Arlene Squyres v. Our Lady of Lourdes Regional Medical Center, Inc.

• Court: Louisiana Court of Appeal
• Decided: August 16, 2006
• Docket: CA-0006-0744
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-744

ARLENE SQUYRES, ETC. VERSUS OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., ET AL.

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2004-5872 HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

********** GLENN B. GREMILLION JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Glenn B. Gremillion, Judges.

MOTION TO DISMISS APPEAL DENIED.

Terry L. Rowe Attorney at Law Post Office Box 3323 Lafayette, LA 70502 (337) 232-4744 COUNSEL FOR DEFENDANT/APPELLEE: Karen Kemzuro

Kenneth Warren DeJean Attorney at Law Post Office Box 4325 Lafayette, LA 70502 (337) 235-5294 COUNSEL FOR PLAINTIFF/APPELLANT: Arlene Squyres Patrick Manning Wartelle Roy, Bivins, Judice, & Henke Post Office Drawer Z Lafayette, LA 70502 (337) 233-7430 COUNSEL FOR DEFENDANTS/APPELLEES: Our Lady of Lourdes Regional Medical Center, Inc. Karen Kemzuro Monique Joseph Catherine Vaughtsteinmann GREMILLION, Judge.

The defendants-appellees, Our Lady of Lourdes Regional Medical

Center, Inc., Monique Joseph, and Catharine Vaughtsteinmann (movers), move

to dismiss the appeal of the plaintiff-appellant, Arlene Squyres, individually

and on behalf of the Estate of Joseph Squyres. For the reasons given below,

we deny the motion.

The plaintiff filed the instant medical malpractice action against Our

Lady of Lourdes Regional Medical Center, Inc.; Karen Kemzuro, L.P.N.;

Monique Joseph, L.P.N.; Catharine Vaughtsteinman, R.N.; and Dr. Barry J.

Henry. In the course of this litigation, the movers filed a motion for summary

judgment which the trial court granted. A judgment dismissing these parties

from this case was signed by the trial court on November 28, 2005, and notice

of the judgment was mailed by the clerk’s office on November 30, 2005. The

plaintiff filed a motion for a devolutive appeal from this judgment on

December 22, 2005, and the trial court signed the order granting the appeal on

January 3, 2006.

The record in this appeal was lodged in this court on June 9, 2006. On

June 24, 2006, the movers filed the instant motion to dismiss the plaintiff’s

appeal.

The movers argue that at the time that the plaintiff filed her motion for

appeal, the appeal was premature. Movers assert that the judgment appealed

was only a partial, final judgment pursuant to La.Code Civ.P. art. 1915 and that

the judgment was not designated as immediately appealable by the trial court

pursuant to paragraph B of this article. Moreover, the movers contend that

since the last remaining party defendant to this action was dismissed by a

judgment signed by the trial court on May 3, 2006, notice of which was sent 2 on May 9, 2006, the appeal delays have now run as to this judgment, and

therefore, the plaintiff cannot now file a timely appeal.

In pertinent part, La.Code Civ.P. art. 1915 reads:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:

(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

***

Furthermore, La.Code Civ.P. art. 1911 states:

Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.

Emphasis added.

The judgment at issue in the instant motion dismissed all claims plaintiff

had against movers, with prejudice. Pursuant to the above articles, the

judgment was immediately appealable without the necessity of a designation

by the trial court. Therefore, we hereby deny the motion to dismiss the appeal

at movers’ cost.