Alma Mims On Behalf of Jodie Futch VS Hood Memorial Hospital, Tangi Pines Nursing Center, Acadian Ambulance Services and Dr. Thomas C. Evans

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0 2011 CA ZZ33 ALMA MIMS VERSUS HOOD MEMORIAL HOSPTTAL TANGI PINES NURSTNG CENTER ACADIAN AMBULANCE SERVICES AND DR THOMAS C EVANS uagment renaereci UN 2 8 2012 Appealed from the 21 Judicial District Court in and for the Parish of Tangipahoa Louisiana l Tri Court Na 2011 0000351 Hanarabte Douglas Hughes Judg ATTORNEY FOR CASSANbRA BUTLER NDENCE INDEP APPELLANT PLAINTIFF LA ALMA MIMS ATTORNEYS FOR J CHAPMAN ANDREW G BUSEKIST APPELLEE FENDANT D BATON HOOD MEMORIAL HOSPITAL ROUGE LA CARLTON JONES ATTORNEYS FOR BENJAMIN R HIJNTER APPELLEE DEFENDANT BATON ACADIAN AMBULANCE ROUGE LA SUSAN E HENNING ATTORNEY FOR NEW E APPELL DEFENDANT ORLEANS LA TANGI PINES NURSING CENTER ORE B PETTIGREW McCM AND WELCH ENDON R 1 cl v Gl 70 I b g wt 1 Ic 4 c v Cv f s 4rs ts ss w PETTIGREW J In this medical malpractice action filed January 31 2011 plaintiff Alma Mims on behalf of her deceased brother appeals the trial court judgment which sustained the exception raising th objection of no cause of action and motion for summary judgment filed by defendant Tangi Pines Nursing Center Tangi Pines on April 1 2011 and dismissed Ms Mims claims with prejudice The hearing on the motion was held on June 20 2011 almost v months after filing of the petition On appeal Ms Mims argues the trial caur erred in sustaining Tangi Pines na cause of actian exception because th petition as stated was sufficient to state a cause of action against Tangi Pines Ms Mims further asserts the trial caurt erred in granting the mation for summary judgment and in dismissing the suit as she did not have adequate time to complete discovery and the motion was premature plaintiff did not file a motion to cantinue the hearing nor orally move for a continuance at the hearing on the motion for summary judgment Additionally plaintiff did no intraduce an opposing affidavit in accordance with La Cade Civ P ark 967 C which provides that a party may oppose a motion for summary judgment by filing an affidavit asserting that for reasons stat he cannot present by affidavit facts ssential to d justify his opposition App See Dardar v Bridgestone Inc 20Q3 La Firestone 1462 Cir S 79 Sa 735 736 04 14 2d Following our de novo review af the record and relevant jurisprudence we conclude that the record do not demonstrate any error in the trial caurt judgment s s The trial court correctly concluded that Ms Mims petition failed to state a cause of action s against Tangi Pin Moreover after Tangi Pines submitted its motion for summary judgment properly supported by the opinion of th medical review panel that Tangi Pines 1 See Torbert Land Co L v Montgc 2009 p 4 App 1 Cir 7 42 So 1132 C mery 1955 La ip 9 3d 1135 writ denied Oip La 12 51 So 16 holding that appellate review of a trial court 2009 10 17 3d s ruling on a no cause of action exception is de navo because the exception raises a question of law and the trial court decision is based only on the sufFiciency of the petition Berard v L Communications s 3 Vertex Aerospace LLC 2Q09 p 5 App 1 Cir 2 35 So 334 339 writ denied 1202 La 10 12 3d 34Q 0715 2010 La 6 38 So 302 explaining that summary judgment is subj de nova review on 10 4 3d ctto appeal using the same standards applicable to the trial court determination of the issues s 2 did not deviate fram th appticable standard of care with regard to decedent Ms Mims failed to bear her burden of producing evidence that there were genuine issues of material fact remaining as o her alleged claims against Tangi Pines La Code Civ P art 2 C 966 Robles v Exxonmobile 2002 p 4 App 1 Cir 3 844 0854 La 03 28 2d So 339 341 Thus in accardance with Uniform Rules of Appeal Rule 2 Courts 2 2A 16 4 and 6 the trial caur judgment is affirmed All costs assaciated with this s appeal are assessed against plaintiff Alma Mims appellant AFFIRMED 3 ALMA MIMS NUMBER 2411 CA 2233 VERSUS FIRST CIRCUIT COURT OF APPEAL PINES NURSYNG CENTER ACADIAN AMBULANCE SERVICES AND DR STATE UF LOUISIANA THOMAS C EVANS WELCH J dissenting I disagree with the majority opinion in this tter m While I agree that the trial court may have properly sustain the peremptory exception raising the d objection o no cause of action the plaintiff should have been given the opportunity to amend her petitiort pursuant to La P GC art 934 As such I would vacate the judgment of the trial court insofar as it dimissed the plaintiff s suit and would amend the judgment to allow the plaintiff the oppartunity to amend her petition Furthermore with re to the motion for summary judgment which was ard filed approximately three months after the petition was filed the record reveals that the plaintiff was not giv sufficient time to conduct adequate discovery as n required by La C ax 9 C d a specific request for the opportunity P 6 1 spit o do so The trial court should have continued the hearing on the motion in order to give the plaintiff the opportunity to conduct adequate discovery and its failure to do so was erroneous Accordingly I would reverse this portion of the judgment of the trial court Thus I respectfully dissent

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