Langston v. Fazal-Ur-Rehman
| Decision Date | 27 November 2019 |
| Docket Number | 19-267 |
| Citation | 286 So.3d 483 |
| Parties | Jan Alfred LANGSTON v. Dr. Syed FAZAL-UR-REHMAN |
| Court | Court of Appeal of Louisiana — District of US |
John Paul Charbonnet, The Glenn Armentor Law Corporation, 300 Stewart Street, Lafayette, LA 70501, (337) 233-1471, COUNSEL FOR PLAINTIFFS/APPELLANTS: Chalyn Renaé Alfred, Kendrick Alfred
Michael W. Adley, Adam P. Gulotta, Judice & Adley, P. O. Drawer 51769, Lafayette, LA 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANT/APPELLEE: Dr. Syed Fazal-Ur-Rehman
Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
The plaintiffs Chalyn Renaé Alfred and Kendrick Alfred appeal from a trial court judgment dismissing their suit with prejudice for failure to post a bond as security for costs pursuant to La.R.S. 13:4522. For the following reasons, we affirm in part, reverse in part, and remand.
The plaintiffs Chalyn Renaé Alfred and Kendrick Alfred are the surviving children of Jan Alfred Langston, the original plaintiff in this matter. On July 27, 2012, Mrs. Langston filed a medical malpractice suit against the defendant Dr. Syed Fazal-Ur-Rehman, claiming malpractice based on the improper placement of a pacemaker on November 23, 2009, which necessitated a surgical revision on December 3, 2009. She claimed that the pertinent dates of the medical malpractice included November 23, 2009, and "every date thereafter " when Dr. Fazal-Ur-Rehman "knew or should have known that the pacemaker he inserted on November 23, 2019 was not placed correctly." This matter was submitted to a medical review panel, which unanimously concluded that Dr. Fazal-Ur-Rehman did not breach the applicable standard of care in his treatment of Mrs. Langston.
On October 13, 2016, Mrs. Langston died of a condition unrelated to the issues raised in the malpractice action. On March 22, 2018, an amended petition was filed naming her children as plaintiffs.1 Thereafter, Dr. Fazal-Ur-Rehman moved to have the plaintiffs post a bond as security for costs pursuant to La.R.S. 13:4522. At the conclusion of the August 13, 2018 hearing on the motion, the trial court ruled in favor of Dr. Fazal-Ur-Rehman and set the bond at $23,165.95, to be posted by the plaintiffs by October 1, 2018. A written judgment setting the cost bond was rendered on September 6, 2018.
On September 10, 2018, the plaintiffs notified the trial court of their intent to seek supervisory writs on the September 6, 2018 judgment, and on September 14, 2018, they filed a motion requesting that it set a date for the filing of their writ, which date was set as October 12, 2018. However, the plaintiffs neither sought writs from this court nor satisfied the bond requirement specified by the September 6, 2018 judgment.
On October 5, 2018, Dr. Fazal-Ur-Rehman moved to dismiss the plaintiffs' malpractice action based on their failure to post the bond. Following a November 26, 2018 hearing, the trial court granted Dr. Fazal-Ur-Rehman's motion. The written judgment granting the motion to dismiss, which was rendered that same date, decreed that the plaintiffs' claims against Dr. Fazal-Ur-Rehman were dismissed with prejudice. It is from this judgment that the plaintiffs appeal.
On appeal, the plaintiffs assign three allegations of error, as follows:
We review the decision of the trial court in this case under an abuse of discretion standard as that court has the discretion to determine both the necessity for a bond to secure the cost of litigation and for fixing the amount of the bond provided for by La.R.S. 13:4522. Clarkston v. Funderburk , 16-681 (La.App. 3 Cir. 2/1/17), 211 So.3d 509, 511, writ denied , 17-403 (La. 4/13/17), 218 So.3d 631.
