White v. West Carroll Hosp., Inc.

• Decision Date: 10 April 1992
• Docket Number: No. 23454-CA,23454-CA
• Citation: 598 So.2d 1134
• Court: Court of Appeal of Louisiana — District of US
• Parties: Suzette WHITE, et vir., Plaintiffs-Appellants, v. WEST CARROLL HOSPITAL, INC. and Louisiana Hospital Association Insurance Trust Fund, Defendants-Appellees.

Page 1134

598 So.2d 1134

Suzette WHITE, et vir., Plaintiffs-Appellants, v. WEST CARROLL HOSPITAL, INC. and Louisiana Hospital

Association Insurance Trust Fund, Defendants-Appellees.

No. 23454-CA.

Court of Appeal of Louisiana, Second Circuit.

April 10, 1992.

Writ Granted July 1, 1992.

Fuhrer, Flournoy, Hunter & Morton by John E. Morton, Alexandria, for appellants.

Crawford & Anzelmo by Donald J. Anzelmo, Monroe, for appellees.

Before NORRIS, VICTORY and STEWART, JJ.

STEWART, Judge.

Plaintiffs, Suzette and John White, sued the following defendants for medical malpractice: West Carroll Parish Hospital Inc., Morris Management, Inc., Dr. Joan Brunson, and her insurer, Louisiana Medical Mutual Insurance Company (LAMMICO). Dr. Brunson and LAMMICO filed a peremptory exception of prescription. The trial court maintained the exception in favor of defendants, Dr. Brunson and LAMMICO, and plaintiffs appeal. We affirm.

This appeal presents the following issues: (1) whether this court may consider a prior suit which was not introduced into evidence at the prescription hearing; (2) whether LSA-R.S. 40:1299.41G may be applied retroactively in this case; (3) whether the initial filing of this suit against West Carroll Parish Hospital, Inc. and Morris Management, Inc. interrupted prescription as to the remaining defendants who were subsequently added as alleged solidary obligors; (4) whether the doctrine of contra non valentem applies to this case; and (5) whether the trial court abused its discretion by refusing to allow additional testimony at the hearing, and by making impermissible credibility determinations.

We shall first address the issue of whether this court may consider a prior suit record, because disposition of that issue is determinative of what constitutes the instant record on appeal.

MOTION TO STRIKE

Appellees filed a motion to strike with this court, asserting that, after the record of this suit number 20,060 was transmitted to this court from the Fifth Judicial District Court, counsel for plaintiffs, unilaterally and without court order, attempted to supplement the record with two volumes which contain pleadings and transcripts from a prior suit number 19,599. Appellees request that this court strike the "supplemental record," as well as all references in appellants' brief regarding suit number 19,599.

Appellants filed an "Opposition To Motion To Strike Or Alternatively, Appellants Motion To Formally Supplement The Record On Appeal Or Alternatively, Motion For Remand." In this document, appellants assert that the record was lodged on appeal on several dates, with notice given to all parties, without timely objection by appellees under LSA-C.C.P. art. 2161. Appellants' counsel admits that, when he discovered that the appellate record contained a transcript from suit number 19,599, but did not contain pleadings and other filings from that suit, he brought it to the attention of the clerk of this court and the clerk of the Fifth Judicial District Court. Appellants contend that URCA Rules 2-1.1 through 2-1.17 were violated by the failure to include the remainder of the record in suit number 19,599. In the alternative, appellants request either a "formal supplementation" of the record or a remand for "formal completion" of the record.

One of the two volumes of the "supplemental record" contains a certificate by the clerk of the Fifth Judicial District that the contents are the filings of record in suit number 19,599, as requested by counsel for plaintiffs. The other volume contains a transcript, certified by the court reporter as that of a March 31, 1988 hearing in suit number 19,599. Neither of these two volumes was in evidence before the trial court in the instant suit number 20,060.

LSA-C.C.P. art. 964 provides as follows:

The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter. The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.

The purpose of a motion to strike under art. 964 is to purge pleadings of redundant, immaterial, impertinent, or scandalous matter. Gobin v. Kogel, 388 So.2d 486, 487 (La.App. 4th Cir.1980). The technical name given to a motion is, however, of little importance. See LSA-C.C.P. Article 962; Adams v. New Orleans Blood-Bank, Inc., 343 So.2d 363, 364 (La.App. 4th Cir.1977).

