CAMILLE LANDRY, ET AL. VERSUS P.S.A OF LAFAYETTE, ET AL.

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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT CA 12-277 CAMILLE LANDRY, ET AL. VERSUS PSA OF LAFAYETTE, LLC, ET AL. ********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20045188 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE ********** JAMES T. GENOVESE JUDGE ********** Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery, Judges. MOTION TO DISMISS DENIED. CONERY, J., dissents and would grant the motion. Eve Barrie Masinter Breazeale, Sachse & Wilson 909 Poydras, Suite 1500 New Orleans, LA 70112-4004 (504) 619-1800 COUNSEL FOR DEFENDANT/APPELLEE: Pediatric Services of America, Inc. William Winfield Stagg Ryan M. Goudelocke Durio, McGoffin & Stagg Post Office Box 51308 Lafayette, LA 70505 (337) 233-0300 COUNSEL FOR DEFENDANT/APPELLEE: Women’s and Children’s Hospital, Inc. Roy Clifton Cheatwood Monica Ann Frois Brandy N. Sheely Baker Donelson Bearman Caldwell & Berkowitz, P.C. 201 St. Charles Ave., #3600 New Orleans, LA 70170 (504) 566-5200 COUNSEL FOR DEFENDANT/APPELLEE: Pediatric Services of America, Inc. John Layne Hammons Annis Cornell Rushing Flournoy Chaile Allen Nelson & Hammons, A.P.L.C. 705 Milam Street Shreveport, LA 71101 (318) 227-2401 COUNSEL FOR PLAINTIFFS/APPELLANTS: Ryan D. Landry, et al. John Michael Veron J. Rock Palermo, III Veron, Bice, Palermo & Wilson, L.L.C. Post Office Box 2125 Lake Charles, LA 70602-2125 (337) 310-1600 COUNSEL FOR DEFENDANTS/APPELLEES: Monica Ann Frois Pediatric Services of America, Inc. Marc W. Judice James J. Hautot, Jr. Judice & Adley Post Office Drawer 51769 Lafayette, LA 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANTS/APPELLEES: Dr. Cong T. Vo Dr. Rosarie Josseline Belizaire James Paul Lambert Post Office Box 53083 Lafayette, LA 70505-3083 (337) 261-3737 COUNSEL FOR PLAINTIFFS/APPELLANTS: Camille Landry, et al. Stewart Earl Niles, Jr. Michelle Anne Bourque Niles, Bourque & Fontana, LLC 909 Poydras St., 35th Floor New Orleans, LA 70112 (504) 310-8550 COUNSEL FOR DEFENDANT/APPELLEE: The Administrators of the Tulane Educational Fund Daniel G. Brenner Eric John Miller R. Preston Mansour, Jr. Bolen, Parker & Brenner Post Office Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: Daniel G. Brenner R. Preston Mansour, Jr. Nadia Marie de la Houssaye Jones, Walker, Waechter, Poitenvent, Carrère & Denègre, L.L.P. Post Office Drawer 3408 Lafayette, LA 70502-3408 (337) 262-9000 COUNSEL FOR DEFENDANTS/APPELLEES: Dr. Vasanth Nalam Louisiana Patient’s Compensation Fund GENOVESE, Judge. Plaintiffs-Appellants, Camille Landry, individually and on behalf of her minor child, Tai Landry, and Ryan Landry, individually and on behalf of his minor child, Tai Landry, and the defendants-appellees, Dr. Cong T. Vo, Dr. Rosaire Josseline Belizaire, Dr. Vasanth Nalam and the Louisiana Patient’s Compensation Fund, have filed a Joint Motion to Dismiss Appeals and All Claims Against Dr. Cong T. Vo, Dr. Rosaire Josseline Belizaire, Dr. Vasanth Nalam and the Louisiana Patient’s Compensation Fund. The defendant-appellee, Pediatric Services of America, Inc. (PSA), has filed a memorandum in opposition to the motion to dismiss. For the reasons expressed below, we deny the motion. Following the issuance of this court’s opinion in this appeal, the plaintiffs filed a writ application with the Louisiana Supreme Court, which remains pending due to a stay issued by that court while plaintiffs’ nullity action is decided by the trial court. The supreme court granted plaintiffs’ motion lifting the stay for . . . the limited purpose of allowing the plaintiffs[] to file a motion to dismiss claims against Dr. Vo, Dr. Belizaire, Dr. Nalam and the Louisiana Patient’s Compensation Fund. Plaintiffs filed a motion to dismiss their claims against these four defendants in this court. The motion was opposed by the only other defendant, PSA. This court issued its opinion denying this motion on May 20, 2015. Plaintiffs and the four other defendants have again filed a joint motion to dismiss, and this time plaintiffs’ counsel attached an affidavit allegedly in compliance with the provisions set forth in Uniform Rules—Courts of Appeal, Rule 2–8.3, asking in this motion that this court dismiss the plaintiffs’ claims against these four defendants, but reserving the plaintiffs’ claims against PSA. PSA opposes this motion. Uniform Rules—Courts of Appeal, Rule 2–8.3 provides, Any appeal may be summarily dismissed or remanded by order of the court where there has been a joint motion filed by all interested parties or their counsel of record, which shall set forth the reason for such action and which shall be supported by appropriate affidavits that the facts alleged are true and correct. 1 Emphasis added. Plaintiffs and the other four defendants, in their memorandum in support of the motion to dismiss, never discuss the question of whether PSA is an interested party as this term is used in Rule 2–8.3. It appears from a reading of the arguments set forth in the memorandum in support of the motion that the parties thereto are suggesting that PSA has no interest in the dismissal of these other defendants since any fault that may ultimately be assigned to the dismissed defendants would reduce the plaintiffs’ recovery by their assigned percentage of fault. However, Rule 2–8.3 refers to [a]ny appeal, not any motion to dismiss an appeal, and we find that PSA is an interested party in plaintiffs’ appeal. Therefore, we find that PSA must also acquiesce in the granting of the motion to dismiss in order to comply with Rule 2–8.3. PSA has filed a memorandum in opposition to the motion; therefore, PSA clearly does not acquiesce. Accordingly, we find that the movers have failed to comply with Rule 2–8.3, and we deny the motion. MOTION TO DISMISS DENIED. 1 As explained in this court’s opinion rendered on the plaintiffs’ first motion to dismiss, Uniform Rules—Courts of Appeal, Rule 2–8.4 has no application to the facts of this case. 2

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