A Plus Home Care Services, LLC v. a Blessing Personal Home

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 21-257

A PLUS HOME CARE SERVICES, LLC

VERSUS

A BLESSING PERSONAL HOME

CARE SERVICES, LLC

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2018-1801
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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SHANNON J. GREMILLION

JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and D. Kent Savoie,
Judges.

APPEAL DISMISSED.
APPELLANT PERMITTED TO FILE
APPLICATION FOR SUPERVISORY WRITS.

Christopher C. Johnston
Johnston Law Firm, L.L.C.
7830 Sage Hill Road
St. Francisville, LA 70775
(225) 763-1244
COUNSEL FOR DEFENDANT/APPELLEE:
A Blessing Personal Home Care Services, L.L.C.

Amanda Ann Martin
Lucretia P. Pecantte
Attorneys at Law
Post Office Box 9010
New Iberia, LA 70562-9010
(337) 374-1202
COUNSEL FOR PLAINTIFF/APPELLANT:
A Plus Home Care Services, L.L.C.

Sarah E. Aycock
Attorney at Law
628 North Fourth Street
Baton Rouge, LA 70802
(225) 342-5631
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Department of Health

GREMILLION, Judge.

On April 26, 2021, this court issued a rule ordering Appellant-Plaintiff, A Plus

Home Care Services, L.L.C., to show cause, by brief only, why the instant appeal should

not be dismissed for having been taken from a non-appealable, interlocutory ruling. For

the reasons that follow, we dismiss the appeal.

Appellant filed a Petition for Breach of Contract, Injunction, and Damages

against Appellee-Defendant, A Blessing Personal Home Care Services, L.L.C. At issue

herein is Appellee’s Motion for Entry of a Protective Order and for Continuance of

Trial. Following a hearing held on January 14, 2021, a protective order was granted,

and a new trial date was set for March 22, 2021. A written judgment was signed on

January 28, 2021, and notice of judgment was mailed to the parties that same day.

Appellant filed a Motion for Appeal and Order Fixing Return Date was filed on

February 4, 2021, seeking an appeal from the January 28, 2021 judgment. When the

record was lodged in this court, a rule to show cause was issued to Appellant to show

cause, by brief only, why the appeal of the judgment granting a protective order and

setting a new trial date should not be dismissed for having been taken from a non-

appealable, interlocutory ruling.

Appellant timely filed a brief in this court, asserting therein that the trial court

made a final determination of a motion whereby Appellee did not produce any evidence

to the contrary to warrant a protective order. Appellant asserts that appellee was on a

fishing expedition to substantiate its case against a bona fide contract. If this court

determines, however, that the judgment is an interlocutory non-appealable judgment,

then Appellant requests that this court consider converting this appeal to an application

to seek supervisory writs.

The judgment at issue was signed on January 28, 2021, and Notice of Judgment

was issued to the parties that same day. Appellants did not seek review of the trial

court’s ruling via supervisory writs. Appellant, however, filed a motion to appeal on

February 4, 2021, within the thirty-day time period allowed for the filing of an

application for supervisory writs. Uniform Rules⸺Courts of Appeal, Rule 4−3.

In the interest of justice, this court may permit a party to file a writ application

when a motion for appeal is filed within thirty days of the trial court’s ruling. Rain CII

Carbon, LLC v. Turner Industries Group, LLC, 14-121 (La.App. 3 Cir. 3/19/14), 161

So.3d 688. Accordingly, we exercise our discretion and construe the motion to appeal

as a notice of intent to file for supervisory writs. The devolutive appeal in docket

number 21-257 is hereby dismissed, and Appellant is given until June 16, 2021, to file

a properly documented application for supervisory writs pursuant to Uniform

Rules⸺Courts of Appeal, Rule 4−5.

APPEAL DISMISSED.
APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY
WRITS.

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

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