IN RE: THE MEDICAL REVIEW PANEL PROCEEDING OF LEON CLARK (2025)

Plaintiff, Leon Clark, filed a motion to annul two judgments, one granting defendants’ motions to compel discovery responses and another granting defendants’ joint motion for involuntary dismissal due to Clark's failure to respond to discovery requests as ordered by the first judgment. Clark alleged both judgments were obtained by ill practices and should be annulled pursuant to La. C.C.P. art. 2004(A). On appeal, Clark urges the judgment granting the joint motion for dismissal is an absolute nullity pursuant to La. C.C.P. art. 2002(A). After review, we affirm.

FACTS AND PROCEDURAL HISTORY

The following facts are established by the record, which includes the affidavits of Leon Clark and his mother, Lena Clark, as well as testimony from Ms. Clark presented during the hearing on Clark's motion to annul.¹

In May 2021, Leon Clark, pro se, requested a medical review panel to consider his claims of medical malpractice against Ochsner Bayou, LLC d/b/a St. Anne General Hospital ² and Dr. Michael Blanchard (sometimes collectively referred to as “defendants”). Clark provided 2045 Sierra Vista Drive, Baton Rouge, Louisiana as his address on the request.

Motions to Compel

In February 2022, Ochsner filed a petition to institute discovery in the Seventeenth Judicial District Court, seeking to obtain discovery related to Mr. Clark's claim. On the same date, Ochsner also filed a motion to compel discovery responses, asserting that discovery requests propounded on Clark in October 2021, remained unanswered. The evidence attached to the motion established that discovery requests were sent to Clark, via certified mail, at his Baton Rouge address in October 2021 and via FedEx in December 2021.

Clark's mother called Ochsner's counsel on January 19, 2022 to provide an additional mailing address and telephone number for Clark. On January 20, 2022, Ochsner forwarded its initial discovery requests to Clark at an address on Grinage St. in Houma, Louisiana, noting it was “recently informed of this address as an additional contact address[ ]” for Clark. These requests were also sent via FedEx to Clark's Baton Rouge address. The record contains delivery confirmations for the December 2021 FedEx delivery and multiple January 2022 FedEx deliveries to Clark's Baton Rouge address, as well as confirmations for two January 2022 FedEx deliveries to Clark's Houma address. However, no signature was required or obtained for these deliveries.

Dr. Blanchard also filed a motion to compel in March 2022, asserting that discovery requests propounded on Clark in January 2022 remained unanswered. Despite multiple efforts, neither Ochsner nor Dr. Blanchard were able to speak to Clark to hold a discovery conference pursuant to Louisiana District Court Rules, Rule 10.1, and all discovery requests directed to Clark remained unanswered. A hearing on both motions to compel was set on June 2, 2022. Clark was served with notice of this hearing via private process server at the Houma address on May 11, 2022 ³

Shortly thereafter, on May 26, 2022, Clark was arrested and remained in the custody of the Terrebonne Parish Sheriff's Office until July 8, 2022. Aware of the upcoming hearing on the motions to compel, Clark asked his mother to contact defense counsel to advise that he was incarcerated and would be unable to attend the hearing on June 2, 2022. Ms. Clark testified (and attested) that, prior to the hearing date, she advised defense counsel or a member of her staff that Clark was incarcerated and would be unable to attend the hearing and “requested that the hearing be continued to another day.”⁴ Both Clark and his mother believed the hearing would be continued.

Defense counsel had a different understanding. In an email dated June 16, 2022, counsel advised her client, Dr. Blanchard, of her pre-hearing conversation with Ms. Clark. According to counsel, Ms. Clark advised that Clark had “checked himself into a behavioral health hospital” in Baton Rouge the day after being served with notice of the June 2, 2022 hearing. Counsel advised Ms. Clark that the hearing was “not for another 10 days” and that perhaps Clark “would be out of the hospital[.]”⁵ However, counsel advised Ms. Clark, “either way someone needed to show up on [Clark's] behalf.”

