Camille Landry v. P.S.A of Lafayette

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-277

CAMILLE LANDRY, ET AL.

VERSUS

PSA OF LAFAYETTE, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20045188
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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JIMMIE C. PETERS

JUDGE

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Court composed of Judges Jimmie C. Peters, James T. Genovese, and John E.
Conery.

MOTION TO DISMISS DENIED.

Eve Barrie Masinter
Breazeale, Sachse & Wilson
909 Poydras, Suite 1500
New Orleans, LA 70112-4004
(504) 619-1800
COUNSEL FOR DEFENDANT/APPELLEE:
Pediatric Services of America, Inc.

William Winfield Stagg
Ryan M. Goudelocke
Durio, McGoffin & Stagg
Post Office Box 51308
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Women’s and Children’s Hospital, Inc.

Roy Clifton Cheatwood
Monica Ann Frois
Brandy N. Sheely
Baker Donelson Bearman Caldwell & Berkowitz, P.C.
201 St. Charles Ave., #3600
New Orleans, LA 70170
(504) 566-5200
COUNSEL FOR DEFENDANT/APPELLEE:
Pediatric Services of America, Inc.

John Layne Hammons
Annis Cornell Rushing Flournoy
Chaile Allen
Nelson & Hammons, A.P.L.C.
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Ryan D. Landry, et al.

John Michael Veron
J. Rock Palermo, III
Veron, Bice, Palermo & Wilson, L.L.C.
Post Office Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR DEFENDANTS/APPELLEES:
Monica Ann Frois
Pediatric Services of America, Inc.

Marc W. Judice
James J. Hautot, Jr.
Judice & Adley
Post Office Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR DEFENDANTS/APPELLEES:
Dr. Cong T. Vo
Dr. Rosarie Josseline Belizaire

James Paul Lambert
Post Office Box 53083
Lafayette, LA 70505-3083
(337) 261-3737
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Camille Landry, et al.

Stewart Earl Niles, Jr.
Michelle Anne Bourque
Niles, Bourque & Fontana, LLC
909 Poydras St., 35th Floor
New Orleans, LA 70112
(504) 310-8550
COUNSEL FOR DEFENDANT/APPELLEE:
The Administrators of the Tulane Educational Fund

Daniel G. Brenner
Eric John Miller
R. Preston Mansour, Jr.
Bolen, Parker & Brenner
Post Office Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANTS/APPELLEES:
Daniel G. Brenner
R. Preston Mansour, Jr.

Nadia Marie de la Houssaye
Jones, Walker, Waechter, Poitenvent, Carrère & Denègre, L.L.P.
Post Office Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
COUNSEL FOR DEFENDANTS/APPELLEES:
Dr. Vasanth Nalam
Louisiana Patients CompensationFund

PETERS, Judge.

Plaintiffs-Appellants, Camille Landry, individually and on behalf of her

minor child, Tai Landry, and Ryan Landry, individually and on behalf of his minor

child, Tai Landry, filed a ―Joint Motion to Dismiss Appeals and All Claims

Against Dr. Cong T. Vo, Dr. Rosaire Josseline Belizaire, Dr. Vasanth Nalam and

the Louisiana Patient’s Compensation Fund.‖ The defendant-appellee, Pediatric

Services of America, Inc. (PSA), has filed an opposition memorandum in response

to the plaintiffs’ limited motion to dismiss. For the reasons expressed below, we

deny the opposed motion.

On November 7, 2012, this court issued its original opinion in this appeal,

and its opinion on rehearing in this appeal was issued on March 20, 2013. A writ

application was filed by plaintiffs with the Louisiana Supreme Court, which is

currently pending. That court issued a stay of all appellate proceedings in this case

pending the trial court’s ruling on the plaintiffs’ nullity action which was filed by

the plaintiffs in the trial court and which is currently pending in that court.

However, the plaintiffs filed a motion with the supreme court asking that the stay

be lifted for the limited purpose of dismissing the plaintiffs’ claims against the

defendants mentioned in the motion sub judice, which motion to lift stay was

granted by the supreme court for this limited purpose. Thus, plaintiffs filed their

motion asking that this court dismiss their claims against the named defendants,

specifically reserving their claims against PSA.

Uniform Rules—Courts of Appeal, Rule 2–8.3 provides, ―Any appeal may

be summarily dismissed or remanded by order of the court where there has been a

joint motion filed by all interested parties or their counsel of record, which shall set

forth the reason for such action and which shall be supported by appropriate

affidavits that the facts alleged are true and correct.‖ Uniform Rules—Courts of

Appeal, Rule 2–8.4 reads, ―Where there has been no timely answer to the appeal,

or other formal action to amend or modify the judgment appealed, the appellant

may, by ex parte motion, have the appeal dismissed, with leave of court.‖

As stated above, this court has already issued an original opinion in this

matter and also an opinion on rehearing. Clearly, Uniform Rules—Courts of

Appeal, Rule 2–8.4 has no application in this instance. The subject motion was

filed by counsel for plaintiffs. No affidavit was attached to this motion. Counsel

for PSA has filed an opposition to this motion to dismiss; therefore, PSA obviously

does not acquiesce in this motion. Uniform Rules—Courts of Appeal, Rule 2–8.3

requires that the joint motion must be filed ―by all interested parties or their

counsel of record‖ and requires that the motion ―shall be supported by appropriate

affidavits that the facts alleged are true and correct.‖ We find that plaintiffs have

failed to comply with Rule 2–8.3. Therefore, we deny the motion.

MOTION TO DISMISS DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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