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
RESTORATIVE HOME HEALTH CARE, LLC Defendants-Appellees
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, 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.
VERLANDER By: David E. Verlander, III Counsel for Appellee,
Grant Dona, M.D.
WILLIAMS, PITMAN, STONE, McCALLUM, and THOMPSON, JJ.
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 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.
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
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
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, ...