Spencer v. Children's Hosp.

• Decision Date: 01 September 1982
• Docket Number: No. 12924,12924
• Citation: 419 So.2d 1307
• Parties: Rowena SPENCER, M.D. v. CHILDREN'S HOSPITAL, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1307

419 So.2d 1307

Rowena SPENCER, M.D. v. CHILDREN'S HOSPITAL, et al.

No. 12924.

Court of Appeal of Louisiana,

Fourth Circuit.

Sept. 1, 1982.

Rehearing Denied Oct. 22, 1982.

John R. Martzell, A. D. Freeman, New Orleans, for plaintiff-appellant.

A. R. Christovich, Jr., New Orleans, Corinne A. Morrison, Peter T. Dazzio, W. Shelby McKenzie, Nancy Tyler, Baton Rouge, Gordon F. Wilson, Jr., New Orleans, for defendants-appellees.

Before WARD, WILLIAMS and BYRNES, JJ.

BYRNES, Judge.

Dr. Rowena Spencer, Plaintiff-Appellant herein, appeals from a judgment of the District Court dismissing her suit with prejudice. The factual context in which this appeal arises is as follows:

Appellant is a pediatric surgeon of un-questioned skill. She is one of only two Board Certified Pediatric Surgeons in Louisiana. She has practiced in association with a number of hospitals throughout the state. In July, 1977, Dr. Spencer was suspended from the exercise of staff privileges at Childrens Hospital in New Orleans, Louisiana. One reason for this suspension was a threat by Dr. Spencer to finance a law suit against the Hospital on behalf of one of her patients whom she felt had been negligently cared for by the hospital staff. Another, more important reason, was Dr. Spencer's inability to work with members of the staff, particularly nurses. At the time of her suspension, 35% of the nursing staff was threatening to resign due to Dr. Spencer's abusive treatment.

Several days later the suspension was lifted on the condition that Dr. Spencer take a two month sabbatical and meet with an ad hoc committee of staff members to negotiate "conditions under which you will resume your practice at Children's Hospital". This agreement, known as the Cain agreement, was the result of several hours of 'collective bargaining' between Dr. Spencer and James Cain, then President of the Board of Trustees of the Hospital. When Dr. Spencer met with the ad hoc committee in October she refused to consider any conditions. She contended that the Cain agreement merely required her to meet with the committee as the sole condition for her return to the staff. Despite several subsequent meetings no agreement was ever reached.

During this period Dr. Spencer made the routine annual application for staff privileges which is required at Children's Hospital and many other hospitals around the state. Her application was understandably denied, given the continued impasse which existed between Dr. Spencer and the administration and staff of the hospital.

Dr. Spencer then filed suit for damages and a preliminary injunction prohibiting Children's Hospital from denying her staff privileges. The trial on Dr. Spencer's petition was held in January, 1978. This proceeding was exceedingly thorough, taking seven full trial days. The trial court denied the plaintiff's petition in a strongly worded opinion which characterized Dr. Spencer's actions in dealing with the hospital staff as "unreasonable, over-bearing, extremely demanding, offensive, rude, insulting and un-warranted." Dr. Spencer appealed, and this court affirmed in another strongly worded opinion which concluded that "any harm plaintiff has suffered appears to have been entirely her own doing." This court further found that, "Dr. Spencer does not have staff privileges at Children's Hospital because she voluntarily left, pursuant to the Cain agreement, which stated she could not return until conditions were agreed upon. She has never agreed to anything ... Dr. Spencer was not un-fairly, illegally, or un-constitutionaly dealt with by the hospital or its staff. She simply has not discharged the obligation which she voluntarily accepted." (referring to the Cain agreement)

This cause came to trial on the merits on January 14, 1980. By January 31, 1980, Dr. Spencer had presented all of her evidence with the exception of her own testimony and that of her C.P.A. Court was adjourned early the day of the 31st, on the suggestion of Dr. Spencer's counsel, to allow the parties one final opportunity to reach a compromise. While there is some conflict as to what occurred thereafter, this much is clear; Dr. Spencer absolutely refused to compromise her claim despite her own counsel's recommendation that such a move would be in her best interest. At this point Dr. Spencer became very upset. She returned home and took a number of pills in an apparent attempt on her life.

