Opinion
No. 10-CA-485.
December 14, 2010.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 604-156, DIVISION "P" HONORABLE LEE V. FAULKNER, JUDGE PRESIDING.
BYRON J. CASEY, III, Attorney at Law, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
CARL T. CONRAD, BLUE WILLIAMS, L.L.P., Attorney at Law, Mandeville, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
Plaintiff/appellant, Carlene Banister, filed the present appeal from the denial of her Motion to Set for Trial on the Merits. For the reasons that follow, we convert the improperly filed appeal to a writ and deny relief.
Procedural History
Plaintiff filed a Petition for Damages in February 2005 against defendant/appellee, Dr. Barrett Day, and Louisiana Medical Mutual Insurance Company (LMMIC) seeking damages for injuries she received as the result of medical care she received from unlicensed staff at Integrative Medical Services (IMS), where Dr. Day was the alleged medical director. Dr. Day subsequently filed a motion for summary judgment on the basis plaintiff could not meet her burden of proof. Plaintiff then filed a motion for partial summary judgment on the issue of liability. Both motions were heard together and the trial court took the matter under advisement. The trial court subsequently rendered judgment on July 11, 2008 in favor of Dr. Day granting his motion for summary judgment and denying plaintiff's motion for partial summary judgment. Plaintiff appealed, and this court affirmed the judgment after finding the trial court "properly granted Dr. Day's Motion for Summary Judgment thereby dismissing the entire case." Banister v. Day, 08-835, p. 12 (La. App. 5 Cir. 5/26/09), 13 So.3d 229, 236. Plaintiff filed a writ with the Louisiana Supreme Court which was denied. Banister v. Day, 09-1529 (La. 10/9/09), 18 So.3d 1286.
Thereafter, on October 15, 2009 and January 15, 2010, plaintiff filed a Motion to Set for Trial on the Merits seeking to set her general negligence claim for trial. She claimed her petition alleged both medical malpractice and general negligence claims and that the judgment granting Dr. Day's motion for summary judgment only dismissed the medical malpractice claims. The trial court denied the motion with a handwritten notation stating, "SEE PREVIOUS JUDGMENT WHEREIN JUDGE ZENO DISMISSED THE CASE." The trial court issued reasons for judgment in which it explained that the July 11, 2008 judgment granting Dr. Day's motion for summary judgment dismissed all of plaintiff's causes of action against Dr. Day. It further noted that the trial court's judgment was affirmed by this Court and the Louisiana Supreme Court. Plaintiff filed a motion for appeal which was granted.
Jurisdiction
Plaintiff appeals from the denial of a motion to set trial on the merits. Such a ruling is not appealable.
This Court's appellate jurisdiction extends only to final judgments. Alvarez v. LeBlanc, 08-247, p. 4 (La. App. 5 Cir. 9/30/08), 996 So.2d 517, 520. Under La.C.C.P. art. 1841, a final judgment is a judgment that "determines the merits in whole or in part," and an interlocutory judgment is one that "does not determine the merits but only preliminary matters in the course of the action." Furthermore, La.C.C.P. art. 1915 sets forth the instances when a final judgment may be rendered, even though it does not grant the successful party all of the relief sought or does not adjudicate all of the issues in the case.
The denial of a motion to set for trial does not determine any of the merits of the case in whole or in part and, thus, is an interlocutory judgment. Interlocutory judgments are appealable only when expressly provided by law. La.C.C.P. art. 2083(C). Our law does not expressly provide that the denial of a motion to set for trial is an appealable judgment and, thus, we do not have appellate jurisdiction over this matter.
Shortly after the record was lodged, appellee filed a motion to dismiss the appeal on the ground the appeal was frivolous because plaintiff's entire case had already been dismissed by the trial court and reviewed and affirmed by this Court. Appellee also sought dismissal of the appeal on the basis the judgment plaintiff sought to appeal was a non-appealable, interlocutory judgment.
Plaintiff's motion for appeal was filed within thirty days of the April 14, 2010 judgment denying the motion to set for trial. On January 16, 2007, this Court decided en banc that improperly filed appeals could be converted to a writ if the panel considering the case determines that the interest of justice demands it. Schexnayder v. Gish, 07-771, p. 4 (La. App. 5 Cir. 2/19/08), 980 So.2d 65, 67. We find the interest of justice demands consideration of this matter under our supervisory jurisdiction and, therefore, we convert this appeal to a writ and deny Dr. Day's motion to dismiss the appeal.
Merits of Writ
In considering this matter, we find no error in the trial court's ruling denying plaintiff's Motion to Set Trial on the Merits. Plaintiff contends that despite the granting of summary judgment in favor of Dr. Day, she still has a pending cause of action against Dr. Day for general negligence. She asserts that the trial court's granting of Dr. Day's summary judgment was limited to the medical malpractice claims.
On appeal from the granting of the summary judgment, this Court addressed plaintiff's medical malpractice and general negligence claims. This Court concluded that plaintiff presented no proof of any causal connection between the intravenous therapy and her alleged injuries or that she sustained any injuries. As such, this Court found plaintiff failed to carry her burden of proving Dr. Day's medical malpractice proximately caused her any injury. This Court further found that, "appellant has not met the cause-in-fact element or the damages element of a general negligence cause of action." Banister v. Day, 08-835, p. 12 (La. App. 5 Cir. 5/26/09), 13 So.3d 229, 236. Accordingly, this Court held that "the trial court properly granted Dr. Day's Motion for Summary Judgment thereby dismissing the entire case." Id. As noted above, the Louisiana Supreme Court denied writs; thus, our opinion on the matter was final and definitive.
We find the trial court properly denied plaintiff's Motion to Set Trial on the Merits. Our opinion in Banister v. Day, supra, specifically addressed the merits of plaintiff's medical malpractice and general negligence claims. Thus, there were no claims left to set for trial. Accordingly, this writ application is denied.
APPEAL CONVERTED TO A WRIT; WRIT DENIED
NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY DECEMBER 14, 2010 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: