Bergeron v. Richardson

• Decision Date: 30 June 2021
• Docket Number: No. 2020-CC-01409,2020-CC-01409
• Parties: Brenda BERGERON, Individually and on Behalf of Her Husband, Donald Bergeron v. Donald RICHARDSON, M.D. and Paul Hubbell, III, M.D.
• Court: Louisiana Supreme Court

320 So.3d 1109

Brenda BERGERON, Individually and on Behalf of Her Husband, Donald Bergeron

v.Donald RICHARDSON, M.D. and Paul Hubbell, III, M.D.

No. 2020-CC-01409

Supreme Court of Louisiana.

June 30, 2021

CRAIN, J.

Plaintiff seeks review of a court of appeal judgment reversing the denial of Defendants’ motion for bond for cost. The trial court found the motion untimely. Applying the plain language of Louisiana Revised Statutes 13:4522, we reverse and reinstate the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Brenda Bergeron, individually and on behalf of her husband, Donald Bergeron, filed a medical malpractice claim against Donald Richardson, M.D. and Paul Hubbell, III, M.D. A medical review panel unanimously found Defendants breached the standard of care. Two of the three panel members found Defendants caused Mr. Bergeron's pain, illness, and death.

Plaintiff then filed wrongful death and survival actions against Defendants.

Nearly six years later, Defendants filed a motion for bond for cost pursuant to Louisiana Revised Statutes 13:4522. Plaintiff opposed the motion on several grounds. First, she contended the motion was untimely under the plain language of the statute. Second, she argued the costs claimed by Defendants were expenses, not actual taxable costs. Finally, she challenged the constitutionality of the statute.

After a hearing, the trial court denied the motion for bond for cost, finding it untimely. The trial court concluded Louisiana Revised Statutes 13:4522 precludes a motion for a cost bond after the defendant's answer is filed. Because the motion was denied, the trial court found the constitutional claim moot.

Defendants’ application for supervisory review to the court of appeal was granted. Finding the bond for cost motion timely, the appeals court reversed, citing Whitson v. American Ice Co. , 164 La. 283, 113 So. 849 (La. 1927) and Jones v. Williams , 191 La. 129, 184 So. 565 (La. 1938), where this court held defendant could demand a cost bond "whenever the necessity might arise." The court of appeal remanded the matter to determine the necessity of a bond. Bergeron v. Richardson , 2020-0286 (La. App. 5 Cir. 11/10/20) (unpublished opinion). We granted this writ to consider the proper interpretation of Louisiana Revised Statutes 13:4522. Bergeron v. Richardson , 2020-01409 (La. 2/17/21), 310 So.3d 558.

DISCUSSION

Louisiana Revised Statutes 13:4522 provides:

The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.

The statute expressly declares that a defendant's demand for security for costs be filed before pleading .¹ Plaintiff argues this temporal condition is clear and unambiguous. Because Defendants answered the petition and litigated the matter for years before filing their motion, plaintiff contends the request is untimely. Conversely, Defendants argue the plain language of the statute does not impose a mandatory requirement to file the motion before filing an answer. Instead, the context of the statute just allows a defendant to file the motion, then wait to answer after the bond is posted. A defendant is not limited or restricted as to when he can file the motion. Rather, a bond can be demanded any time because "the defendant cannot require the plaintiff to give a bond for the payment of such costs as the defendant is concerned in until the necessity therefore arises." Jones , 184 So. 565.

"[T]he starting point for the interpretation of any statute is the language of the statute itself." Dejoie v. Medley , 2008-2223 (La. 5/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision must be applied as written with no further interpretation made in search of the legislature's intent. Id . ; La. Civ.Code art. 9 ; La. R.S. 1:4.

Act 111 of 1926, the predecessor statute to Louisiana Revised Statutes 13:4522, was first addressed by this court in Whitson v. American Ice Co ., 164 La. 283, 113 So. 849 (1927). Act 111 of 1926 provided:

Be it enacted by the Legislature of Louisiana, [t]hat the defendant before pleading in all cases, the Parish of Orleans excepted, may by motion demand and require the plaintiff, third opponent or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the Court such suit, third opposition or intervention, as the case may be, shall be dismissed as in case of non-suit; provided this shall not apply to cases brought in forma pauperis, nor to the state or any political subdivision thereof. [emphasis added].

