faulkner Kathryn T. Trew WANEK KIRSCH DAVIES, LLC 1340 Poydras St., Suite 2000 New Orleans, LA 70112

Jeff Landry Attorney General Amber Mandina Babin Assistant Attorney General LA Attorney General's Office Dept. of Justice 1450 Poydras St., Ste. 900 New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED; WRIT DENIED AS MOOT

JUNE 10, 2020 EAL DLD TGC

In this consolidated matter, the Appellants, Shaunna B. Burrell and her

husband Troy D. Burrell , seek review of the May 10, 2019 judgment of the district

court, dismissing their medical malpractice lawsuit for failure to timely post a bond

in accordance with a February 7, 2019 Consent Judgment. Finding no error based

upon our review of the applicable law and the record, we affirm the judgment of

the district court for the reasons more fully discussed herein.

Additionally, Dr. Lionel A. Branch, Jr. and Dr. Felix Iran Lopez-Bermudez,

seek supervisory review of the district court’s April 29, 2019 judgment, denying

their Exception of Insufficiency of Service of Process. We deny the writ

application as moot because the underlying action is dismissed.

Facts and Procedural History

The Burrells filed a medical malpractice lawsuit against Dr. Heather Melissa

Murphy-Lavoie, M.D., Dr. Talia Rachelle Walker, M.D., Dr. Branch, M.D., Dr.

Lopez-Bermudez, M.D. and the medical staff of the Interim LSU Hospital in New

1 Orleans, now known as University Medical Center Management Corporation

(“UMC”), on October 30, 2018 in Civil District Court.1

In early December 2018, UMC filed a Motion for Bond Costs, which was set

for hearing in February 2019. The day prior to the hearing, on February 7th, the

parties entered into a Consent Judgment wherein the Burrells agreed to post a cash

or surety bond covering all costs of the medical review panel, $3,300, within 30

days of the date of the judgment.

The Consent Judgment stated that UMC and the Burrells agreed the Motion

to Post Bond had merit in consideration of the unanimous decision of the medical

review panel in favor of UMC, under La. Rev. Stat. 40:1231.8 (I)(2)(c). Moreover,

the Burrells consented to posting a cash or surety bond of $3,300 “within 30 days

of the signing” of the Consent Judgment on penalty of dismissal of their action

with prejudice. The Consent Judgment provided “that the plaintiffs Shauna B.

Burrell and Troy D. Burrell shall post a cash or surety bond, approved by the

Court, in the amount of $3,300 within 30 days of the date of signing of this

Judgment.” It was further decreed “if plaintiffs should fail to post the required

bond within 30 days as set forth herein, plaintiffs’ action shall be dismissed in its

entirety with prejudice at plaintiffs’ cost.” Counsel for both parties signed the

Consent Judgment as well as the trial judge.

1 In 2016, the Burrells filed a petition for a medical review panel with the Louisiana Division of Administration. The medical review panel convened in July 2018, determining that the defendants acted within the applicable standard of care. The Burrells subsequently filed the instant suit in Civil District Court.

2 As the 30-day time period elapsed, Doctors Branch and Lopez-Bermudez

(collectively “the Doctors”) filed an Exception of Insufficiency of Service of

Process. The Doctors, who are state employees, averred the Burrells’ lawsuit

should be dismissed due to their failure to comply with statutory requirements to

serve the Louisiana Attorney General, the Office of Risk Management and the

head of the department for the Board of Supervisors for LSU, under La. Rev. Stat.

39:1538 and La. Rev. Stat. 13:5107, respectively.2 Service was requested upon the

Doctors personally. Following an April 2019 hearing, the district court denied

their exception. The Doctors timely filed a supervisory writ application seeking

review of the April 15, 2019 ruling, which is consolidated with the instant appeal.

Meanwhile, the 30-day period set forth in the Consent Judgment lapsed on

or about March 8, 2019, without the Burrells posting the required bond. UMC

filed a Motion to Dismiss for Failure to Post Bond for Costs on March 13, 2019.

Although the Motion to Dismiss was initially set for hearing in April 2019, it was

ultimately continued to May 10, 2019.

Counsel for the Burrells avers that he was unable to secure a bond between

the April and May hearings. Consequently, he signed an Affidavit of Surety,

attesting that he would personally serve as surety for the medical review panel

costs, which the Burrells attached to an Ex Parte Motion to Post Bond.

2 The Doctors cite La. Rev. Stat. 39:1538(D), mandating “process shall be served upon the head of the department concerned, the office of risk management, and the attorney general.” The Doctors assert the “department concerned” is the Board of Supervisors of Louisiana State University Agricultural and Mechanical College (LSU), under the facts presented. Additionally, they cite La. Rev. Stat. 13:5107(A)(2), which requires citation and service on the attorney general within 90 days.

3 At the May 10, 2019 hearing, the district court granted UMC’s motion,

dismissing the action of the Burrells with prejudice. The district court denied the

Burrells’ Ex Parte Motion to Post Bond. The Burrell’s later filed a Motion for

New Trial, which the district court also denied. This timely appeal followed.

The Appellants raise numerous assignments of error, principally asserting

that their counsel’s failure to post bond was not their fault and the district court

erred in denying their Ex Parte Motion to Post Bond. However, the crux of this

matter involves a determination of whether the Consent Judgment is binding upon

the Burrells. We find that it is. Moreover, because this issue is dispositive of the

consolidated matter, we first address the appeal of the May 10, 2019 judgment

prior to discussing the writ application of the Doctors.

Consent Judgment

The Burrells’ principal argument on appeal is that they should not be held

accountable to the Consent Judgment terms because their counsel erred in failing

to timely procure a bond on their behalf. Seeking leniency and the opportunity to

post a bond, the Burrells maintain it was not their fault that the bond was not

timely posted. This argument is misplaced because the Burrells were aware of the

ramifications of failing to timely post the bond.

