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In re Interdiction of Zimmer

Court of Appeals of Louisiana, Fourth Circuit

March 14, 2018

THE INTERDICTION OF MATTIE ZIMMER

         APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2017-00426, DIVISION "B" Honorable Jeanne Nunez Juneau, Judge

          Timothy Thriffiley PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C. ATTORNEYS AT LAW COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD ZIMMER.

          Alan G. Bouerie Alan G. Bouterie, Jr. Melanie M. Licciardi BOUTERIE LAW FIRM, APLC COUNSEL FOR DEFENDANT/APPELLEE, JAMIE-LANDRY ZIMMER.

          Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dennis R. Bagneris, Pro Tempore

          Dennis R. Bagneris, Pro Tempore Judge.

         Appellant, Richard Zimmer, appeals the dismissal of his Petition for Intervention in the interdiction proceedings concerning his 18-year old daughter, Mattie Zimmer. He also appeals the district court's denial of his motion to stay the interdiction proceedings pending resolution of this appeal. For the reasons that follow, we find that the judgment of the district court should be reversed, and this matter remanded to district court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Appellant, Richard Zimmer ("Mr. Zimmer"), is the father of 18-year old Mattie Zimmer ("Mattie"). His former wife, Jamie Landry-Zimmer ("Ms. Landry-Zimmer"), is Mattie's mother. Upon Mattie's turning 18 years of age, Ms. Landry-Zimmer filed a Petition for Interdiction seeking Mattie's interdiction due to medical issues.

         Attorney David Gernhauser was appointed curator ad hoc to represent Mattie in the interdiction pursuant to La. C.C.P. article 4544, and Mr. Zimmer received notice of the proceedings pursuant to La. C.C.P. article 4543.

         Following receipt of that notice, Mr. Zimmer filed a Petition for Intervention objecting to the interdiction of Mattie, and alternatively praying that he be appointed as curator for Mattie, or in the further alternative, as undercurator. Ms. Landry-Zimmer filed peremptory exceptions of no cause of action and no right of action to the Intervention. Prior to the hearing on the exceptions, Ms. Landry-Zimmer voluntarily dismissed her exception of no right of action. After a hearing on the exception of no cause of action, the district court maintained that exception and dismissed Mr. Zimmer's Petition for Intervention.

         Mr. Zimmer filed a timely Motion for Devolutive Appeal, appealing the judgment dismissing his Petition for Intervention, and requesting a stay of the district court proceedings pending his appeal. The district court granted the devolutive appeal and denied the stay. The instant appeal was timely filed.[1]

         On appeal, Mr. Zimmer asserts three assignments of error, namely:

1) The district court committed manifest legal error when it sustained Ms. Landry-Zimmer's exception of no cause of action and dismissed Mr. Zimmer's Petition for Intervention;
2) The district court abused its discretion and committed manifest error in refusing to allow the Appellant to amend his Petition for Intervention to remove the grounds for the exception of no cause of action; and
3) The district court abused its discretion in refusing to stay the district court ...

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