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In re Commitment of Cole

Court of Appeals of Louisiana, First Circuit

April 17, 2019

IN THE MATTER OF THE COMMITMENT OF DERRICK COLE

          On Appeal from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana Docket No. JC-3157 Honorable William G. Carmichael, Judge Presiding

          Laura Picard Pineville, Louisiana Attorney for Appellant Derrick Cole

          Stephanie Borghardt Jenna G. Young Neal R. Elliot, Jr. Baton Rouge, Louisiana Attorneys for Appellee Louisiana Department of Health, Office of Behavior Health

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          PENZATO, J.

         This is an appeal from the civil commitment of Derrick Cole by the Louisiana Department of Health (LDH). For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         At the time the commitment proceeding was filed, Cole was a twenty-nine-year-old male with a history of bipolar disorder, intermittent explosive disorder, and an intellectual disability. For approximately seven years, beginning January 21, 2010, Cole resided at Pinecrest Supports and Services in Pineville, Louisiana (Pinecrest), but the facility was no longer able to control his behavior.[1] On March 31, 2017, he was admitted to Central State Hospital (Central) for stabilization. While at Central, Cole exhibited aggressive behavior toward the staff and was extremely impulsive, resulting in the facility's medical director filing a petition for judicial commitment on May 18, 2017, in the 9th Judicial District Court for Rapides Parish, Docket No. 5762 (9th JDC action). Cole remained at Central for approximately a year before he was discharged to a less restrictive environment.

         It is unclear from the record whether the less restrictive environment in which Cole was placed was a group home or his own apartment with support staff, as the record contains evidence as to both living arrangements. It is clear that pursuant to the Developmental Disability Law, La. R.S. 28:451.1-455.2, Heaven On Earth Network, Inc. (Heaven On Earth)[2] provided Cole support in the less restrictive environment. Heaven On Earth eventually became unable to assist Cole due to his behavior. Cole exhibited aggressive and violent behavior, made threatening statements, and the police had to be called on several occasions. There was also evidence that Cole ran away, was involved in fights, became suicidal, drank chemicals, and threatened Heaven On Earth's staff. By correspondence dated July 12, 2018, Heaven On Earth notified Cole that it could no longer be his provider due to his aggressive and violent behavior and that the last date it would provide services would be August 9, 2018. The plan coordinator, Medical Resource and Guidance, was also informed of this decision.[3] Cole was further instructed of his right to appeal the decision. Medical Resource and Guidance attempted to find Cole another provider, but was unsuccessful.

         Cole testified that after an altercation with the Heaven On Earth staff, the police were called and took him to Lake Charles Memorial Hospital (Lake Charles Memorial). Cole was subsequently admitted to Lake Charles Memorial pursuant to a Physician's Emergency Certificate (PEC)[4] dated August 10, 2018, and a Coroner's Emergency Certificate (CEC)[5] dated August 11, 2018, for refusing to take his medications, as well as hostility and homicidal threats to the group home staff. On August 17, 2018, Lake Charles Memorial requested that Cole be admitted to East Louisiana Mental Health System (ELMHS). Cole was admitted to ELMHS pursuant to a PEC dated August 17, 2018, signed by Dr. Muhummad Ahmed, a board certified psychiatrist who treated Cole at ELMHS. Dr. Ahmed testified that Lake Charles Memorial's employees could not control Cole's behavior, [6] noting in the PEC that Cole had a history of bipolar disorder, intermittent explosive disorder, and intellectual disability. A CEC was signed on August 18, 2018. On August 20, 2018, the assistant clinical director of ELMHS filed the current petition for judicial commitment in the 20th Judicial District Court, Parish of East Feliciana (20th JDC action).

         Dr. Ahmed testified that when Cole arrived at ELMHS, he was extremely irritated and having paranoid and suicidal thoughts. Dr. Ahmed noted that Cole had a long history of bipolar disorder and cognitive impairment. Because of the violent and threatening statements Cole made while at the group home, at Lake Charles Memorial, and to Dr. Ahmed, Cole was assigned someone to be arms-length from him at all times. Cole eventually improved to the point that he only needed continuous visual observation, but he continued to act out and was involved in several fights. Dr. Ahmed reduced the continuous visual observation when Cole agreed not to act out. However, Dr. Ahmed testified that Cole remained impulsive and violent.

         Dr. Ahmed further testified that bipolar disorder is a serious mental illness and that Cole is a danger to himself and others and is gravely disabled. Cole also suffers from cognitive impairment. Dr. Ahmed believed that Cole's violent, impulsive behaviors would continue and that he would not take his medication in a less restrictive environment.