Appellees' motion to strike addresses itself to the supplemental record and all allegations and references, in appellants' brief, to the prior suit number 19,599. It is not simply a motion to clean up authorized pleadings. Thus, art. 964 is not applicable to defendants' motion in this case. See Gobin, supra. Appellants have attempted to unilaterally supplement the record on appeal, and it is this "supplemental record" to which defendants object. We shall treat defendants' motion to strike as a procedural objection to plaintiffs' attempt to supplement the record on appeal. See Adams, supra.

A review of the applicable statutes and jurisprudence indicate that appellees are correct with regard to the supplemental record filed with this court.

LSA-C.C.P. art. 2132 provides that

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

A record can be supplemented after it has been transmitted to the appellate court by stipulation of the parties, by the trial court, or by order of the appellate court only if the evidence was actually introduced into the record. In re Investigation of Smith, 546 So.2d 561 (La.App. 1st Cir.1989), writ denied, 550 So.2d 636 (La.1989); City of Eunice v. CLM Equipment Co., 505 So.2d 976 (La.App. 3d Cir.1987) (emphasis ours).

Faced with an issue similar to that in the instant case, our brethren of the Third Circuit stated that,

In this court, plaintiffs ... seek an order to the trial court to send up, for incorporation as part of the appellate record, the trial court records in the two previous suits. Although some of the documents in the second suit were filed in evidence in this nullity suit, the whole records in those first two suits were not put in evidence in this case. For this court to now receive those records would constitute the taking of evidence and the exercise of original jurisdiction with which we are not vested. See Sec. 10, Art. V, La. Const. of 1974. The proposal by appellant does not come within the language of Code of Civil Procedure Article 2132 which deals with correcting erroneous records or supplementing records which are deficient as to matters actually introduced in evidence. Accordingly, the motion to supplement is denied.

Barber v. Testa, 331 So.2d 139 (La.App. 3d Cir.1976).

An appellate court must render its judgment upon the record on appeal and may not consider evidence which is outside the record. LSA-C.C.P. art. 2164.

Suit number 20,060 is that which is before us on appeal. Plaintiffs did not introduce into evidence the record of the prior suit number 19,599 at the hearing on defendant's exception of prescription. The trial court's Reasons for Judgment include a reference to suit number 19,599 in its chronology of important dates that relate to the exception. However, the trial court does not otherwise mention or address that suit in its legal analysis of the exception. We find no authority which would allow plaintiffs to supplement the record on appeal with transcripts or other filings which were neither in evidence or otherwise a part of the record before the trial court. Because the two volumes in question were not in evidence in the instant suit, we conclude that they are not part of the record before us and we do not consider them in our disposition of this appeal. Appellants' motion to supplement the record on appeal, and motion for remand, are denied.

With regard to the appellees' motion to strike references in the brief about suit number 19,599, we note that

The appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal.

Tranum v. Hebert, 581 So.2d 1023, 1027 (La.App. 1st Cir.1991), writ denied, 584 So.2d 1169 (La.1991) (citations omitted). We therefore do not consider any of the statements or arguments in appellants' brief that refer to facts which are not a part of the instant record.

Having determined that the "supplemental record" of suit number 19,599 is not part of the appellate record, we now turn to the merits of the appeal.

THE APPEAL

Appellants complain that the trial court erred in granting defendants' peremptory exception of prescription because: (1) prescription was interrupted by the suit filed against West Carroll Hospital; (2) prescription was interrupted by the request for review before the Commissioner of Insurance; (3) appellants had no actual or constructive knowledge of Dr. Brunson's allegedly tortious act(s) and/or the relationship between Ms. White's injuries and Dr. Brunson's acts or omissions; (4) appellants were precluded from discovering facts regarding actual or constructive knowledge and concealment by Dr. Brunson. Appellants also contend the trial court erred in making certain credibility determinations without observing the demeanor of the parties and their witnesses. We disagree.

Procedural Facts

The record on appeal reveals the...