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DOUGLAS ROBINS, ET AL v. MOHAMMAD ZOHAIR PIRZADAH, M.D., ET AL.
DOUGLAS ROBINS AND KATHERINE ROBINS v. MOHAMMAD ZOHAIR PIRZADAH, M.D. AND CHARLES LANE PEARSON, JR., M.D.
In this nullity action, plaintiffs, Douglas and Katherine Robins, appeal from a trial court judgment sustaining an exception raising the objection of no right of action and granting summary judgment in favor of defendants, Mohammad Zohair Pirzadah, M.D. and Charles Lane Pearson, Jr., M.D., and dismissing plaintiffs’ petition for nullity with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 10, 2015, plaintiffs filed a medical malpractice action against Dr. Pirzadah and Dr. Pearson alleging negligence of the defendants in their treatment of Douglas Robins. Janie Coles and Jonathan Thomas represented Dr. Pirzadah and Dr. Pearson in the action, and John Hammons and William Murray, Jr. represented the plaintiffs. The matter ultimately proceeded to a bench trial on September 24-26, 2018, before Judge William Morvant in the Nineteenth Judicial District Court. On the first day of trial, Ms. Coles notified the court that Dr. Pirzadah was not in court because his son had been in a serious car accident in St. Louis and had multiple vertebral fractures and Dr. Pirzadah was “dealing with that.” On the third and final day of trial, during closing argument, Mr. Hammons stated that he suspected Dr. Pirzadah was available, as he was advised by Our Lady of the Lake Regional Medical Center (OLOL) the day before that Dr. Pirzadah was at the hospital, and requested application of an adverse presumption due to Dr. Pirzadah's failure to appear and testify at trial. Thereafter, in rendering judgment in favor of defendants, the trial court found that plaintiffs had failed to prove their case and declined to apply an adverse presumption because it was unable to verify the statements made by Mr. Hammons in his closing argument regarding Dr. Pirzadah's availability. The trial court signed a judgment on November 9, 2018, in favor of defendants, dismissing plaintiffs’ suit against them with prejudice.
Plaintiffs appealed the trial court's judgment and in Robins v. Pirzadah, 19-0523 (La. App. 1st Cir. 12/27/19), 292 So. 3d 570, writ denied, 20-00043 (La. 4/27/20), 295 So. 3d 396, this court affirmed the trial court's judgment. Plaintiffs subsequently filed an application for writ of certiorari with the Louisiana Supreme Court, which was denied.
Thereafter, on July 20, 2020, plaintiffs filed a petition to annul judgment, asserting that they had discovered evidence that the judgment had been obtained by fraud and ill practices in that counsel for defendants made a material misrepresentation at the beginning of trial, which the trial court relied on in denying plaintiffs’ request for application of the adverse presumption rule. Plaintiffs asserted that defense counsel developed a trial strategy that was based in part upon the material misrepresentation made by Ms. Coles in open court regarding the whereabouts of Dr. Pirzadah. Plaintiffs asserted that they had obtained evidence that Ms. Coles and defendants colluded for strategic purposes to materially misrepresent Dr. Pirzadah's whereabouts at the time of trial and willfully and intentionally sought to mislead the court for strategic and tactical advantage. Plaintiffs alleged that a critical component of the underlying medical malpractice litigation involved the trial court's refusal to apply an adverse presumption against Dr. Pirzadah and had the trial court not been misled, it would have applied the adverse presumption and would have rendered judgment in favor of plaintiffs. Therefore, plaintiffs sought to have the November 9, 2018 judgment as well as this court's opinion and the supreme court's writ denial declared null and void.