         Cole testified that he had lived at Pinecrest for seven years. He was transferred to Central after he had an incident that involved throwing chairs. He testified that security personnel then "ran over him" or "ran into him" with a John Deere all-terrain vehicle, causing him to scrape his arm resulting in treatment at a hospital. Cole stated that he was discharged from Pinecrest to Central involuntarily after he was forced to sign a piece of paper, even though he testified that he can barely read. Central eventually discharged Cole, and he returned to his own apartment, with staff of Heaven On Earth. He stated that the staff either slept or left him on his own. He had numerous conflicts with the staff and claimed he sprayed a fire extinguisher at one of them who was trying to fight him. The police were called, and he was taken to Lake Charles Memorial. Lake Charles Memorial placed him in the Archer Institute, the psychiatric ward of the hospital. He became uncooperative and was transferred to ELMHS. Cole claims that a doctor at Lake Charles Memorial told him that he was discharged.

         The trial court found that Cole suffers from a mental illness that causes him to be gravely disabled, dangerous to others, and dangerous to himself. Cole was committed to the custody of LDH. The trial court signed a judgment in accordance with its oral ruling on September 7, 2018, committing Cole to the custody of LDH pursuant to La. R.S 28:1 et seq., for a period not to exceed one hundred and eighty days. The judgment continued Cole's placement at ELMHS pursuant to La. R.S. 28:25.1 until "appropriate placement options are available through [LDH]." It is from this judgment that Cole appeals.

         LAW AND DISCUSSION

         Exception of Lis Pendens

         Cole's first assignment of error is that the trial court erred in denying his exception of lis pendens. The September 7, 2018 judgment contains no mention of the exception of lis pendens, even though the trial court orally denied same. Although the trial court's judgment does not address the exception, silence in a judgment as to any issue before the trial court is deemed a rejection of that demand or issue. The exception of lis pendens is thus deemed denied. Naramore v. Aikman, 2017-1621 (La.App. 1 Cir. 6/4/18), 252 So.3d 935, 944. Therefore, we address the denial of the exception of lis pendens on appeal.

         The instant petition for judicial commitment was filed on August 20, 2018, in the 20th JDC by the assistant clinical director of ELMHS. Cole filed the exception of lis pendens in the 20th JDC on August 22, 2018, asserting that another legal action for commitment was pending against him in the 9th JDC. Therefore, Cole asserted that the suit filed in the 20th JDC should be dismissed pursuant to La. C.C.P. art. 531.

         The medical director at Central had previously filed the 9th JDC action on May 18, 2017. In that proceeding, Cole filed an answer and reconventional demand, claiming that his placement in a facility should be determined pursuant to La. R.S. 28:451.1, et seq. LDH filed an answer to the reconventional demand, asserting that per La. R.S. 28:451.1, et seq., only LDH is authorized to determine if an individual is eligible for developmental disability services and that if an individual is found eligible, LDH determines the appropriate placement. A consent judgment was entered in the 9th JDC on August 28, 2017, committing Cole to the custody of the Office of Citizens with Developmental Disabilities, which is part of LDH. The involuntary commitment was for a 60-day period.

         In the instant case, LDH opposed the exception of lis pendens on the basis that the commitment ordered in the August 28, 2017 consent judgment in the 9th JDC action was for only a 60-day period, resulting in an expiration of the commitment period on October 27, 2017. LDH asserted that La. R.S. 28;454.7(B) provides in pertinent part, "Any person who is not recommitted shall no longer be under court commitment, but shall continue to receive all supports and services as identified in his support plan, as long as he meets state criteria." No further orders or judgments were entered into the record in the 9th JDC action extending the commitment period. LDH argued that at the time Cole was discharged from Central to a less restrictive setting on March 2, 2018, [7] the proceedings in the 9th JDC were completed. Thereafter, and subsequent to the filing of the instant action, Cole filed a petition for writ of habeas corpus directed to ELMHS in the 9th JDC action on August 21, 2018, which was set for hearing on August 30, 2018. The trial court ruled orally that the exception of lis pendens was overruled because it found no pending action in the 9th JDC.

         The objection of lis pendens is raised by a declinatory exception. La. C.C.P. art. 925(A)(3). On the trial of the declinatory exception, evidence may be introduced to support or controvert any objection pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon. La. C.C.P. art. 930. The trial court has broad discretion in making evidentiary rulings, and its decision will not be overturned absent an abuse of that discretion. Emery v. Owens-Corp., 2000-2144 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 448, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842.