When Dr. Spencer failed to appear in court the next morning her counsel informed the court that she was "ill in bed", and requested a continuance until the following Monday, February 4, 1980, which was granted. When Dr. Spencer once again failed to appear, the trial judge held a conference in chambers to ascertain the reason for Dr. Spencer's continued absence. At that time it was made known to the court that Dr. Spencer had attempted suicide and would be unavailable for an indefinite time. When it became clear that Dr. Spencer would not be able to appear for some time counsel for the defense moved that Dr. Spencer's prior deposition and her testimony from the injunction proceeding be used in lieu of her present testimony. Alternatively, defendant's counsel moved for a continuance. Dr. Spencer's counsel vigorously opposed both motions and moved instead for a mistrial.

Upon discovery of the attempted suicide the trial judge dismissed Dr. Spencer's suit, with prejudice, on the grounds of her deliberate non-appearance. Counsel for the plaintiff immediately applied for writs to this court. We annulled the trial court's judgment and remanded for an evidentiary hearing on the circumstances surrounding Dr. Spencer's non-appearance. The depositions of Dr. Spencer and Dr. Winn, her physician, were taken in anticipation of this hearing. After conducting the hearing ordered by this court the trial judge reinstated his original opinion with the following reasons: "Considering the depositions and the testimony as a whole the court is of the opinion that the attempt was deliberate, was made with the definite intent not to continue the trial."

We affirm the results reached by the trial judge but find error in his reasoning. To begin with, we must note that the trial judge is without power to dismiss a case on his own motion. Code of Civil Procedure Articles 1671 and 1672 deal with dismissals. Art. 1671 covers voluntary dismissal and reads as follows:

"A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice".

The statute is clear that, while the judge has discretion in some cases to dismiss with or without prejudice, he must be acting on "application of the plaintiff". Art. 1672 deals with involuntary dismissals and states:

"A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for the trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice."

Once again the legislative intent is clear; the judge may not act on his own motion, but only "upon application of either party".

These limitations are analogous to those applied to directed verdicts in that the court may not act on its own motion but only on motion of one of the parties. Pete v. NOPSI, 402 So.2d 807 (La.App. 4th Cir. 1982); Scholegel v. Robinson, 416 So.2d 366 (La.App. 4th Cir.), rendered 1982).

The plaintiff in this case argues that the trial judge had no such motion before him. He did, however, have before him the plaintiff's motion for a 'mistrial'. This motion does not exist as a procedural device in civil cases in Louisiana. There is no mention of its use in the Code of Civil Procedure. We will not, however, assume that counsel for the plaintiff was making a meaningless motion. Code of Civil Procedure Art. 865 provides that:

"Every pleading shall be so construed as to do substantial justice".

The jurisprudence of this state has consistently held that the characterization of a pleading by it's author is not controlling. Pleadings are governed by their substance and not by their caption. Higdon v. Higdon, 385 So.2d 396, (La.App. 1st Cir. 1980); Louisiana Live Stock Sanitary Board v. Johnson, 372 So.2d 585, (La.App. 3d Cir. 1979); Weber v. Bon Marche Pharmacy, 378 So.2d 520, (La.App. 4th Cir. 1979); Cvitanovich v. Sorli, 347 So.2d 1204, (La.App. 1st Cir. 1977); Polk v. Hunt, 282 So.2d 614, (La.App. 1st Cir. 1973); Griffith v. Metry Cab Service, 266 So.2d 739, (La.App. 4th Cir. 1972); Moore v. Shell Oil Co., 228 So.2d 205, (La.App. 3d Cir. 1969); Succession of Smith, 247 La. 921, 175 So.2d 269, (1965)).

The trial judge has a duty to recognize the true nature of a pleading and treat it accordingly. C.C.P. Articles 854, 862, 865, Louisiana Live Stock Sanitary Board v. Johnson, supra, at 591. Fremin-Smith Services Inc., v. Saint Charles Parish Water District No. 1, 300 So.2d 514, (La.App. 4th Cir. 1974)

In this case the trial judge should have treated plaintiff's motion for a mistrial as a motion to dismiss without prejudice under C.C.P. 1671. Plaintiff's counsel opposed defendant's motion for a continuance, so this apparently was not the true object of his motion. Nor could counsel have intended to move for a new trial. That device is reserved for post-judgment pre-appeal situations. In the instant case a final judgment had not been signed when the motion was made and thus a motion for new trial would have been premature. C.C.P. Art. 1971 et seq. Borderlon v. Dauzat, 389 So.2d 820, (La.App. 3d Cir. 1980). Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976)

The substance of plaintiff's motion clearly shows a desire to begin the trial anew at an undetermined time in the future when p...