On December 14, 2021, defendants filed an exception raising the objection of no cause of action, an exception raising the objection of no right of action, and a motion for summary judgment. Defendants asserted that plaintiffs did not have a right of action and that their petition failed to state a cause of action under La. C.C.P. art. 2005. Particularly, defendants asserted that the fraud and ill practices plaintiffs allege were not only in the record on appeal of the medical malpractice action but were also asserted by plaintiffs in their appellate brief in support of their second assignment of error. Furthermore, defendants asserted that this court, in rendering its opinion, considered plaintiffs’ argument that the trial court wrongfully denied their request for application of an adverse presumption against Dr. Pirzadah because of an alleged misrepresentation during trial.
With regard to their motion for summary judgment, defendants asserted that there was no genuine issue of material fact as to whether the November 2018 judgment can be annulled under La. C.C.P. art. 2005, as the plaintiffs supposed ground for nullification was included in the record on appeal of the malpractice action and was considered on appeal and expressly rejected by this court. Therefore, defendants asserted that plaintiffs cannot meet their burden in their nullity action. Additionally, defendants asserted that there is a lack of evidence of collusion or fraud to materially misrepresent to the court Dr. Pirzadah's whereabouts during trial and there is no genuine issue of material fact regarding whether the alleged fraud, ill practice, or collusion deprived plaintiffs of a legal right and whether there was a causal relationship between the alleged fraud, ill practice, or collusion and obtaining the judgment in the malpractice action.
On January 6, 2022, plaintiffs filed a motion for summary judgment asserting that there is no genuine issue of material fact and plaintiffs are entitled to judgment as a matter of law granting their petition for nullity.
Following a hearing on the exceptions and motions for summary judgment, the trial court signed a judgment on May 5, 2022, denying defendants’ exception raising the objection of no cause of action, denying plaintiffs’ motion for summary judgment, granting defendants’ exception raising the objection of no right of action, granting defendants’ motion for summary judgment, and dismissing plaintiffs’ petition to annul judgment with prejudice. Plaintiffs now appeal from the trial court's May 5, 2022 judgment.
Standard of Review
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La. 7/5/94), 639 So. 2d 730, 751.
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. See La. C.C.P. art. 966(A)(3).
Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1); Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So. 2d 37, 39; Jenkins v. Hernandez, 19-0874, p. 4 (La. App. 1st Cir. 6/3/20), 305 So. 3d 365, 371, writ denied, 20-00835 (La. 10/20/20), 303 So. 3d 315. The moving party must only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1); Mercadel v. State Through Department of Public Safety and Corrections, 18-0415, p. 6 (La. App. 1st Cir. 5/15/19), 2019 WL 2234404, *3 (unpublished opinion). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, Comments—2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition, which proves the existence of a genuine issue of material fact, Article 966(D)(1) mandates the granting of the motion for summary judgment. Babin, 00-0078 at p. 4, 764 So. 2d at 40; Jenkins, 19-0874 at p. 5, 305 So. 3d at 371.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Succession of Hickman v. State Through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La. App. 1st Cir. 4/12/17), 217 So. 3d 1240, 1244.
Defendants’ Motion for Summary Judgment
In seeking summary judgment, defendants asserted that there is no genuine issue of material fact as to whether the judgment in defendants’ favor in the malpractice action can be annulled under La. C.C.P. art. 2005, because plaintiffs supposed ground for nullification was included in the record on appeal of the malpractice action and was considered on appeal and expressly rejected by this court and the supreme court. Defendants also asserted that plaintiffs cannot establish that they can meet their burden of producing factual support sufficient to establish the existence of a genuine issue of material fact with regard to the supposed fraud, ill practice, or collusion on the part of Ms. Coles, Dr. Pirzadah, and/or Dr. Pearson in obtaining the judgment in their favor in the malpractice action.
A final judgment obtained by fraud or ill practices may be annulled by filing an action to annul within one year of the discovery of fraud or ill practices. La. C.C.P. art. 2004. This article 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. Because an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof, it is imperative that courts review a petition for nullity closely. The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals. Belle Pass Terminal, Inc. v. John, Inc., 01-0149, p. 5 (La. 10/16/01), 800 So. 2d 762, 766.
