Patricia Bell v. Carencro Nursing Home, Inc., D/B/A Evangeline Oaks Guest House

• Court: Louisiana Court of Appeal
• Decided: June 1, 2016
• Docket: CA-0016-0190
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 16-190

PATRICIA BELL

VERSUS

CARENCRO NURSING HOME, INC. D/B/A EVANGELINE OAKS GUEST HOUSE

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20117362 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

SHANNON J. GREMILLION

JUDGE

Court composed of Judges Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty.

RULE RECALLED. APPEAL MAINTAINED. SUPPLEMENTAL RECORD ORDERED.

Troy Allen Broussard Allen & Gooch Post Office Box 81129 Lafayette, LA 70598-1129 (337) 291-1000 COUNSEL FOR DEFENDANT/APPELLEE: Carencro Nursing Home, Inc. d/b/a Evangeline Oaks Guest House Carolyn D. Deal DEAL LAW FIRM, LLC Post Office Box 12427 New Iberia, LA 70562-2427 (337) 414-0260 COUNSEL FOR PLAINTIFF/APPELLANT: Patricia Bell GREMILLION, Judge.

This court, ex proprio motu, issued a rule for the plaintiff-appellant, Patricia

Bell, to show cause, by brief only, why the appeal in this matter should not be

dismissed as premature, citing Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923

So.2d 780. The plaintiff filed a brief in response to this rule. For the reasons

assigned, we recall the rule to show cause, maintain the appeal, and order that the

appellate record be supplemented.

The trial court signed a judgment granting a motion for directed judgment

which dismissed the plaintiff’s suit on December 8, 2015. The plaintiff filed a

timely motion for new trial. Attached to the motion was an order to set the motion

for new trial for contradictory hearing. However, the trial court drew a line

through the proposed order for the show cause hearing and wrote the word

“Denied” across the face of the proposed order. The order was dated and signed

by the trial court.

Finding that the facts of this case mirrored those presented to this court in

Egle, 923 So.2d 780, this court issued the instant rule to show cause why the

appeal should not be dismissed as premature. In Egle this court held that the

writing of the word “denied” across the face of the rule to set the motion for new

trial for contradictory hearing was not a judgment denying the motion for new trial.

Thus, without a proper judgment denying the motion for new trial or a hearing at

which the motion is denied in open court, this court found that an appeal is

premature pursuant to La.Code Civ.P. arts. 2087(D) and 2123 (C), which state that

an appeal taken before the court properly disposes of any motion for new trial or

motion for judgment notwithstanding the verdict is premature. In response to the instant rule to show cause, the plaintiff asserts that the trial

court signed a proper judgment denying the motion for new trial on April 13, 2016.

Therefore, the plaintiff asks that this court maintain the appeal because the defect

has now been cured.

This court has held that, in instances such as this, when the procedural defect

is cured, the appeal should be maintained. See Richard v. Lafayette Fire and

Police Bd., 07-1010 (La.App. 3 Cir. 9/19/07), 966 So.2d 685. As was the outcome

in Richard, we hereby recall the rule to show cause, maintain the appeal, and order

the Office of the Clerk of Court for the Fifteenth Judicial District Court, Parish of

Lafayette, to file a supplemental record, in duplicate, with this court that contains

the judgment of April 13, 2016, which denied the motion for new trial.

RULE RECALLED. APPEAL MAINTAINED. SUPPLEMENTAL RECORD ORDERED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.