JOHN E. CONERY, Judge.
Bau N. Pham, Jr. (Nathan Pham) sought, and was granted, a timely devolutive appeal of the trial court's October 20, 2014 judgment.
The remaining parties to this litigation have claims which are presently pending before the trial court. These include the claim made pursuant to the Louisiana Unfair Trade Practices Act (LUTPA) by the Estate of Chi Pham (Estate) for which her husband Bau N. Pham (Mr. Pham) serves as succession representative, Mr. Pham's individual claim for improvements to the office building, and the Chipham Corporation's (Chipham) contract claims.
The late Dr. Chi Pham (Dr. Pham) was a practicing physician in the Lafayette, Louisiana area. Dr. Pham operated her practice through Chipham, a Louisiana corporation formed by her. Chipham owned the physical assets of her medical practice.
In 2012, Dr. Pham became unable to continue her medical practice due to illness. In order to continue to fulfill her responsibilities under both federal and state law with respect to patient's medical records, Chipham, acting through Dr. Pham, began negotiations with defendant Southwest Medical Center Multi-Specialty Group, L.L.C. (SWMG), now The Regional Health System of Acadiana, L.L.C. (Regional). These negotiations resulted in a "Non-Binding Memorandum of Understanding" (MOU) dated August 6, 2012, between SWMG and "THE PHAM PRACTICE ENTITY." Due to his wife's health, Mr. Pham participated in the negotiations, although he was not a party to the MOU.
The MOU outlined a proposal for SWMG to purchase certain assets of Dr. Pham/Chipham's medical practice. The proposal included terms and conditions for lease of the building, the purchase of assets, and the possibility of employment of Dr. Pham when she was well enough to resume her medical practice.
In conjunction with the MOU, on August 14, 2014, Chipham, acting through Dr. Pham, signed the "First Medical Records Transfer Agreement" with SWMG. This document transferred responsibility for Dr. Pham's medical records held by Chipham to SWMG. In order to complete the transfer, SWMG was provided with keys to Chipham's office building and the access codes to the electronic medical records.
However, negotiations between SWMG and Dr. Pham/Chipham failed. On August 31, 2012, no final agreement had been reached between the parties, and a decision was made to rescind the initial "Medical Records Transfer Agreement." On September 12, 2012, the parties signed a "Medical Records Transfer Agreement Rescission." In conjunction therewith, also on September 12, 2012, SWMG returned full control and responsibility for the medical records to Chipham. SWMG also returned the key to the Chipham building, thereby terminating SWMG's access to the medical records.
Despite the problem with the medical records, the parties continued to negotiate. On October 16, 2012, a "Second Medical Records Transfer Agreement" (SMRTA) was executed between Dr. Pham, on behalf of Chipham, and SWMG. The SMRTA remains in effect to this date. On November 28, 2012, Dr. Pham's patients were notified that Dr. Pham was no longer practicing medicine and of the change in the custody of the records as required and allowed by the terms of the SMRTA. No other correspondence was sent to Dr. Pham's patients by SWMG.
The negotiations continued between Dr. Pham via Chipham and SWMG for the purchase of the assets, lease of the building, and employment of Dr. Pham. SWMG sent an offer to Dr. Pham on September 10, 2012, and a revised offer on October 3, 2012, but neither was accepted. Unfortunately, prior to the acceptance of any offer from SWMG, Dr. Pham committed suicide. Despite the efforts of Mr. Pham to finalize the negotiations, they were formally discontinued by SWMG on April 29, 2013. On May 2, 2013, Mr. Pham properly dissolved Chipham.
On November 19, 2013, Mr. Pham and the Estate filed a petition for damages against Hospital Corporation of America (HCA) and Regional. The original petition alleged claims pursuant to LUTPA, breach of contract, tort, and the quasi-offense of unjust enrichment.
On January 13, 2014, a first amended petition was filed in the suit, which added Nathan Pham as a plaintiff, and removed HCA as a defendant, and added Hospital of America Physician's Services (HOAPS) as a defendant. A second amended petition was filed on March 7, 2014, which named SWMG as a defendant.