         Louisiana Code of Civil Procedure article 531 codifies the doctrine of lis pendens and 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 [Louisiana Code of Civil Procedure] 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.

         The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, La. C.C.P. art. 531 requires that: 1) two or more suits are pending in a Louisiana court or courts; 2) on the same transaction or occurrence; and 3) between the same parties in the same capacities. The test established to determine if an exception of lis pendens should be sustained is the same as that for res judicata; thus, an exception of lis pendens should be sustained if a final judgment in the first suit would be res judicata in the subsequently filed suit. Aisola v. Louisiana Citizens Property Ins. Corp., 2014-1708 (La. 10/14/15), 180 So.3d 266, 269. In determining whether this requirement is met, the crucial inquiry is not whether the second suit is based on the same cause of action as the first suit, but whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that is the subject matter of the first suit. Citizens Sav. Bank v. G & C Development, L.L.C., 2012-1034 (La.App. 1 Cir. 2/15/13), 113 So.3d 1085, 1089; Code v. Department of Public Safety and Corrections, 2011-1282 (La.App. 1 Cir. 10/24/12), 103 So.3d 1118, 1125, writ denied, 2012-2516 (La. 1/23/13), 105 So.3d 59. The party filing the exception of lis pendens has the burden of proving the facts necessary for the exception to be sustained. AmSouth Bank v. Unemployment Compensation Control Systems, LLC, 2005-0253 (La.App. 1 Cir. 5/8/09), 2009 WL 1270295 *3 (unpublished).

         The first requirement of lis pendens is that there must be two or more suits pending in a Louisiana court or courts. Because lis pendens does not address the merits of the dispute between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court's judgment. Louisiana Cotton Ass'n Workers' Comp. Grp. Self-Ins. Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461, 464 (La.App. 2 Cir. 1993).

         In the instant case the trial court determined that there were not two suits pending at the same time. Upon review of the evidence submitted, we must agree with the trial court. On August 28, 2017, the 9th JDC entered a consent judgment at the time that Cole was a resident of Central. The consent judgment provided that Cole was committed to LDH for a total period of "sixty (60) days or until further order of the [c]ourt." The consent judgment also provided that the matter was set for a review on October 24, 2017. The minutes of the 9th JDC indicate that the following transpired: (1) on October 24, 2017, a review hearing took place with the attorneys agreeing to work to resolve the issue of a less restrictive placement and the matter was recessed until November 13, 2017; (2) the next review hearing was continued twice; (3) on December 12, 2017, a review hearing took place with the parties stipulating that progress was being made to find Cole a less restrictive placement; (4) the next hearing review was continued twice; (5) on March 8, 2018, a review hearing was called and counsel requested a continuance; (6) on April 10, 2018, the review hearing was again continued; (7) on May 8, 2018, a review hearing took place in which counsel advised the trial court that Cole had been discharged and placed in a less restrictive placement.

         By consent, Cole was committed in the 9th JDC action pursuant to the Developmental Disability Law.[8] This period of judicial commitment cannot exceed one hundred eighty (180) days, unless a hearing is held and other requirements are met. La. R.S. 28:454.7(A)[9]. However, an individual is entitled to receive the supports and services contained in his support plan if he meets the state criteria, even if no longer judicially committed. La. R.S. 454.7(B). The consent judgment noted that the agreement was intended to serve as a support plan as required by La. R.S. 28;454.5(C).

         The record reveals that the 9th JDC commitment order was 60 days in duration. Thereafter, it appears that Cole remained in LDH custody while attempts were made to find a less restrictive placement for him. Cole transitioned to a less restrictive environment in February 2018, but the 9th JDC was not advised of Cole's discharge from LDH custody and a less restrictive placement until May 8, 2018. Nevertheless, any judicial commitment period pursuant to the 9th JDC consent judgment had expired as of October 27, 2017. See La. R.S. 28r454.7(A). On August 20, 2018, the current petition for judicial commitment was filed in the 20th JDC.

         Cole asserts that the 9th JDC matter was never resolved and that his reconventional demands are still pending. However, based upon the prayers for relief contained therein, the consent judgment entered into in the 9th JDC action appears to address the reconventional demands made by Cole against LDH.[10] He further claims that he was due in court in the 9th JDC on August 30, 2018, but he was unable to attend since he was ...


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