Neither Clark nor anyone on his behalf attended the hearing on the motions to compel, and the trial court orally granted the motions on June 2, 2022. A written judgment signed on July 19, 2022 memorialized this ruling, ordered Clark to respond to defendants’ discovery requests within 30 days of June 2, 2022, and awarded defendants $500.00 in attorney fees and all court costs associated with the filing of the motions to compel.

Joint Motion for Involuntary Dismissal

In August 2022, Ochsner and Dr. Blanchard filed a joint motion for involuntary dismissal, seeking to dismiss all allegations against them in Clark's medical malpractice complaint due to his failure to cooperate in the discovery process. Defendants asserted that Clark “completely disregarded” the trial court's order (i.e., the July 19, 2022 judgment) to respond to the discovery requests.⁶

A hearing on the joint motion for involuntary dismissal was set on October 5, 2022. The order setting the hearing stated that counsel would serve notice via La. C.C.P. art. 1313, and it does not appear the clerk's office issued notice of hearing directly to Clark. According to counsel's affidavit of service, Clark was served with a copy of the citation, joint motion for involuntary dismissal, and rule to show cause via commercial courier at the address he provided to the medical review panel (Baton Rouge). The FedEx delivery was signed for by “R.Ronnie” at Clark's Baton Rouge address. The same documents were also sent to Clark's Houma address via FedEx; however, there is no evidence regarding acceptance of delivery/acceptance at the address in Houma.

A contradictory hearing on the joint motion for involuntary dismissal was held on October 5, 2022. Counsel for both defendants were in attendance; however, Clark was not. The trial court signed a judgment also on October 5, 2022, granting the joint motion for involuntary dismissal and dismissing Clark's medical malpractice complaint (PCF No: 2021-00417) with prejudice.

Motion to Annul

On October 3, 2023, Clark, appearing through counsel, filed a motion to annul the June 2, 2022 judgment, referring to the judgment granting the motions to compel, and the October 5, 2022 judgment. To avoid confusion, we refer to the judgment granting the motions to compel as the “July 19, 2022 judgment.” Clark moved to annul both judgments pursuant to La. C.C.P. art. 2004 for ill practices. Specifically, Clark alleged that he was unrepresented and in jail on June 2, 2022, the date of the hearing on the motions to compel. Clark asserted that defense counsel failed to advise the trial court of his whereabouts (jail) and inability to attend - an alleged ill practice. Clark contended the July 19, 2022 judgment was not served on him, and he was not otherwise provided a copy.

Regarding the October 5, 2022 judgment, Clark asserted defendants failed to serve him with notice of the hearing on the motion for involuntary dismissal at his last known address in Houma – another alleged ill practice. Clark asserted that defendants incorrectly sent notice to the Baton Rouge address. According to Clark, defendants should have been aware that Houma was his last known address after successfully serving him with pleadings at that address through a private process server. Finally, Clark asserted he did not become aware of the October 5, 2022 judgment granting the joint motion for involuntary dismissal until sometime “earlier” in 2023.

Both defendants opposed the motion to annul and provided documentation of their respective attempts to serve Clark with pertinent motions, judgments, and notices. Defendants denied the allegation that counsel engaged in ill practices, and Dr. Blanchard asserted that Clark's request to annul the July 19, 2022 judgment was “peremptorily barred under La. C.C.P. art. 2004.”

A hearing on the motion to annul was held on November 30, 2023. After considering the evidence, testimony, and argument of counsel, the trial court concluded that Clark's claims regarding the June 2, 2022 hearing (i.e. the July 19, 2022 judgment) were perempted and that no basis existed to annul the October 5, 2022 judgment. A written judgment denying Clark's motion to annul was signed on January 8, 2024.

DISCUSSION

Clark filed this appeal, raising three assignments of error. Specifically, Clark contends the trial court erred in finding his claim to nullify the July 19, 2022 judgment was perempted under La. C.C.P. art. 2004 and erred by failing to annul the judgment for ill practices under La. C.C.P. art. 2004. Clark further asserts the trial court erred by not finding the October 5, 2022 judgment was absolutely null under La. C.C.P. art. 2002.