“A consent judgment has binding force from the presumed voluntary

acquiescence of the parties, not from adjudication by the court.” Succession of

Simmons, 527 So.2d 323, 325 (La.App. 4th Cir. 1988) (citing Ritchey v. Azar, 383

4 So.2d 360 (La.1980); City of New Orleans v. Vanlangendonck, 433 So.2d 432

(La.App. 4th Cir.1983)). Moreover, “a consent judgment is a bilateral contract

wherein parties adjust their differences by mutual consent.” Plaquemines Par.

Gov't v. Getty Oil Co., 95-2452, p. 6 (La. 5/21/96), 673 So.2d 1002, 1006 (citing

La. Civ. Code art. 3071; Preston Oil Co. v. Transcontinental Gas Pipe Line Corp.,

594 So.2d 908, 913 (La.App. 1st Cir.1991)).

Recently, in State v. Alexcee, 18-0714 (La.App. 4 Cir. 12/26/18), 262 So.3d

949, writ denied, 19-0150 (La. 6/3/19), 272 So.3d 545, we explained that review of

consent judgments requires a determination of the intent of the parties based upon

the language used therein:

‘[I]nterpretation of a consent judgment, i.e., a contract between parties, is a determination of the common intent of the parties.’ Mayo v. Hutchison, 2016-1642, p. 10 (La.App. 1 Cir. 9/27/17), 232 So.3d 567, 574 (citing La. C.C. art. 2045). The intent of the parties is to be determined by the words of the contract when those words are clear and explicit and lead to no absurd consequences. Id.

Id., 18-0714, pp. 6-7, 262 So.3d at 953.

As noted above, the Consent Judgment stated the Burrells agreed and were

ordered to: post a cash or surety bond of $3,300 within 30 days of February 7,

2019; and the penalty for failing to timely post a bond was dismissal with

prejudice. The wording agreed to by the parties was clear and unambiguous. It is

uncontested in this matter that the terms agreed to by the Burrells, as negotiated by

their counsel, were not complied with by them.

Counsel for the Burrells admits his failure to consider the decretal language

contained within the Consent Judgment regarding dismissal of his clients’ action

5 with prejudice for noncompliance. His subsequent attempts to rectify his failure

after the prescribed 30-day period lapsed, however, are insufficient to comply with

the terms of the Consent Judgment.

The Burrells cite to general jurisprudence that dismissal is an extreme

action, requiring evidence that they, as plaintiffs, personally acted with willful

disobedience, bad faith or fault. Horton v. McCary, 635 So.2d 199, 203 (La.

1994). However, they cite no legal support for the application of such principles

under the unique facts presented, where plaintiffs entered into a consent judgment

binding themselves to dismissal of their own action when conditions failed to be

met. Moreover, the Burrells, as the noncompliant party to the Consent Judgment,

were aware from the agreed-upon terms that noncompliance would result in

dismissal of their action with prejudice. Therefore, they are not exempt from the

sanction of dismissal. Medical Review Panel Proceedings of Peter v. Touro

Infirmary, 05-0317, p. 5 (La.App. 4 Cir. 7/6/05), 913 So.2d. 131, 134 [holding that

the ultimate sanction of dismissal should be imposed only when the record shows

that the plaintiff is clearly aware that his or her noncompliance will result in

dismissal].

In light of this, the district court did not err in denying the Burrells’ Ex Parte

Motion to Post Bond when the time period for posting the same had lapsed.3

Granting their Ex Parte motion would give the valid Consent Judgment no effect

3 The Burrells assert that La. Rev. Stat. 40:1231.8 (I)(2)(C)—setting forth the requirement of posting a bond in medical malpractice suits where a unanimous medical review panel decision was rendered in favor of the defendant healthcare provider—does not provide a time period within which a bond is to be posted. While this is accurate, the Burrells willingly bound themselves to a time period in the Consent Judgment.

6 and would have prejudiced the Appellees by forcing them to continue defending

the malpractice suit. When a consent judgment is signed by the district court, as

here, it becomes a legal judgment. In re Jones, 10-66, p. 22 (La. App. 5 Cir.

11/9/10), 54 So.3d 54, 68. “A judgment, whether it results from the assent of the

parties or is the result of a judicial determination after a trial on the merits, is and

should be accorded sanctity under the law.” Preston Oil Co. v. Transcon. Gas

Pipe Line Corp., 594 So.2d at 913. Pursuant to our review of the applicable law

and facts, we find no error of law, no manifest error, and no abuse of discretion of

the district court in granting UMC’s Motion to Dismiss and in denying the

Burrells’ Ex Parte Motion to Post Bond.

Exception of Insufficiency of Service of Process

In the writ application of the Doctors, as noted above, they seek review of

the district court’s denial of their Exception of Insufficiency of Service of Process.

However, having affirmed the dismissal of the underlying action, we decline to

exercise our supervisory jurisdiction to issue a merely advisory opinion as there is

no relief this Court can now provide to the Doctors. See Cat's Meow, Inc. v. City of

New Orleans Through Dep't of Fin., 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186,

1193 [the Louisiana Supreme Court has held that “courts will not decide abstract,

hypothetical or moot controversies, or render advisory opinions with respect to

such controversies”]. Therefore, we deny the writ application of the Doctors as

moot.

DECREE

7 For the foregoing reasons, the May 10, 2019 judgment, dismissing the

medical malpractice lawsuit of Shaunna B. Burrell and Troy D. Burrell, is

affirmed. Lastly, the writ application of Dr. Lionel A. Branch, Jr., and Dr. Felix

Iran Lopez-Bermudez, is denied as moot.