BAYOU ORTHOTIC AND PROSTHETICS CENTER, L.L.C.
MORRIS BART, L.L.C.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 767-888, DIVISION
"M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, BAYOU ORTHOTIC AND
PROSTHETICS CENTER, L.L.C. Joseph F. Lahatte, III
COUNSEL FOR DEFENDANT/APPELLEE, MORRIS BART, L.L.C. Andrew A.
Braun Victoria E. Emmerling
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Marion F. Edwards, Judge Pro Tempore
Bayou Orthotic and Prosthetics Center, L.L.C.
("Bayou"), appeals a trial court judgment which
granted an exception of prematurity filed by
defendant/appellee, Morris Bart, L.L.C. ("Bart"),
and dismissed the case. For the reasons that follow, we
affirm the trial court's judgment.
AND PROCEDURAL HISTORY
owns and operates a medical specialty business that provides
medical prosthetics and related services and equipment. In
2006, Bayou provided Leroy Davis with an above-the-knee
prosthesis after he had been injured in an accident in
Orleans Parish on February 5, 2006. On September 19, 2006,
Bart sent a letter to Bayou stating that it was representing
Mr. Davis for injuries he sustained in said accident and it
was requesting a copy of Mr. Davis's medical records. On
January 4, 2007, Bart sent another letter to Bayou stating
that it would protect Bayou's medical charges in the
amount of $29, 124.76 for the fitting of Mr. Davis's
prosthesis, as outlined in an October 20, 2006 invoice,
"out of any net settlement or proceeds obtained during
this firm's representation in this matter as a result of
any claims for damages" arising out of Mr. Davis's
February 5, 2006 accident. On January 11, 2007, Bart sent a
similar letter to Bayou, again assuring Bayou that it would
protect the $29, 124.76 "out of any net settlement or
proceeds obtained during this firm's representation in
this matter as a result of any claims for damages"
arising out of Mr. Davis's accident. Bayou continued to
treat Mr. Davis for almost ten years thereafter for a number
of services valued by Bayou at $125, 923.40.
January 4, 2017, Bayou filed a Petition for Damages against
Bart, claiming that it had not been paid any amount from Bart
on Mr. Davis's outstanding balance for services rendered,
despite assurances of payment having been made by Bart, both
by letters and orally. In its petition, Bayou alleged that it had
never agreed to an arrangement with Bart to operate on a
"lien basis, " nor to only be paid out of a
settlement. Bayou argued that it was a specialty provider
that did not operate in that manner. The petition made
several claims against Bart, including detrimental reliance,
breach of contract, negligence, and "promissory and
equitable estoppel." Bayou prayed that it be compensated
for the full value of all medical services it provided to Mr.
Davis, "allowable" interest on the balance of Mr.
Davis's account, and reasonable attorney's fees and
response to the petition, Bart filed various exceptions,
including an exception of prematurity in which Bart argued
that Bayou's claims were premature since its obligation
to make payment to Bayou was dependent upon the occurrence of
a suspensive condition-the payment to Bart of settlement
proceeds-which had not yet occurred. In its memorandum in support
of its exceptions, Bart acknowledged that through its January
4, 2007 and January 11, 2007 letters, it guaranteed payment
to Bayou of $29, 124.76 out of any net settlement or proceeds
obtained during its representation of Mr. Davis. Bart further
provided that on December 7, 2009, a settlement in the amount
of $1, 890, 872.00 had been reached in Mr. Davis's
personal injury case, and a stipulated judgment in the
settlement amount had been rendered against the City of New
Orleans on that date; however, to date, the City had not
appropriated the funds to pay the judgment, and thus, no
settlement proceeds had been obtained. Bart argued that since
the obligation to pay the medical expenses was predicated
upon the receipt of proceeds through settlement or judgment,
which had not yet occurred, Bayou's suit was premature.
opposition to the exception, Bayou argued that the agreement
between the parties was based on a term, not on a suspensive
condition, and accordingly, payment had to be made within a
reasonable time. Bayou argued that Bart did not perform as
agreed to at the time of the settlement, nor did it perform
within a reasonable time after the settlement. Alternatively,
Bayou argued that the term and/or condition is not based upon
when Bart received the settlement or proceeds, but
rather when Bart obtained a settlement or proceeds.
Since Bart obtained the settlement on December 7, 2009, Bayou
argued that the term had expired and/or the condition had
occurred and was therefore enforceable.
trial court conducted a hearing on the exceptions on May 24,
2017. At the end of the hearing, the trial judge orally
sustained the exception of prematurity and dismissed the
case. A written judgment to this effect was signed on May 31,
appeal, Bayou assigns the following errors, to-wit:
1. The claims brought against Bart are not premature; the
case needs a full trial based on the positions of both
parties regarding the responsibility of payment.
2. The existence of a mandate would not preclude Bart from