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Cryer v. Tangi Pines Nursing Center

Court of Appeals of Louisiana, First Circuit

December 21, 2017

THELMA CRYER, INDIVIDUALLY AND ON BEHALF OF HER DECEASED FATHER, JOHN D. CRYER, SR.
v.
TANGI PINES NURSING CENTER, ET AL.

         On 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

          Willie 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 Moore, RN.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         This is 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.

         FACTS AND PROCEDURAL HISTORY

         This 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.[1] 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 Rebecca Moore.

         Tangi 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.

         Plaintiff 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.[2] 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.

         LAW AND DISCUSSION

         At the 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.

         After 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).

         The 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 ...


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