Whether a trial court properly denied the motion to annul is a question of law, which we review de novo. See Brooks v. Shamrock Construction Co., Inc., 18-226 (La. App. 5th Cir. 12/19/18), 262 So.3d 423, 427.

July 19, 2022 Judgment on Motions to Compel

The judgment on appeal states that Clark's motion to annul “is DENIED, and all claims and allegations remain dismissed with prejudice against [d]efendants[.]” (Emphasis original.) The judgment is silent as to any finding of peremption pursuant to La. C.C.P. art. 2004. Although the trial court orally assigned peremption as the reason for denying Clark's motion to annul the July 19, 2022 judgment, this court reviews judgments, not reasons for judgment, and may affirm the judgment on appeal for reasons different than those assigned by the trial court. See Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572.⁷

Louisiana Code of Civil Procedure article 2004(A) states that “[a] final judgment obtained by fraud or ill practices may be annulled.” “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” La. C.C.P. art. 2004(B). By its clear terms, Article 2004 applies to final judgments, not interlocutory judgments like the July 19, 2022 judgment granting the motions to compel. See La. C.C.P. art. 1841; Smith v. Dirt Cheap of Louisiana, LLC, 2023-0808 (La App. 1st Cir. 3/22/24), 387 So.3d 662, 665 (“a judgment concerning an order compelling discovery is interlocutory”); O'Dwyer v. Edwards, 2008-1492 (La. App. 4th Cir. 6/10/09), 15 So.3d 308, 310 n.2 (“Only final judgments can be nullified pursuant to La. C.C.P. art. 2004. Therefore, as a stay of discovery is an interlocutory judgment, a petition for nullity is the improper procedural vehicle to contest its validity.”); and Winston v. Martin, 34,424 (La. App. 2d Cir. 9/21/00), 801 So.2d 389, 391 (finding the judgment at issue was an interlocutory judgment not subject to a nullity action pursuant to La. C.C.P. arts. 2001, et seq). Thus, the parties’ reliance on Article 2004 is misplaced.

Additionally, the record establishes that Clark was personally served with notice of the hearing on both motions to compel discovery via private process server. The June 2, 2022 oral interlocutory ruling was reduced to writing pursuant to La. C.C.P. art. 1914(B); therefore, the clerk of court was required by Article 1914(B) to mail notice of judgment to each party. Pursuant to this mandate, the clerk issued notice of the July 19, 2022 judgment on July 22, 2022. Although the notice in the record was addressed to defense counsel, it contains the clerk's stamp, certifying that notice was mailed to “the litigants, if any, who are not represented by counsel, which notices were addressed to them, respectively, at their last known address, with postage prepaid.”

Clark's statement alone that he did not receive the clerk's notice is insufficient to rebut the record. See Williams v. Damico, 2008-0914 (La. App. 1st Cir. 5/8/09), 2009 WL 1270393, *1 n.4 (unpublished) (the clerk of court's certification of notice of mailing is presumed to be correct unless refuted, amended, or corrected, at a proper proceeding, when it is shown to be in error). In most instances, an assertion that notice was not received is insufficient to refute the record when it contains evidence that notice of judgment was mailed. See also Beagle v. Beagle, 95-168 (La. App. 3d Cir. 5/31/95), 657 So.2d 422, 423 (finding counsel's attestation that he did not receive notice was insufficient to defeat the clerk's certificate of mailing). Therefore, the trial court properly denied the motion to annul as to the July 19, 2022 judgment.

October 5, 2022 Judgment on Joint Motion for Involuntary Dismissal

Unlike the July 19, 2022 judgment, the October 5, 2022 judgment granting the motion for involuntary dismissal is a final judgment, which may be annulled pursuant to La. C.C.P. arts. 2002 and 2004. See La. C.C.P. art. 1841.

Clark asserted that defense counsel engaged in an ill practice by purportedly failing to notify the court of his whereabouts during the June 2, 2022 hearing on the motions to compel. To the extent this assertion applies to the October 5, 2022 judgment, we find no evidence of ill practice. See La. C.C.P. art. 2004(A). At most, the record establishes a misunderstanding between counsel and Ms. Clark as to Clark's availability and whether the hearing would be continued. See Wright v. Louisiana Power & Light, 2006-1181 (La. 3/9/07), 951 So.2d 1058, 1067 (discussing conduct encompassed within the term “ill practice” for purposes of Article 2004(A)).

