METCLAF v. Christus Health Southwestern Louisiana , 997 So. 2d 905 ( 2008 )

KELLI P. METCALF AND JUDY L. METCALF, ETC.
v.
CHRISTUS HEALTH SOUTHWESTERN LOUISIANA D/B/A ST. PATRICK HOSPITAL

08-1269.

Court of Appeals of Louisiana, Third Circuit.

December 10, 2008. Not Designated for Publication.

Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, Counsel for Plaintiffs/Appellants, Kelli P. Metcalf, Judy L. Metcalf.

Robert S. Kleinschmidt, Jr., Lake Charles, LA, Counsel for Defendant/Appellee, Christus Health Southwestern Louisiana d/b/a St. Patrick Hospital.

Court composed of DECUIR, PICKETT, ROY,^[*], Judges.

DECUIR, Judge.

This court, sua sponte, issued a rule for the plaintiffs-appellants to show cause, by brief only, why the appeal in this case should not be dismissed as having been taken from a partial judgment which has not been designated as appealable pursuant to La.Code Civ.P. art. 1915(B). A brief in response to this court's rule was filed by the plaintiffs, explaining that after entry of the judgment appealed, the plaintiffs were granted an order dismissing all remaining claims in this litigation, thereby rendering the appealed judgment final without the necessity of an Article 1915(B) designation of appealability. While we find that in light of this development, the appeal should not be dismissed on the lack of a designation of appealability, we find now that we must dismiss the appeal as premature and remand this case to the trial court for a ruling since no judgment appears of record to have been rendered on the motion for new trial.

The appealed judgment denied the claims advanced in the plaintiffs' original petition, but left the claims advanced in the plaintiffs' first supplemental and amending petition to be tried. In response to the rule to show cause issued by this court, the plaintiffs explained that subsequent to entry of the judgment denying their claims set forth in the original petition, the plaintiffs moved to dismiss the claims made in their supplemental and amending petition and that the trial court has granted this motion. These subsequent events were not reflected in the record filed in this court; therefore, this court issued its rule for the plaintiffs to show cause why their appeal should not be dismissed as having been taken from a partial judgment which had not been designated as appealable. We find that the subsequent dismissal of all remaining issues in this litigation has cured the defect of the original ruling rendering this judgment final pursuant to La.Code Civ.P. art. 1841.

However, the record in this appeal also reflects that the plaintiffs filed a motion for new trial seeking a reversal of the judgment now being appealed. The plaintiffs attached an order for the trial court to sign setting a hearing date for the motion for new trial. Over this order is handwritten the notation, "Denied". This order is signed by the trial court. The plaintiffs then filed their motion for appeal.

We find that the facts of the instant case are legally indistinguishable from those presented to this court in Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923 So. 2d 780. In Egle we held that when a motion for judgment notwithstanding the verdict or for new trial is not granted, the matter must be denied either following a contradictory hearing or in a formal, written judgment which clearly reflects that the post-judgment motion is being denied. Instead, in Egle, as in the instant case, the only ruling appearing in the record was a denial of the order to set the matter for hearing. Therefore, this court ordered the appeal in Egle dismissed and remanded the matter for disposition of the extant post-judgment motion. We find no basis in this record for reaching a contrary result, and therefore, we hereby dismiss the instant appeal as premature, at plaintiffs' cost, and remand this matter to the trial court for disposition of the plaintiffs' motion for new trial.

APPEAL DISMISSED; CASE REMANDED.

NOTES

[*] Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.