A judgment is subject to nullification for fraud or ill practices when two criteria are met: (1) the circumstances under which the judgment was rendered show a deprivation of the legal rights of the litigant seeking relief; and (2) enforcement of the judgment would be unconscionable or inequitable. Mike v. Bob's Painting, 07-2190, p. 5 (La. App. 1st Cir. 9/26/08), 995 So. 2d 43, 47.
“Ill practice” is any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right. 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. Morton Building, Inc. v. Redeeming Word of Life Church, 01-1837, p. 7 (La. App. 1st Cir, 10/16/02), 835 So. 2d 685, 689, writ denied, 02-2733 (La. 1/24/03), 836 So. 2d 46.
However, La. C.C.P. art. 2005 provides that “[a] judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.” The law is clear that existence of either of the conditions in La. C.C.P. art. 2005 may prohibit maintenance of a nullity action. Dumas v. Board of Ethics, 19-0289, p. 6 (La. App. 1st Cir. 11/15/19), 290 So. 3d 1143, 1147, writ denied, 19-02017 (La. 2/10/20), 294 So. 3d 475. Furthermore, the requirement that a “ground for nullity ․ was not considered by the appellate court” has been interpreted to preclude a subsequent nullity action not only when an appellate court has made an express ruling on an issue but also when it has found implicitly that the issue raised was unpersuasive. Mendonca v. Tidewater, Inc., 11-0318, p. 5 (La. App. 4th Cir. 9/7/11), 73 So. 3d 407, 411-412, writ denied, 11-2333 (La. 12/2/11), 76 So. 3d 1179.
In support of their motion for summary judgment, defendants submitted a copy of plaintiffs’ petition to annul judgment, plaintiffs’ petition for damages in the malpractice action, portions of the transcript from day one and day three of trial in the malpractice action, the trial court's ruling and oral reasons for judgment in the malpractice action, the judgment from the malpractice action, plaintiffs’ appellate brief in the malpractice action, plaintiffs’ reply brief in the malpractice action, this court's decision in the appeal of the malpractice action, plaintiffs’ application for writ of certiorari to the Louisiana Supreme Court and its writ denial, and affidavits of Ms. Coles, Dr. Pirzadah, and Dr. Pearson.
From a reading of plaintiffs’ petition to annul judgment based upon the alleged fraud and ill practices of defendants and their counsel, it is evident that the basis for their nullity action is that counsel for defendants, Ms. Coles, allegedly made a material misrepresentation at the beginning of the malpractice trial regarding the whereabouts of her client, Dr. Pirzadah, and the circumstances of his absence from trial, which the trial court relied on in denying plaintiffs’ request for application of the adverse presumption rule. However, this ground for nullity not only appears in the record of the malpractice action, but it was also raised in the appellate court and the supreme court and was rejected by those courts.
The transcript from the first day of the malpractice trial reflects that Ms. Coles notified the trial court at the commencement of trial that “Dr. Pirzadah is not here today. His son was in a pretty bad car accident in St. Louis and he has multiple vertebral fractures. So, Dr. Pirzadah is dealing with that today.” On the third day of trial, Mr. Hammons, counsel for plaintiffs, stated in his closing argument that “Dr. Pirzadah ․ did not testify. That creates an adverse presumption that, had he testified, his testimony would have been adverse both to him and to his partner. I suspected that he was available. We were advised by [OLOL] yesterday that he was here at the hospital. But he's not been in this courtroom. So, he was available to testify and chose not to... If he's not here to testify, for whatever reason, strategy that defense counsel may have chosen, the fact remains that he ․ [was] not called[.]” In ruling in favor of defendants, the trial court denied plaintiffs’ request for application of the adverse presumption rule. In particular, with regard to counsel for plaintiffs’ comments during closing arguments regarding his receipt of information that Dr. Pirzadah was in Baton Rouge seeing patients at OLOL as of the second day of trial, the trial court noted that it had “no way of verifying that one way or the other.”