Clark expressly moved to annul the October 5, 2022 judgment pursuant to La. C.C.P. art. 2004 on the basis that defendants did not mail a copy of the notice of the October 5, 2022 hearing on the motion for involuntary dismissal to his last known address in Houma. Clark asserted this was an ill practice and a violation of La. C.C.P. art. 1313, which pertinently states:

A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:

(1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.

(2) Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.

* * * *

C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314, by actual delivery by a commercial courier, or by emailing the document to the email address designated by counsel or the party. Service by electronic means is complete upon transmission, provided that the sender receives an electronic confirmation of delivery.

D. For purposes of this Article, a “commercial courier” is any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type, and that:

(1) Acquires a signed receipt from the addressee, or the addressee's agent, of the letter or parcel upon completion of delivery.

(2) Has no direct or indirect interest in the outcome of the matter to which the letter or parcel concerns.

Clark reasserts these arguments on appeal, but asserts for the first time that the October 5, 2022 judgment is an absolute nullity pursuant to La. C.C.P. art. 2002, which pertinently provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law. Louisiana Code of Civil Procedure article 2002 has been interpreted to also provide for a nullity action by a defendant-in-rule, as Clark was in this case. See Richard v. Williams, 2023-0911 (La. App. 1st Cir. 4/30/24), 390 So.3d 885, 889.

Generally, an appellant is precluded from raising an issue for the first time on appeal. See State v. Kee Food, Inc., 2019-0795 (La. App. 1st Cir. 5/11/20), 303 So.3d 672, 677, writ denied, 2020-00716 (La. 9/29/20), 301 So.3d 1197. However, Article 2002(B) pertinently provides than “an action to annul a judgment on the grounds listed in this Article may be brought at any time.”⁸ A null judgment is never valid, and any proceedings conducted under the authority of a null judgment are absolutely void. If a judgment is an absolute nullity, such nullity may be invoked by anyone against whom it is interposed and whenever and wherever it is asserted. Succession of Crute v. Crute, 2016-0836 (La. App. 1st Cir. 8/30/17), 226 So.3d 1161, 1177. Additionally, although Clark's reliance on Article 2002 is new, his arguments regarding lack of service remain unchanged. Thus, defendants were not surprised by a new argument on appeal, and they do not challenge Clark's reliance on Article 2002 in their briefs filed with this court. Therefore, we consider whether the October 5, 2022 judgment is an absolute nullity pursuant to Article 2002 or a relative nullity pursuant to Article 2004.

As noted, the order setting the hearing on the joint motion for involuntary dismissal stated that counsel would serve notice via La. C.C.P. art. 1313. Since the order set a hearing, defendants were required to serve Clark pursuant to Article 1313(C). Clark points out that Article 1313(C) requires the commercial courier to acquire a signed receipt from the addressee or his agent upon completion of delivery and asserts the record “plainly shows” this requirement was not met for the attempted service of the notice of the October 5, 2022 hearing. We disagree.

Defendants sent notice of the hearing to Clark's Baton Rouge and Houma addresses via FedEx, a commercial courier. The record does not contain evidence of acceptance of service at the Houma address. However, the FedEx shipment was delivered to Clark's Baton Rouge address and was signed by “R.Ronnie,” someone who had previously signed for and accepted defendants’ FedEx deliveries to Clark's Baton Rouge address.

Clark argues that defendants failed to present evidence of who “R.Ronnie” was or that “R.Ronnie” was his agent for service. However, Clark bore the burden of proof on the motion to annul. See Green v. Taylor Rental Properties, Inc., 55,515 (La. App. 2d Cir. 4/10/24), 384 So.3d 421, 426 (“In an action to annul a judgment based on the validity of service, the burden of proof lies on the claimant to show by a preponderance of the evidence that service was not properly made.”). Despite having an opportunity, Clark offered no evidence to show that “R.Ronnie” was not “the addressee's agent” for purposes of service under La. C.C.P. art. 1313(D)(1).

