Tasha Payne v. St. Bernard Parish Hospital Service District

• Court: Louisiana Court of Appeal
• Decided: October 13, 2021
• Docket: 2021-CA-0135
• Status: Published

Opinion

TASHA PAYNE, ET AL. * NO. 2021-CA-0135

VERSUS * COURT OF APPEAL ST. BERNARD PARISH * HOSPITAL SERVICE FOURTH CIRCUIT DISTRICT, ET AL. * STATE OF LOUISIANA *******

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 20-0040, DIVISION “A” Honorable Robert J. Klees, Judge Pro Tempore ****** Judge Edwin A. Lombard ****** (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)

John A. Venezia Julie O'Shesky VENEZIA & ASSOCIATES 757 St. Charles Ave., Suite 302 New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANTS

Carl E. Hellmers, III Stephanie D. O'Brien FRILOT L.L.C. 3700 Energy Centre 1100 Poydras Street New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER MEDICAL CENTER-WESTBANK, LLC Paul A. Tabary, III Elizabeth R. Borne TABARY & BORNE, L.L.C. 3 Courthouse Square Chalmette, LA 70043

COUNSEL FOR DEFENDANT/APPELLEE, ST. BERNARD PARISH HOSPITAL SERVICE DISTRICT

APPEAL DISMISSED WITHOUT PREJUDICE AND REMANDED

OCTOBER 13, 2021 EAL

RLB

RML The Appellants, Tasha Payne, Lawrent Payne, Parson Payne and Talia

Payne, seek review of the January 5, 2021 judgment of the district court, granting

the respective motions for summary judgment of Appellees, St. Bernard Parish

Hospital Service District and Ochsner Medical Clinic-Westbank. Finding that the

judgment sought to be reviewed is unappealable, we dismiss the instant appeal

without prejudice and remand this matter to the district court for further

proceedings.

“An appellate court has a duty to determine, sua sponte, whether it has

proper jurisdiction to consider the merits of an appeal filed in the court.” Reaney-

Gates v. Mendoza, 19-0912, p. 3 (La. App. 4 Cir. 2/19/20), 293 So. 3d 77, 79

(citing Moon v. City of New Orleans, 15-1092, p. 5 (La.App. 4 Cir. 3/16/16), 190

So.3d 422, 425). The merits of an appeal cannot be reached by an appellate court

unless its jurisdiction is properly invoked by a valid final judgment. Id. A valid

final judgment does not exist in the instant appeal.

On December 3, 2020, Judge Robert Klees, judge pro tempore, presided

over the hearing of the Appellees’ respective motions for summary judgment.

1 However, the January 5, 2021 judgment, granting the motions, was rendered by

Judge William McGoey. A fatal defect exists when a judgment is rendered by a

non-presiding judge and the resulting judgment cannot be considered a final

appealable judgment under La. Code Civ. Proc. art. 1911. Reaney-Gates, 19-0912,

pp. 3-4, 293 So. 3d 77, 79-80.1

La. Code Civ. Proc. art. 1911, entitled Final judgment; partial final

judgment; signing; appeals provides:

A. Except as otherwise provided by law, every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge. Any judgment that does not contain the typewritten or printed name of the judge shall not be invalidated for that reason. Judgments may be signed by the judge by use of electronic signature. The various courts shall provide by court rule for the method of electronic signature to be used and to ensure the authenticity of the electronic signature.

B. 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.

Article 1911 has been interpreted to require that all final judgments shall be

rendered by the same judge who presided over the case and that a final judgment

does not exist until this occurs:

Louisiana Code of Civil Procedure article 1911 requires that every final judgment shall be signed by the judge,

1 “This is not an informality that may be corrected by the trial court under La. C.C.P. art. 2088(A)(4), rather it is a fatal defect.” Reaney-Gates, 19-0912, p. 4, 293 So. 3d 77, 80 (citing Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So.2d 892, 895 (La.App. 5th Cir. 1992).

2 except as otherwise provided by law. This has been interpreted to mean that the judge before whom the case was tried must sign the judgment. Employers Nat. Ins. Co. v. Workers’ Comp. Second Injury Bd., 95-1756, p. 3 (La. App. 1st Cir. 4/4/96), 672 So. 2d 309, 311. A judgment signed by a judge, other than the one which presided over the hearing, is invalid. See Louisiana Paving, Co., Inc. v. St. Charles Parish Public Schools, 593 So. 2d 892 (La. App. 5th Cir. 1/29/92) and Ledoux v. Southern Farm Bureau Casualty Insurance Company, 337 So. 2d 906 (La. App. 3rd Cir. 9/29/76).

Moreover, a judgment signed by a judge who did not preside over the trial is fatally defective and does not constitute a final judgment over which this court can exercise appellate jurisdiction. Until the judge who conducted the trial signs the judgment, there is no final judgment. State in Interest of I.K., 18-0406, p. 4 (La. App. 1st Cir. 9/21/18), 257 So. 3d 694, 696-697.

In re M.L.M., 19-1030, pp. 3-4 (La. App. 1 Cir. 4/23/20), 300 So. 3d 902, 905.

Considering that a fatal defect exists in the matter sub judice and

the judgment signed by Judge McGoey is an invalid and unappealable judgment,

we find that this Court lacks jurisdiction to consider the merits of this appeal. Thus,

we remand this matter to the district court for further proceedings.

DECREE

For the foregoing reasons, we dismiss this appeal without prejudice and

remand this matter to the district court for further proceedings.