THELMA CRYER, INDIVIDUALLY AND ON BEHALF OF HER DECEASED FATHER, JOHN D. CRYER, SR.
TANGI PINES NURSING CENTER, ET AL.
Appeal from the 21st Judicial District Court In and for the
Parish of Tangipahoa State of Louisiana Trial Court Number
2016-0000505 Honorable Charlotte Foster, Judge Presiding
Johnson Baton Rouge, Louisiana Attorney for Plaintiff/
Appellant, Thelma Cryer.
Douglas R. Kraus New Orleans, Louisiana Attorney for
Defendants/ Appellees, Tangi Pines Nursing Center And Rebecca
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
an appeal from a trial court judgment granting a motion for
summary judgment in favor of the defendants/appellees. For
the reasons that follow, we reverse.
AND PROCEDURAL HISTORY
case involves a medical malpractice claim arising from the
death of John D. Cryer, Sr. on October 13, 2012, at North
Oaks Health System. His daughter, Thelma Cryer, individually
and on behalf of her deceased father, filed a petition for
damages against Tangi Pines Nursing Center, LLC, and Rebecca
Moore, Nursing Director of Tangi Pines Nursing
Center. Plaintiff's petition alleged that
prior to his death, Mr. Cryer resided at Tangi Pines Nursing
Center. According to the petition, at Ms. Cryer's
insistence, Mr. Cryer was transferred to Hood Memorial
Hospital, and ultimately North Oaks Health System. At North
Oaks, Mr. Cryer was diagnosed with severe dehydration,
malnutrition, a urinary tract infection, and was suffering
from sores, all of which plaintiff attributed to the lack of
care Mr. Cryer received from Tangi Pines Nursing Center and
Pines Nursing Center and Nurse Moore ("Defendants")
filed a motion for summary judgment asserting that plaintiff
had no expert to support her medical malpractice claims and
was therefore unable to satisfy her burden under La. R.S.
9:2794, on either breach of the standard of care or
causation. The record does not contain a copy of
plaintiff's opposition nor a transcript of the November
21, 2016 hearing on the motion for summary judgment. Included
in the record is an affidavit of Ronald Andrews, M.D., filed
on November 21, 2016. However, the court minutes from the
November 21, 2016 hearing date do not reflect that the
affidavit was filed in connection therewith, or admitted as
an exhibit at the hearing. After considering the law,
evidence, and oral arguments of counsel, the trial court
signed a final judgment on December 8, 2016, granting
defendants' motion for summary judgment, and dismissing
defendants, with prejudice, from the litigation.
filed a motion for new trial and sought to introduce a
supplemental affidavit of Dr. Andrews. Defendants opposed the
motion for new trial and moved to strike the amended
affidavit of Dr. Andrews. The motion for new trial came for
hearing on February 21, 2017, at which time the trial court
indicated that it had reviewed Dr. Andrews' supplemental
affidavit and found that it did not comply with La. R.S.
9:2794 in that it failed to establish a breach of the
standard of care, and was therefore
insufficient. The trial court denied the motion for new
trial, and signed a judgment in accordance therewith on March
6, 2017. Thereafter, plaintiff filed a motion for appeal from
the March 6, 2017 judgment, contending that the trial court
erred by granting defendants' motion for summary judgment
and denying plaintiff's motion for new trial, by finding
that neither the original nor the supplement affidavit of
plaintiff's expert, Dr. Andrews, comports with the formal
requirements of La. R.S. 9:2794.
outset, we note that in plaintiff's motion for appeal,
she appeals the denial of the motion for new trial, rather
than the granting of defendants' motion for summary
judgment. A judgment denying a motion for new trial is an
interlocutory order and is normally not appealable.
See La. Code Civ. R art. 2083(C). However, when a
motion for appeal refers by date to the judgment denying a
motion for new trial, but the circumstances indicate that the
appellant actually intended to appeal from the final judgment
on the merits, the appeal should be maintained as being taken
from the judgment on the merits. Byrd v. Pulmonary Care
Specialists, Inc., 2016-0485 (La.App. 1 Cir. 12/22/16),
209 So.3d 192, 195. In this case, it is clear from the sole
assignment of error that plaintiff sought to appeal from the
final judgment that granted summary judgment in favor of
defendants and dismissed them from the litigation.
Plaintiff's mistake in listing the date of the wrong
judgment in her motion for appeal is insufficient grounds for
the dismissal of the appeal, particularly since appeals are
favored and will be dismissed only when the grounds are free
from doubt. Id. Thus, the merits of the final
judgment of December 8, 2016, granting defendants' motion
for summary judgment, are properly before us.
an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as
to material fact and that the mover is entitled to judgment
as a matter of law. La. Code Civ. Pro. art. 966A(3). The
summary judgment procedure is favored and is designed to
secure the just, speedy, and inexpensive determination of
every action. La. Code Civ. Pro. art. 966A(2).
burden of proof is on the mover. La. Code Civ. Pro. art.
966D(1). Nevertheless, if the mover will not bear the burden
of proof at trial on the issue that is before the court on
the motion, the mover's burden does not require that all
essential elements of the adverse party's claim, action,
or defense be negated. Rather, the mover must point out to
the court that there is an absence of factual support for one
or more elements essential to the adverse party's claim,
action, or defense. Thereafter, the adverse party must
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. Code Civ. Pro.
art. 966D(1). If, however, the mover fails in his burden to
show an absence of factual support for one or more of the
elements of the adverse party's claim, the burden never
shifts to the ...