In Whitson , the defendant, before filing any pleading, sought a bond for cost, which the trial court fixed at $1,000. This court annulled the bond order, finding the defendant failed to prove it actually incurred costs. Without explicitly discussing the timeliness of the bond request, this court found the request premature until actual costs were incurred:

The record in this case, a copy of which was sent up in response to the writ of certiorari, does not show that the defendant was about to incur any expense or liability for fees which might ultimately be taxed as costs against the plaintiff. The only record in that respect is a typewritten ex parte order, apparently prepared by the defendant's attorneys, saying that, on their motion and on their ‘suggesting to the court that plaintiff herein should furnish a bond for costs in this matter, it is ordered that the plaintiff do furnish a bond for costs in this matter in the sum of one thousand ($1,000) dollars.’ The amount is written in with a pen.

It is not the duty of the plaintiff in such case to show that, as far as the defendant is concerned, there is no necessity for a bond for costs, or to show how small a bond will suffice. The burden is on the party demanding the security to show how large a bond is necessary to protect him. 15 C. J. 207, par. 501. Some discretion in that respect is left with the judge, to be exercised, however, with due regard for the actual necessity for a bond and for the interest or motive of the party demanding it.

The order of the district court requiring the plaintiff in this case to furnish security for $1,000 of court costs is annulled, reserving to the defendant the right, on a proper showing, to demand, now or whenever the necessity may arise, security for any court costs which the defendant may actually have to incur or be responsible for in advance of a final judgment condemning either party to pay such costs. The respondent, American Ice Company, is to pay the costs of these supervisory proceedings.

Whitson , 113 So. at 851.

This court again discussed Act 111 of 1926 in Jones . There, the defendant requested a bond for cost after trial began. This court, relying on Whitson , found the request timely:

It was not too late for the defendants in this case to demand the bond for these costs after the trial of the suit on its merits was commenced. The demand for the bond was made promptly when the defendants were informed of the necessity for the bond. On this point the plaintiff cites a per curiam opinion rendered by the Court of Appeal for the First Circuit, in the case of Burnett v. Johnston , 19 La. App. 213, 140 So. 48 [(1932)], where it was held that a defendant could not demand a bond for costs after ‘pleading’. The ruling in that case was never brought to this court for review.

On the face of the record it is doubtful whether the Court of Appeal had jurisdiction to issue the writ of mandamus. The ruling is in conflict with the ruling made by this court in Whitson v. American Ice Co ., 164 La. 283, 113 So. 849. In that case, the court reserved to the defendant the right to demand, whenever the necessity might arise , security for any court costs that the defendant might incur or be obliged to pay in advance of a final judgment condemning either party to pay the costs. The statute declares that a defendant may demand the bond for costs ‘before pleading’. That means that the defendant may, on a sufficient showing, refrain from entering any plea in the case until the bond is furnished. It does not mean that a defendant's right to demand a bond for the payment of such costs as he has an interest in securing is forfeited by his entering any plea in the suit. And the reason for that, as explained in Whitson's Case, is that the defendant cannot require the plaintiff to give a bond for the payment of such costs as the defendant is concerned in until the necessity therefor arises . [italics in original; boldfacing added.]

Jones , 184 So. at 566-67.

Notably, the request for the bond in Whitson was made prior to any pleadings being filed. Whitson , then, did not address the timeliness of the request for security, but the necessity of it, which is a separate and distinct inquiry. Nevertheless, Jones relied on Whitson to hold that the right to demand a bond does not arise until the costs are actually incurred, regardless of when a pleading is filed. In doing so, the court interpreted "before pleading" to be permissive, not restrictive. Relying on that reasoning, Defendants in the instant case argue Section 4522 authorizes them to demand security for cost at any time, even "before pleading." They contend at the outset of litigation, before any discovery and before a final judgment fixing costs, it is difficult, if not impossible, to adequately determine costs the defendant might incur or be obliged to pay; thus, it would be nonsensical to read the statute to impose a premature time restraint on filing the motion.

We recognize a defendant seldom, if ever, incurs significant...