On appeal of the malpractice action, plaintiffs asserted in brief that Ms. Coles had notified the trial court on the first day of trial that Dr. Pirzadah was in St. Louis attending to his son, but after becoming suspicious as to whether any such circumstance existed, counsel for plaintiffs telephoned Dr. Pirzadah's office and OLOL and confirmed that Dr. Pirzadah was not in St. Louis attending to his son but was in Baton Rouge at OLOL. Plaintiffs acknowledged bringing this possible “material misrepresentation” to the attention of the trial court. Plaintiffs further asserted that Ms. Cole's silence at trial when presented with this information constituted an admission that Dr. Pirzadah was not in St. Louis attending to his son but was in Baton Rouge at OLOL, that Dr. Pirzadah's absence was presumptively a trial strategy, and therefore, the uncalled witness adverse presumption should have been applied. Plaintiffs specifically alleged as error the trial court's failure to make any reasonable inquiry to investigate and address what is presumptively a material misrepresentation by failing to question defense counsel regarding the whereabouts of Dr. Pirzadah or delaying ruling until Dr. Pirzadah could be brought into court and questioned. Accordingly, plaintiffs alleged that the trial court's failure to determine the true facts and to apply an adverse presumption were legal errors.
On appeal in Robins, this court addressed plaintiffs’ argument that the trial court erred in failing to apply the adverse presumption rule and found no abuse of the trial court's discretion in denying the imposition of the theory of adverse presumption against Dr. Pirzadah. Specifically, this court, after reviewing the trial transcript and oral reasons for judgment, found that “[r]egardless of where Dr. Pirzadah was at the time of the trial, he was duly accessible prior to the trial, and the failure of his being deposed or subpoenaed to testify is attributable equally to the plaintiffs and defendants. Moreover, the trial court was satisfied with the defendants’ explanation for Dr. Pirzadah's absence.” Robins, 19-0523 at p. 11, 292 So. 3d at 577 (footnote omitted). In so holding, this court implicitly found that the issue regarding material misrepresentation and the trial court's failure to investigate same was unpersuasive. See Mendonca, 11-0318 at p. 5, 73 So. 3d at 411-412.
Therefore, from our review of the evidence submitted in connection with the motion for summary judgment, we find that the ground for nullity asserted in plaintiffs’ petition for nullity appeared in the record of appeal and was considered and rejected by the appellate court.1 As such, La. C.C.P. art. 2005 prohibits maintenance of a nullity action, and the trial court was correct in granting summary judgment in favor of defendants dismissing plaintiffs’ petition for nullity of judgment.2
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to plaintiffs, Douglas and Katherine Robins.
1. Plaintiffs assert that their petition to annul judgment is based on newly discovered evidence, namely, the affidavit of Dr. Pirzadah, which they claim incontrovertibly proves Ms. Cole made a material misrepresentation at the beginning of trial and that such facts were not known until the affidavit was obtained. While we agree that the supporting facts may not have been known prior to the acquisition of Dr. Pirzadah's affidavit, the record in the malpractice action and the briefs filed in connection with the prior appeal indicate that plaintiffs were aware as of the second day of trial that a material misrepresentation had been made by Ms. Coles to the trial court and brought that information to the attention of both the trial court and the appellate court in the malpractice action. Therefore, we find plaintiffs’ argument that they did not know of the ground for nullity until they obtained the affidavit of Dr. Pirzadah to be without merit.
2. Having found that the trial court was correct in granting summary judgment in favor of defendants and dismissing plaintiffs’ claims against them, we pretermit discussion of plaintiffs’ remaining assignments of error.
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Docket No: NUMBER 2022 CA 0844, consolidated with NUMBER 2022 CA 0845
Decided: April 14, 2023
Court: Court of Appeal of Louisiana, First Circuit.
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