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Reed v. Restorative Home Health Care, LLC

Court of Appeals of Louisiana, Second Circuit

November 14, 2019

BEVERLY REED, LISA REED, RICKY REED, KENT REED, PATRICIA ANDING, KIRBY REED, LARRY REED, ELIJAH REED AS THE SURVIVING CHILDREN OF LELA KINDLE Plaintiffs-Appellants
v.
RESTORATIVE HOME HEALTH CARE, LLC Defendants-Appellees

          On Rehearing Originally Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20151589 Honorable Alvin Rue Sharp, Judge

          SIMIEN & SIMIEN, L.L.C. By: Eulis Simien, Jr. Jimmy Simien Mark W. Simien Counsel for Appellants.

          DUPLASS, ZWAIN, BOURGEOIS, PFISTER, WEINSTOCK, & BOGART By: C. Michael Pfister, Jr. Linda A. Hewlett Lane L. Macaluso Counsel for Appellee, Restorative Home Health Care, LLC.

          NELSON, ZENTNER, SARTOR & SNELLINGS, L.L.C By: F. Williams Sartor, Jr. Counsel for Appellee, Frank Sartor, M.D.

          NELSON, ZENTNER, SARTOR & SNELLINGS, L.L.C By: David H. Nelson Counsel for Appellees, St. Francis Medical Center and Charles Simmons, M.D.

          MCLEOD VERLANDER By: David E. Verlander, III Counsel for Appellee, Grant Dona, M.D.

          Before WILLIAMS, PITMAN, STONE, McCALLUM, and THOMPSON, JJ.

          THOMPSON, J.

         This is a medical malpractice action in which the trial court granted motions for summary judgment in favor of Defendants-Appellees, Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C.. That ruling was appealed by Plaintiff-Appellants, Beverly Reed, Lisa Reed, Ricky Reed, Kent Reed, Patricia Anding, Kirby Reed, Larry Reed, and Elijah Reed, as the surviving children of Lela Kindle. This Court originally reversed that decision. Reed v. Restorative Home Health Care, LLC, 52, 645 (La.App. 2 Cir. 06/05/19), __ So. 3d, __ 2019 WL 2363333. Defendant-Appellees, Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C., sought and this Court granted rehearing. For the reasons set forth below we now AFFIRM the judgment of the trial court dismissing the claims against Dr. Frank Sartor, Dr. Grant Dona, and Restorative Home Health Care, L.L.C.

         ISSUE PRESENTED

         The issue presented is whether it is within the discretion of the trial court, when granting a continuance of a hearing on a motion for summary judgment, to limit or modify the statutory provisions of deadlines for filing oppositions thereto as provided in La. C.C.P. art. 966. Here, the trial court set an original hearing date for the motions for summary judgment in January 2018. Soon thereafter, an additional motion for summary judgment was filed by a different defendant and all motions for summary judgment were upset and set to a new date in March 2018. Thereafter, the hearing date was continued again to May 2018 with the expressed limited purpose to allow for oral arguments only. The trial court ordered the record closed for the purposes of discovery and filing oppositions, and a specific written judgment was issued by the trial court to that effect. After the trial court order closing the record, but prior to the May 2018 oral argument date, Plaintiffs sought to "substitute" a document in the record as a part of its opposition to the pending motions. The trial court denied the request noting the record had been closed earlier when the new oral argument date had been fixed. At the May 2018 hearing, the trial court granted the motions for summary judgment in favor of defendants. This appeal followed and is before this panel on rehearing.

         ASSIGNMENTS OF ERROR

         Plaintiffs-Appellants assert the following three assignments of error:

1) The trial court erred in failing to allow the substitution of the signed affidavit for the previously filed unsigned affidavit when the trial court granted the motion to continue the hearings on the motions for summary judgment and the motion to continue had been filed prior to the expiration of the opposition filing deadline and the substituted affidavit was filed at least fifteen days prior to the new hearings date.
2) The trial court erred in failing to consider the properly signed affidavit that was submitted at least fifteen (15) days prior to the rescheduled hearings on the motions for summary judgment when the hearings were rescheduled based on a motion to continue the hearings that was filed prior to the original opposition deadline and that motion was granted because counsel for the plaintiffs had a previously scheduled trial.
3) The trial court erred in failing to consider the original affidavit filed in opposition to the motions for summary judgment when the attestation of the notary established that the affiant had sworn to the facts stated in the affidavit because, despite this attestation, ...

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