Curtis Leday v. Dr. Albert Lee

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-75

CURTIS LEDAY

VERSUS

DR. ALBERT LEE, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2010-4722
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Shannon J. Gremillion,
Judges.

MOTION TO DISMISS APPEAL DENIED.

John Layne Hammons
Nelson & Hammons
705 Milam Street
Shreveport, LA 71101
(318) 227-2401
COUNSEL FOR PLAINTIFFS/APPELLEES:
Curtis Leday, et al.

Patrick Manning Wartelle
Leake & Anderson
Post Office Drawer Z
Lafayette, LA 70502
(337) 233-7430
COUNSEL FOR DEFENDANTS/ APPELLANTS:
W. O. Moss Regional Hospital
Dr. Albert Lee

Benjamin Joseph Guilbeau
Stockwell, Sievert, Viccellio
Post Office Box 2900
Lake Charles, LA 70602-2900
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. William R. Condos, Jr.

COOKS, Judge.

Plaintiffs-Appellees, Curtis Leday, Alfred Leday, Lenora Leday Gobert,

Janice Leday Davis, Elaine Guillory, Ernest E. Williams, and Theo Edwards, move

to dismiss this appeal. For the reasons given herein, we deny the motion.

Plaintiffs are the seven surviving siblings of Edmond Leday, who died on

March 16, 2007, allegedly as the result of substandard medical treatment rendered

by Defendants, Albert Lee, M.D., and W. O. Moss Regional Medical Center.

Plaintiffs filed a motion for summary judgment on the issues of liability and

damages. On August 1, 2013, the trial court signed a judgment granting Plaintiffs’

motion for summary judgment and ordering Defendants to pay damages to

Plaintiffs. The notice of judgment was mailed on August 19, 2013.

On August 27, 2013, Defendants filed a motion for new trial, and a hearing

was held on that motion on September 26, 2013. October 1, 2013, the trial court

signed a judgment denying Defendants’ motion for new trial. The notice of

judgment was mailed on October 10, 2013.

On October 15, 2013, Defendants filed a motion for suspensive appeal, and

the order of appeal was signed on October 22, 2013. The appeal was lodged in this

court on January 16, 2014.

At this time, Plaintiffs have filed the instant motion to dismiss the appeal.

Plaintiffs note that in the motion for appeal, Defendants state that the judgment

which they are appealing is the October 1, 2013, judgment denying Defendants’

motion for new trial. Plaintiffs contend that Defendants elected to appeal only the

judgment denying the motion for new trial. Plaintiffs argue that since Defendants

chose not to appeal the underlying judgment granting Plaintiffs’ motion for

summary judgment, the delay for devolutively appealing the summary judgment

expired on December 1, 2013. Therefore, Plaintiffs assert that the summary

judgment rendered on August 1, 2013, is now final and executory, thus rendering

Defendants’ appeal of the judgment denying the motion for new trial moot.

In their memorandum in opposition to the motion to dismiss the appeal,

Defendants state that they timely took an appeal from the judgment granting

Plaintiffs motion for summary judgment. Defendants acknowledge that in their

motion for appeal, they inadvertently listed the judgment denying their motion for

new trial instead of the underlying judgment granting Plaintiffs’ motion for

summary judgment. Defendants contend that the fact they ordered the entire

transcript of the record, including the transcript of the hearing on the motion for

summary judgment, for the appeal shows that they intended to appeal the summary

judgment rendered on August 1, 2013. Also, Defendants maintain that their intent

to appeal the August 1, 2013, summary judgment is further demonstrated by the

fact that their appellate brief raises issues challenging various aspects of the

judgment granting the motion for summary judgment.

We note that in cases in which the motion for appeal states that the appeal is

being taken only from the judgment on a motion for new trial but the appellant

exhibits the intent to appeal the judgment on the merits, this court has held that the

appeal can, nonetheless, be considered as an appeal of the judgment on the merits.

See McClure v. City of Pineville, 05-1460 (La.App. 3 Cir. 12/6/06), 944 So.2d 805,

writ denied, 07-0043 (La. 3/9/07); Thompson v. Nationwide Mut. Ins. Co., 95-258

(La.App. 3 Cir. 10/4/95), 663 So.2d 191. In the instant case, we find that although

Defendants stated in their motion for appeal that they were appealing the judgment

denying the motion for new trial, the arguments raised in Defendants’ appellate

brief demonstrate that Defendants intended to appeal the underlying summary

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judgment granted on the merits of the case. Therefore, we hereby deny Plaintiffs’

motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.

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

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