Olson v. Louisiana Medical Mutual Insurance Co.
Olson v. Louisiana Medical Mutual Insurance Co.
Opinion of the Court
|i The plaintiff, Laureen Olson, appeals from a judgment of the trial court granting an exception of lis pendens in favor of the defendants, Dr. Paul M. Toce, Jr.; the doctor’s medical corporation, Dr. Paul M. Toce, Jr., A Professional Medical Corporation; and their liability insurer, Louisiana Medical Mutual Insurance Company (Louisiana Medical).
DISCUSSION OF THE RECORD
The April 9, 2013 petition
The three defendants responded to Ms. Olson’s petition by filing a number of exceptions, including the peremptory exception of lis pendens. The basis for the defendants’ lis pendens exception was the existence of an earlier suit filed by Ms. Olson against the same defendants, bearing a different docket number and pending in another division of the Fifteenth Judicial District Court.
After a May 28, 2013 hearing on the exception, the trial court initially informed the litigants that the two suits would be consolidated. However, when presented by the defendants with a judgment to that effect, the trial court struck through the judgment
The next day, Ms. Olson filed a written objection to the modified judgment, and in doing so, referred to a telephone conference between counsel for both sides of the litigation and the trial court, which she claims occurred on the same day as the trial court’s action in executing the modified judgment. The pleading asserts that the trial court instigated the telephone conference and informed both sides in the litigation that the trial judge of the other division did not want the matters consolidated, and, as a consequence, the trial court was rescinding its order of consolidation, sustaining the exception of lis pen-dens, and dismissing the April 9, 2013 suit. According to the pleading, Ms. Olson’s counsel objected to the lack of notice of the telephone conference, requested that a court reporter be summoned to |smake a record of the proceedings, and objected to the grant of the exception. The trial court denied both objections and the request that the conference be recorded.
OPINION
With regard to the exception of lis pen-dens, La.Code Civ.P. art. 531 provides:
When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.
Additionally, La.Code Civ.P. art. 930 states, “On the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon,” The evidentiary burden associated with such an | ¿exception was explained in Lexington Insurance Co. v. Tasch, Inc., 12-339, pp. 8-9 (La.App. 5 Cir. 11/27/12), 105 So.3d 950, 955, wherein that court stated:
When a party raises an exception or motion that must be proven, it is that party’s burden to present evidence establishing the claims made therein. See La. C.C.P. arts. 930, 931, 963. The exceptions to that rule are the peremptory exception of no cause of action and the motion for summary judgment.
An exception of no cause of action must be tried on the face of the petition alone. La. C.C.P. art. 931; Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114,118.
A motion for summary judgment is decided on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” La. C.C.P. art. 966(B). Summary judgment may be granted only if the documents in the record show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Id.
Other defenses, however, whether raised by exception or motion or in other pleadings, must be proven by evidence introduced at a hearing, where the trial court performs its function of weighing evidence, making credibility determinations, and making factual findings. Scheuermann v. Cadillac of Metairie, Inc., 11-1149, pp. 5-7 (La.App. 5 Cir. 5/31/12), 97 So.3d 423, 427.
Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 2007-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Id.; La. C.C.P. art. 2164.
DISPOSITION
We reverse the trial court judgment granting the declinatory exception of lis pendens and dismissing the claims of Lau-reen Olson against Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., A Professional Medical Corporation, and Louisiana Medical Mutual Insurance Company; render judgment denying the exception; and remand the matter to the trial court for further proceedings. We assess all costs of this appeal to the defendants, Dr. Paul M. Toce, Jr., Dr. Paul M. Toce, Jr., A Professional Medical Corporation, and Louisiana Medical Mutual Insurance Company.
REVERSED; RENDERED; AND REMANDED.
. At a point later in the litigation, the State of Louisiana filed an intervention based on a claim by Ms. Olson in her pleadings that the Louisiana Medical Malpractice Act is unconstitutional, but that claim is not before us, and
. The petition was entitled, "Petition for Damages Resulting from Medical Malpractice and Other Acts of Negligence Not Covered by the Louisiana Medical Malpractice Act, and From Intentional Acts or Other Acts[.]”
. The petition alleges that Ms. Olson suffers from bipolar disorder, depression, anxiety, and other illnesses and that she has issues of abandonment, severe self-esteem problems, and has experienced suicidal tendencies.
.The proposed judgment stated that the exception of lis pendens would be granted, but only to the extent of transferring the litigation to be consolidated with other pending suit, and would be denied in all other respects. The judgment further provided that the other exceptions filed were deferred to the other division of the court for consideration.
. Ms. Olson references a second suit in her petition, which she states was filed by Dr. Toce for the purpose of conducting discovery and extending the deadline for completion of the medical review panel deliberations.
Reference
- Full Case Name
- Laureen OLSON v. LOUISIANA MEDICAL MUTUAL INSURANCE CO.
- Cited By
- 2 cases
- Status
- Published