In response to these petitions, the defendants filed exceptions of lack of procedural capacity, no right of action, and no cause of action, wherein they excepted to the plaintiffs' capacity to bring claims on behalf of the dissolved Chipham.
Mr. Pham subsequently opened a succession proceeding and sought reinstatement of Chipham. On May 20, 2014, the trial court granted an exparte motion for reinstatement of Chipham, "retroactive to the date of dissolution, without prejudice to the rights of any parties which were acquired during the interim period of dissolution." This prompted the filing of a third amended petition, adding Chipham as a plaintiff.
The defendants renewed their original exceptions of lack of procedural capacity, no right of action, no cause of action, and added the peremptory exception of preemption. The trial court heard all of the defendants' exceptions on August 25, 2014, and they were taken under advisement. However, in a minute entry issued on the same date, the trial court dismissed "all causes of action in all petitions" made by Nathan Pham. This constituted a final judgment as to Nathan Pham's claims, which was signed by the trial court on October 20, 2014, and is the subject of this appeal. For the following reasons, we affirm.
Nathan Pham asserts the following errors on appeal:
Nathan Pham's first assignment of error is based on the trial court's finding that he had no right of action or cause of action for his breach of contract or quasi-offense claims against the defendants "outside the Estate of Chi Pham."
The third circuit case of Boyer v. Stric-Lan Companies Corp., 04-872 p. 5-6 (La.App. 3 Cir. 11/10/04), 888 So.2d 1037, 1041, discussed the peremptory exception of no right of action and stated:
Nathan Pham maintains that he is entitled to bring his claims under La.Civ. Code art. 2315.1, which provides:
In McGee v. A C and S, Inc., 05-1036, p. 14 (La. 7/10/06), 933 So.2d 770, 780, the Louisiana Supreme Court explained the purpose and extent of recovery in a survival action:
In this case, the death of Dr. Pham was not the result of an offense or quasi-offense by the defendants, as she died by her own hand. Nevertheless, any claim that Dr. Pham may have had prior to her death in connection with the negotiations between the defendants has been asserted by Mr. Pham as succession representative. Mr. Pham opened the succession of Dr. Pham and was appointed as succession representative of the Estate. The Estate remains a party to this litigation.
Nathan Pham seeks to bring the same claims urged by the Estate as a representative of his mother, Dr. Pham. However, La.Code Civ.P. art. 685 controls and provides:
"[Louisiana Code of Civil Procedure] Article 685 has been declared to be the controlling provision of law as to whether a succession representative or an heir/legatee is able to enforce rights of the succession." Boyer, 888 So.2d at 1042.
Thus, the trial court correctly ruled in its August 25, 2014 minute entry that Nathan Pham's claims for breach of contract and quasi-offense could not "be maintained outside the Estate of Chi Pham." A final judgment dismissing all of Nathan Pham's causes of action was signed by the trial court on October 20, 2014. We agree with the trial court's decision and find the first assignment of error is without merit.
In Nathan Pham's second assignment of error, he claims that the trial court erred in dismissing his LUTPA claim on the basis of its one-year preemptive period. Nathan Pham argues that his claim was timely filed within one year of the defendants' actions of breaching their agreement with Dr. Pham and her husband on April 29, 2013.
We need not address the issue raised by Nathan Pham in his second assignment of error, as the trial court's judgment of October 20, 2014, states that the Estate's claim, pursuant to the LUTPA, is still pending before the trial court:
(Second emphasis added.)
Nathan Pham likewise does not have a right of action to bring a claim based on the provisions of the LUTPA. Mr. Pham, the named succession representative for the Estate, pursuant to La.Code Civ.P art. 685, is the proper party to maintain any LUTPA claim that Dr. Pham may have had at the time of her death. Thus, Nathan Pham's second assignment of error is also without merit.
For the foregoing reasons, we affirm the trial court's judgment dismissing all causes of action alleged by Bau N. Pham, Jr. in this litigation. Costs of this appeal are assessed to Bau N. Pham, Jr.