On the other hand, questions of law, such as the proper interpretation of a statute, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine , 10-1342 (La. 3/15/11), 62 So.3d 36. "On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record." State, Through La. Riverboat Gaming Comm'n v. La. State Police Riverboat Gaming Enforcement Div. , 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d 316, 319. "Appellate review of a question of law involves a determination of whether the lower court's interpretive decision is legally correct." Johnson v. La. Tax Comm'n , 01-964, p. 2 (La.App. 4 Cir. 1/16/02), 807 So.2d 329, 331, writ denied , 02-445 (La. 3/8/02), 811 So.2d 887.
At the outset, we note that the plaintiffs' appeal, in addition to appealing the dismissal of their claim against Dr. Fazal-Ur-Rehman, also appeals the September 6, 2018 judgment ordering them to post security for Dr. Fazal-Ur-Rehman's litigation costs. The September 6, 2016 judgment was an interlocutory judgment, which was not subject to an immediate appeal. La.Code Civ.P. art. 1841. "Although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review by an appellate court when an appealable judgment is rendered in the case." Territo v. Schwegmann Giant Supermarkets, Inc. , 95-257, p. 4 (La.App. 5 Cir. 9/26/95), 662 So.2d 44, 46, writ denied , 95-2584 (La. 12/15/95), 664 So.2d 445. In Babineaux v. University Medical Center , 15-292, pp. 4 (La.App. 3 Cir. 11/4/15), 177 So.3d 1120, 1123 (alteration in original), this court, in discussing an appeal from an interlocutory judgment, stated:
Although the denial of a motion for new trial is generally a non-appealable interlocutory judgment, the court may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. Occidental Properties Ltd. v. Zufle , 14-494 (La.App. 5 Cir. 11/25/14), 165 So.3d 124, writ denied , 14-2685 (La.4/10/15), 163 So.3d 809. Thus, "[w]hen an appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment." Robertson v. Doug Ashy Bldg. Materials, Inc. , 14-141 (La.App. 1 Cir. 12/23/14), 168 So.3d 556, fn. 13 (unpublished opinion) ().
Since the plaintiffs' appeal is taken from the judgment dismissing their claim against Dr. Fazal-Ur-Rehman, it is an unrestricted appeal from a final judgment. Thus, in addition to reviewing the judgment of dismissal, the plaintiffs are also entitled to a review of any prejudicial interlocutory judgments rendered against them, such as the judgment ordering them to post $23,165.19 as security for Dr. Fazal-Ur-Rehman's litigation costs. Accordingly, we find this issue is properly before us on appeal.
The plaintiffs assignments of error address the propriety of the trial court in the dismissal of their case with prejudice as a result of their failure to post the bond as ordered, in granting Dr. Fazal-Ur-Rehman's motion requiring them to post a bond for his court and litigation costs in a medical malpractice case, and finally the propriety of the amount of the bond set therefore. We address these assignments of error out of order.
In their second assignment of error, the plaintiffs argue that it was error for the trial court to apply La.R.S.13:4522 in this matter because subsequent to 2003, La.R.S. 40:1231.8(I)(2)(c)2 was enacted, which provided for a different type of bond in medical malpractice actions. We address this issue first, as a resolution on this issue in the plaintiffs' favor would result in a reversal of the trial court judgment in full.
Louisiana Revised Statutes 13:4522 provides for the cost bond at issue here and states as follows:
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 Louisiana Medical Malpractice Act (LMMA) in La.R.S. 40:1231.8(I)(2)(a) and (b) provides that "[t]he costs of the medical review panel shall be paid by the health care provider if the opinion of the medical review panel is in favor of said defendant health care provider[,]" but that "[t]he claimant shall pay the costs of the medical review panel if the opinion of the medical review panel is in favor of the claimant." The costs of the medical review panel are set out in La.R.S. 40:1231.8 I(1)(a) and (b) as follows:
To continue reading
Request your trial
- State v. Westbrook, 19-237
-
Aziz v. Burnell
...interlocutory in nature; thus, we should review that judgment as part of the present unrestricted appeal. Langston v. Fazal-Ur-Rehman , 19-267 (La.App. 3 Cir. 11/27/19), 286 So.3d 483. While we agree that the judgment was an interlocutory judgment that could be reviewed as part of the prese......