Pamela Levine v. Christian Villa Nursing Home

• Court: Louisiana Court of Appeal
• Decided: September 2, 2009
• Docket: CA-0009-0876
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-876

PAMELA LEVINE, ET AL. VERSUS CHRISTIAN VILLA NURSING HOME, ET AL.

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 86,494 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

********** OSWALD A. DECUIR JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C. Peters, Judges.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

Jeremy D. Goux Wynne, Goux & Lobello 417 North Theard Street Covington, LA 70433 (985) 898-0504 COUNSEL FOR DEFENDANT/APPELLANT: Seventh District Missionary Baptist Association d/b/a Christian Villa Nursing Home

Scott D. Webre Attorney at Law 556 Jefferson Street Jefferson Towers, Suite 500 Lafayette, LA 70501 (337) 593-4178 COUNSEL FOR PLAINTIFF/APPELLEE: Pamela Levine DECUIR, Judge.

On July 30, 2009, this court issued a rule sua sponte ordering the

appellant to show cause, by brief only, why the instant appeal should not be

dismissed as having been taken from a non-appealable, interlocutory order

denying an exception of prescription. For the reasons assigned below, we

dismiss the appeal.

The plaintiff-appellee, Pamela Levine, filed a wrongful death and

survival action for the death of her father, Wilmer Levine, following an

incident that occurred while he was in the care of Christian Villa Nursing

Home. The defendant-appellant, Seventh District Missionary Baptist

Association d/b/a Christian Villa Nursing Home, filed an exception of

prescription that was denied by the trial court in open court on May 18, 2009.

The trial court signed the written judgment on June 17, 2009. The appellant

filed its motion for appeal on May 26, 2009. On May 27, 2009, the trial court

granted the appeal. The record in this appeal was lodged on July 23, 2009. As

stated above, on July 30, 2009, this court issued a rule for the appellant to

show cause why the appeal should not be dismissed.

We find that the ruling at issue, denying an exception of prescription, is

an interlocutory ruling that is not appealable. The proper procedural device for

seeking appellate review is an application for supervisory writs. McDonald v.

Zapata Protein (USA), Inc., 97-10 (La.App. 3 Cir. 4/30/97), 693 So.2d 296.

La.Code Civ.P. art. 1841. Therefore, we hereby dismiss the appeal at

appellant’s cost.

However, we find that since the appellant filed a motion for an appeal

within the time delays for seeking supervisory writs, justice demands that we

1 afford the appellant time within which to file a supervisory writ application

with this court. Accordingly, the appellant is hereby permitted to file a proper

application for supervisory writ in compliance with Uniform Rules—Courts

of Appeal, Rule 4, no later than October 1, 2009. The appellant is not required

to file a notice of intent to seek writs nor obtain an order setting a return date

pursuant to Uniform Rules—Courts of Appeal, Rule 4–3, as we hereby

construe the motion for appeal as a timely filed notice of intent to seek a

supervisory writ.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.