Clark also asserts that defendants knew or should have known the Houma address was his only proper address for service. He relies on two facts to reach this conclusion: someone identified as “L.Clark” signed for defendants’ FedEx delivery at the Houma address in March 2022 and defendants served Clark with notice of the June 2, 2022 hearing through a private process server at the Houma address.⁹ However, these facts alone did not put defendants on notice that the Houma address was Clark's exclusive, proper address for service, considering Clark provided the Baton Rouge address in his medical malpractice complaint and the Houma address was provided to defendants as an “additional” address for Clark. There is no indication defendants were told or otherwise knew that Clark resided in Houma and the address provided by Clark's mother was his sole, exclusive address for service.

Significantly, as well, someone identified as “L.Clark” signed for defendants’ FedEx delivery at the Baton Rouge address in April 2022.¹⁰ Clark asserts his mother, Lena Clark, signed for this delivery. However, Clark again failed to provide evidence to support this claim, and there is no indication when defendants became aware that Clark's mother was also “L.Clark” or that Ms. Clark lived at the Baton Rouge address without Clark. The defendants could not have reasonably excluded the possibility that Leon Clark was the “L.Clark” who signed for deliveries at both addresses, given the information they had.

In sum, Clark's arguments are based on hindsight and facts known by him, not defendants, due to his refusal to engage in the discovery process or to otherwise communicate with defendants. We find no error in the trial court's judgment denying Clark's motion to annul.

CONCLUSION

For the foregoing reasons, we affirm the trial court's January 8, 2024 judgment denying the motion to annul judgments filed by Leon Clark. All costs of this appeal are assessed to Leon Clark.

AFFIRMED.

I respectfully dissent from the majority's opinion. Louisiana Code of Civil Procedure article 2004(A) provides for the annulment of a final judgment obtained by fraud or ill practices.¹ Article 2004 is not limited to cases of actual fraud or intentional wrongdoing but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Robins v. Pirzadah, 2022-0844 (La. App. 1st Cir. 4/14/23), 365 So.3d 830, 834, writ denied, 2023-00665 (La. 9/19/23), 370 So.3d 466. Not every fraud or ill practice constitutes grounds to annul a judgment, and nullity is only an appropriate remedy when a causal relationship between the fraud or ill practice and the obtaining of the judgment can be shown. Florida Gas Transmission Company, LLC v. Texas Brine Co., LLC, 2022-1234 (La. App. 1st Cir. 6/2/23), 369 So.3d 892, 896, writ denied, 2023-00925 (La. 11/15/23), 373 So.3d 50.

Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would be unconscionable or inequitable. Id. The petitioner must satisfy both criteria to succeed in his action for nullification. Florida Gas Transmission Company, LLC, 369 So.3d at 896. “Ill practice” is any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right. Robins, 365 So.3d at 834. The “legal right” of which a litigant must be deprived to have a judgment annulled includes the right to appear and assert a defense and the right to a fair and impartial trial. Id. Thus, lack of notice of a trial is within the purview of Article 2004. Sweeney, Inc. v. Olivier, 589 So.2d 61, 63 (La. App. 1st Cir. 1991).

When ill practices are alleged, the court must examine the case from an equitable viewpoint to determine whether the party seeking annulment has met the burden of showing how he was prevented or excused from asserting his claims or defenses. Mike v. Bob's Painting, 2007-2190 (La. App. 1st Cir. 9/26/08), 995 So.2d 43, 47. The purpose of an action for nullity is to prevent injustice that cannot be corrected through new trials and appeals. Id. Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices to which discretion reviewing courts will defer. Id.

In the case before this court, Mr. Clark initially sought to annul the judgments rendered against him, which resulted in the involuntary dismissal of his medical malpractice complaint, due to ill practices. Mr. Clark put forth evidence that the alleged ill practices began prior to the hearing on defendants’ motions to compel discovery, which took place on June 2, 2022.

