Curtis Leday v. Dr. Albert Lee

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 14-75

CURTIS LEDAY

VERSUS

DR. ALBERT LEE, ET AL.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2010-4722 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Shannon J. Gremillion, Judges.

MOTION TO DISMISS APPEAL DENIED.

John Layne Hammons Nelson & Hammons 705 Milam Street Shreveport, LA 71101 (318) 227-2401 COUNSEL FOR PLAINTIFFS/APPELLEES: Curtis Leday, et al.

Patrick Manning Wartelle Leake & Anderson Post Office Drawer Z Lafayette, LA 70502 (337) 233-7430 COUNSEL FOR DEFENDANTS/ APPELLANTS: W. O. Moss Regional Hospital Dr. Albert Lee

Benjamin Joseph Guilbeau Stockwell, Sievert, Viccellio Post Office Box 2900 Lake Charles, LA 70602-2900 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: Dr. William R. Condos, Jr.

COOKS, Judge.

Plaintiffs-Appellees, Curtis Leday, Alfred Leday, Lenora Leday Gobert, Janice Leday Davis, Elaine Guillory, Ernest E. Williams, and Theo Edwards, move to dismiss this appeal. For the reasons given herein, we deny the motion.

Plaintiffs are the seven surviving siblings of Edmond Leday, who died on March 16, 2007, allegedly as the result of substandard medical treatment rendered by Defendants, Albert Lee, M.D., and W. O. Moss Regional Medical Center. Plaintiffs filed a motion for summary judgment on the issues of liability and damages. On August 1, 2013, the trial court signed a judgment granting Plaintiffs’ motion for summary judgment and ordering Defendants to pay damages to Plaintiffs. The notice of judgment was mailed on August 19, 2013.

On August 27, 2013, Defendants filed a motion for new trial, and a hearing was held on that motion on September 26, 2013. October 1, 2013, the trial court signed a judgment denying Defendants’ motion for new trial. The notice of judgment was mailed on October 10, 2013.

On October 15, 2013, Defendants filed a motion for suspensive appeal, and the order of appeal was signed on October 22, 2013. The appeal was lodged in this court on January 16, 2014.

At this time, Plaintiffs have filed the instant motion to dismiss the appeal. Plaintiffs note that in the motion for appeal, Defendants state that the judgment which they are appealing is the October 1, 2013, judgment denying Defendants’ motion for new trial. Plaintiffs contend that Defendants elected to appeal only the judgment denying the motion for new trial. Plaintiffs argue that since Defendants chose not to appeal the underlying judgment granting Plaintiffs’ motion for summary judgment, the delay for devolutively appealing the summary judgment *2 expired on December 1, 2013. Therefore, Plaintiffs assert that the summary judgment rendered on August 1, 2013, is now final and executory, thus rendering Defendants’ appeal of the judgment denying the motion for new trial moot.

In their memorandum in opposition to the motion to dismiss the appeal, Defendants state that they timely took an appeal from the judgment granting Plaintiffs motion for summary judgment. Defendants acknowledge that in their motion for appeal, they inadvertently listed the judgment denying their motion for new trial instead of the underlying judgment granting Plaintiffs’ motion for summary judgment. Defendants contend that the fact they ordered the entire transcript of the record, including the transcript of the hearing on the motion for summary judgment, for the appeal shows that they intended to appeal the summary judgment rendered on August 1, 2013. Also, Defendants maintain that their intent to appeal the August 1, 2013, summary judgment is further demonstrated by the fact that their appellate brief raises issues challenging various aspects of the judgment granting the motion for summary judgment.

We note that in cases in which the motion for appeal states that the appeal is being taken only from the judgment on a motion for new trial but the appellant exhibits the intent to appeal the judgment on the merits, this court has held that the appeal can, nonetheless, be considered as an appeal of the judgment on the merits. See McClure v. City of Pineville, 05-1460 (La.App. 3 Cir. 12/6/06), 944 So.2d 805, writ denied, 07-0043 (La. 3/9/07); Thompson v. Nationwide Mut. Ins. Co., 95-258 (La.App. 3 Cir. 10/4/95), 663 So.2d 191. In the instant case, we find that although Defendants stated in their motion for appeal that they were appealing the judgment denying the motion for new trial, the arguments raised in Defendants’ appellate brief demonstrate that Defendants intended to appeal the underlying summary *3 judgment granted on the merits of the case. Therefore, we hereby deny Plaintiffs’ motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.

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