Lassere v. STATE, DEPT. OF HEALTH & HOSP., OFFICE OF PUBLIC HEALTHLassere v. STATE, DEPT. OF HEALTH & HOSP., OFFICE OF PUBLIC HEALTH
Caroline Norton, Assistant Attorney General, New Orleans, for Defendants/Appellees, State of Louisiana, Department of Health & Hospitals, Office of Public Health, and Dr. Darren Gannuch.
WHIPPLE, J.
Plaintiff, Gaspard Lassere, appeals from the trial court‘s judgment granting the motion for summary judgment of defendants, the State of Louisiana, Department of Health and Hospitals, Office of Public Health (“DHH“), and Dr. Darren Gannuch. For the following reasons, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
On January 9, 1996, plaintiff, the widower of Michelle Lassere, filed the instant wrongful death action individually and on behalf of his three minor children, Brandon, Gabriel and Christyn, against DHH, Dr. Victor Gonzales and Dr. Darren Gannuch. In his petition, plaintiff claimed that his wife was prematurely discharged from Leonard J. Chabert Medical Center in Houma, Louisiana, after having been diagnosed as having a severe mental disorder with suicidal tendencies. According to the petition, five days after her discharge, Michelle Lassere committed suicide.
Trial in this matter was eventually set for September 27, 28 and 29, 1999. However, on August 25, 1999, DHH and Dr. Gannuch filed a motion for summary judgment, contending that they were entitled to judgment in their favor as a matter of law because plaintiff was unable to establish through expert testimony that defendants had deviated from the standard of care in their treatment of Mrs. Lassere.1 The trial court scheduled a hearing on the motion for summary judgment for September 10, 1999, seventeen days prior to the scheduled trial date. However, plaintiff (through counsel) was not served with the notice of the hearing on the motion for summary judgment until September 9, 1999, the day before the scheduled hearing.
Counsel for plaintiff appeared at the September 10, 1999, and objected to the hearing, noting that plaintiff was entitled to ten days notice of the hearing. The court then instructed the parties to submit the motion for summary judgment on memoranda and ordered plaintiff‘s counsel to file his memorandum in opposition to the summary judgment by September 17, 1999, ten days before the scheduled trial. However, plaintiff‘s counsel reiterated that he was objecting to the procedure and further noted that a ruling on a motion for summary judgment could not be rendered less than ten days prior to a scheduled trial date.
Nonetheless, in accordance with the court‘s order, plaintiffs counsel filed an opposition to the motion for summary judgment on September 17, 1999, and the trial court rendered judgment, granting defendants’ motion for summary judgment on September 22, 1999, only five days before the scheduled trial date.
From this judgment, plaintiff appeals, contending that the trial court erred in: (1) granting a motion for summary judgment
DISCUSSION
As set forth in his first and second assignments of error, plaintiff avers that the trial court erred in granting summary judgment where the notice requirements and time limitations of
Louisiana Code of Civil Procedure article 966 sets out the requirements for a motion for summary judgment and dictates time limitations regarding certain aspects of the summary judgment procedure. Paragraph B of the article provides that the required service of the motion for summary judgment and supporting affidavits be made at least ten days prior to the time specified for the hearing on the motion.
With regard to the notice requirement of
In the instant case, the trial court implicitly found in written reasons for judgment that plaintiff had waived any objection to the ten-day notice requirement of art. 966(B) in that counsel for plaintiff “agreed to and did submit the issue on a memorandum when he filed his memorandum into the record September 17, 1999.” However, a review of the transcript of the proceedings on September 10, 1999, the scheduled hearing date, demonstrates that plaintiffs counsel continually maintained his objection to the lack of ten-day notice, as follows:
MR. LABAT:
Judge, everything Miss Norton—I don‘t blame her. I told her on the phone yesterday, I was downtown Houma yesterday, my secretary pages me 911 over here, she says we were served for a hearing.
* * * MR. LABAT:
Judge, the problem we‘re going to have is, it‘s got [to] be ten-day notice from yesterday. Actually today is No. 1. Then we‘re getting within ten days of a trial, which the Statute doesn‘t allow us to do that. I just think we got to go to Court.
* * *
THE COURT (addressing defense counsel):
Do you want to submit the summary judgment on memorandum, so you don‘t have to come back to Court, and I will require his memorandum be sent to the Court by a certain time?
MISS NORTON:
That‘s fine.
MR. LABAT:
I‘m still objecting. I don‘t want to lose my right to the ten days.
* * *
THE COURT:
Let me have the memo by the 17th, your memo in opposition.
MR. LABAT:
And Judge, reserving my right to the ten days. I don‘t want to be in the situation where I‘m—
THE COURT:
I‘m not reserving any right to ten days. I‘m telling you that I‘ll take it by memo rather than oral argument.
MR. LABAT:
Okay.
MISS NORTON:
And the 17th is ten days from—you were served on the 8th.
MR. LABAT:
But it‘s not ten days from the trial. That‘s what I‘m saying, Caroline.
It is clear from this colloquy that plaintiff‘s counsel continued to object to the lack of adequate notice pursuant to
Moreover, even if the ten-day period afforded plaintiff‘s counsel to submit any opposition to the motion could be deemed to satisfy the requirements of
Paragraph D of
The time limitation set forth in
In the instant case, the parties do not dispute that plaintiff‘s counsel clearly bore no responsibility for the delays in his being served with the motion or for the corresponding delays in the trial court‘s rendition of judgment only five days before the scheduled trial dates. The particular motion for summary judgment at issue was not filed until approximately one month before the scheduled trial date. Moreover, defense counsel acknowledged at the September 10 hearing that she had contacted the clerk‘s office the day before the September 10 scheduled hearing to determine whether service had been perfected upon her opponent. Apparently, her call prompted the eventual service of the motion on plaintiff‘s counsel that afternoon, less than twenty-four hours before the scheduled hearing. Because of the lack of ten-day notice to plaintiff‘s counsel, the trial court did not conduct a substantive hearing on the motion on September 10, but, instead, ordered plaintiff‘s counsel to oppose the motion in memorandum form by September 17, causing the resulting delay in rendition of judgment. These delays in the proceedings cannot be attributed to plaintiff‘s counsel.
Moreover, we are unconvinced by the suggestion that we should “weigh the prejudice” to defendants when plaintiff will not be able to meet his evidentiary burden at trial, in order to determine whether the time limitations set forth in
Considering the procedural irregularities outlined above and the mandatory language of
Further, for the above reasons, we pretermit the issues raised by plaintiffs third assignment of error.
CONCLUSION
For the above and foregoing reasons, the September 22, 1999 judgment of the trial court granting defendants’ motion for
VACATED AND REMANDED.