As evidenced in Mr. Clark's affidavit submitted in support of his motion to annul, Mr. Clark was incarcerated at the time of the June 2, 2022 hearing on defendants’ motions to compel discovery and as such, was unable to attend the hearing. However, Mr. Clark stated that he asked his mother to notify defense counsel of his incarceration and inability to attend the hearing. Mr. Clark stated that he was unaware that the hearing took place, and was under the impression that the matter had been continued pursuant to his mother's request of defense counsel. Mr. Clark's mother, Lena Clark, further provided an affidavit in support of Mr. Clark's motion, wherein Ms. Clark stated that following Mr. Clark's incarceration, he requested she contact the attorneys representing Ochsner and Dr. Blanchard. Ms. Clark stated that she called defendants’ attorneys and notified the person with whom she spoke that Mr. Clark was incarcerated and would be unable to attend the June 2, 2022 hearing on the motions to compel and requested that the hearing be continued to another day. Ms. Clark stated that upon the conclusion of the conversation, she believed she had done all that she could do to provide notice of Mr. Clark's unavailability and that the hearing would be continued. The hearing proceeded as scheduled without defendants mentioning the notice they had received of Mr. Clark's incarceration to the court. Mr. Clark attested that he never received notice of the July 19, 2022 judgment, which granted defendants motion to compel and sanctioned Mr. Clark. The record too, is devoid of evidence that the notice of judgment was actually delivered by commercial courier, defendants chosen means of service, to Mr. Clark or any agent on his behalf, at either the Houma address or the Baton Rouge address listed on his medical review panel request.² Furthermore, Mr. Clark attested that he remained unaware that the judgment compelling discovery had been signed.

In opposition to Mr. Clark's motion to annul, Ochsner and Dr. Blanchard submitted evidence that notice of the July 19, 2022 judgment was mailed to Mr. Clark via Federal Express to both the Baton Rouge and Houma addresses. However, the record does not contain a delivery receipt for the Houma address, and the delivery receipt for the Baton Rouge address shows that notice, although requested to be delivered to the Baton Rouge address for Mr. Clark, was in fact delivered to a different Baton Rouge address and signed for by “L. Leon.”

This July 19, 2022 judgment to compel discovery, of which Mr. Clark never received notice, became the catalyst for defendants’ motion for involuntary dismissal pursuant to La. Code Civ. P. art. 1471. The Supreme Court in Horton v. McCary, 93-2315 (La. 4/11/94) 635 So.2d 199, 203, acknowledged that “dismissal ․ [is a] draconian penalt[y] which should be applied only in extreme circumstances.” The Supreme Court further stated in Horton that “those sanctions are generally reserved for the most culpable conduct.” Id. Courts have found that the ultimate sanction (dismissal with prejudice) should not be imposed unless the record shows that the plaintiff was clearly aware that noncompliance would result in the sanction of dismissal. See Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317 (La. App. 4th Cir. 7/6/05), 913 So.2d 131, 134, writ denied, 2005-2077 (La. 2/10/06), 924 So.2d 170; Duffy v. Pendleton Memorial Methodist Hospital, 2010-0660 (La. App. 4th Cir. 12/8/10), 53 So.3d 636, 639; Rodriquez-Zaldivar v. Leggett, 2018-0410 (La. App. 4th Cir. 1/23/19), 318 So.3d 859, 862.

Once again, defendants mailed notice of this hearing to Mr. Clark via Federal Express, both to the Baton Rouge and Houma addresses. The record is devoid of any actual delivery to the Houma address, and as the majority mentioned, all defendants could demonstrate was delivery of notice to an “R. Ronnie” at the Baton Rouge address without even an allegation of his agency for Mr. Clark.

In reviewing the circumstances as a whole and in an equitable manner, I find the trial court erred in failing to find a causal relationship between defendants’ failure to notify Mr. Clark of the judgment rendered against him at the hearing on the motions to compel discovery, which defendants knew Mr. Clark would be unable to attend, the lack of notice regarding the hearing on defendants’ motion for involuntary dismissal and Mr. Clark's failure to appear and defend his claim adequately which resulted in dismissal of his action.³ For these reasons, I would reverse, in part, the trial court's January 8, 2024 judgment denying Leon Clark's motion to annul the October 5, 2022 judgment, and reinstate his medical malpractice complaint.

FOOTNOTES

1.   The entire record was introduced into evidence during the hearing on the motion to annul.

2.   Clark incorrectly named “Ochsner St. Anne Hospital” in his request, which was assigned PCF No: 2021-00417.

3.   The hearing on the motions was originally set in April 2022; however, Clark did not appear. The trial court ordered the matter continued to June 2, 2022 and granted the defendants’ motion to appoint a private process server to serve Clark with various pleadings and notice of the June 2, 2022 hearing.

4.   Ms. Clark believes she spoke to the attorney who formerly represented Dr. Blanchard. Ochsner and Dr. Blanchard have, from the inception of this proceeding, been represented by different attorneys within the same law firm.

5.   Ms. Clark denied telling counsel that Clark checked himself into a mental health facility. Instead, Ms. Clark testified that she told counsel Clark was incarcerated.

6.   Louisiana Code of Civil Procedure article 1471(A)(3) pertinently provides that, if a party fails to obey an order to provide or permit discovery, the court in which the action is pending may make such orders in regard to the failure as are just, including an order dismissing the action or proceeding. While the trial court did not specifically warn Clark in the July 19, 2022 judgment that his malpractice action would be dismissed if he failed to comply with the discovery order, Clark, represented by counsel, did not raise this issue before the trial court or on appeal as grounds for annulling either judgment.

7.   The written reasons for judgment are merely an explication of the trial court's determinations. They do not alter, amend, or affect the final judgment being appealed. Wooley, 61 So.3d at 572.

8.   This does not apply where the defendant voluntarily acquiesced in the judgment or was present in the parish at the time of its execution and did not attempt to enjoin its enforcement. See La. C.C.P. arts. 2002 and 2003.

9.   Someone identified as “L.Clark” signed for Dr. Blanchard's FedEx delivery on March 11, 2022, which contained counsel's letter to Clark regarding the failed attempt to conduct a Rule 10.1 conference and outstanding discovery and advised that a motion to compel would be filed if Clark's discovery responses were not received within two weeks. The private process server served Clark at the Houma address on May 11, 2022 with both motions to compel and notice of the June 2, 2022 healing.

10.   Someone identified as “L.Clark” signed for Ochsner's FedEx delivery on April 1, 2022, which contained Ochsner's motion to compel, notice of hearing, originally set on April 21, 2022, and a notice of fixing case for trial.

1.   Louisiana Code of Civil Procedure article 2004(B) provides that an action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. Looking at the record before this court, it is clear that Mr. Clark instituted his nullity action of the October 5, 2022 judgment dismissing his medical malpractice complaint timely on October 3, 2023, within the year of its issuance, and well within the year of his discovery of the alleged ill practices resulting in this judgment, which Mr. Clark's affidavit states was not until early 2023.

2.   Although the majority states that the clerk of court mailed notice of the July 19, 2022 judgment to Mr. Clark, there is nothing in the record to support that finding. The only notice of this judgment mailed by the clerk of court evidenced in the record demonstrates that the recipient was defendants’ counsel. Moreover, defendants, in support of their motion for involuntary dismissal, argued and put in the record that they mailed notice of this judgment via FedEx to Mr. Clark's Baton Rouge and Houma addresses; however, there is no evidence of this judgment ever actually being delivered to Mr. Clark at any address.

3.   I further note that at this point in the litigation, this case only involved a discovery request by the possible defendants in a future malpractice case. There was no evidence in the record wherein Mr. Clark was warned by the trial court that if he did not comply with the discovery order that his future malpractice case would be dismissed with prejudice in accordance with La. Code Civ. P. art. 1471(A)(3). In the case of a self-represented litigant, it is essential that the litigant be informed that a failure to comply with a discovery order may be grounds for dismissing his lawsuit before that sanction is applied.

PENZATO, J.

Fields, J. dissents with reasons.