text:
    Lisa PLAIA and Peter Plaia, Individually and on Behalf of their Minor Children Petra Plaia and Carolina Plaia v. STEWART ENTERPRISES, INC., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company c/w Lisa Plaia and Peter Plaia, Individually and on Behalf of their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company c/w Lisa Plaia and Peter Plaia, Individually and on Behalf of their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company
    NO. 2016-C-2264
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2010-11736; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0159 C/W 2014-CA-0746 C/W 2015-CA-1176

11 Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Norbert A. SIMMONS v. FIRST BANK AND TRUST COMPANY and Joseph C. Canizaro
    NO. 2016-OC-2270
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2014-1475; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0461

h Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Robert L. TOWNSEND
    NO. 2016-KK-2269
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court, Div. A, No. 16-CR-305; to the Court of Appeal, Fifth Circuit, No. 16-K-630

| ¶ Denied.


text:
    Thea M. SMITH, Curatrix on behalf of the Interdicted Major, Nicole M. Smith v. Joshua J. LANDRY, State Farm Mutual Automobile Insurance Company and State of Louisiana, through the Department of Transportation and Development
    NO. 2016-C-2112
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. C, No. 123053; to the Court of Appeal, First Circuit, No. 2015CA 1742;

| denied.


text:
    Amanda Rae DOUGA v. PROGRESSIVE CASUALTY INSURANCE COMPANY, et al.
    NO. 2016-02271
    Supreme Court of Louisiana.
    February 3, 2017
   Amanda Rae Douga;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No, 2014-3241; to the Court of Appeal, Third Circuit, No. 16-543

| ] Denied.

GENOVESE, J., recused.


text:
    Jake THERIOT v. INTERNATIONAL SHIPYARD, LLC and Dudley J. Dantin
    NO. 2016-CC-2274
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 110118; to the Court of Appeal, First Circuit, No. 2016 CW 0389;

I .Denied.

JOHNSON, C.J., would grant.

GENOVESE, J., would grant.


text:
    MOUNT ZION BAPTIST ASSOCIATION v. MOUNT ZION BAPTIST CHURCH #1 OF REVILLETOWN PARK
    NO. 2016-C-2283
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 71975; to the Court of Appeal, First Circuit, No. 2016 CA 0150

| [Denied.


text:
    STATE of Louisiana v. Richard DURR
    No. 2015-KP-1735
    Supreme Court of Louisiana.
    February 3, 2017
   Applying for Rehearing of this Court’s action dated November 2,2016; Parish of E. Raton Rouge, 19th Judicial District Court Div. C, No. 02-07-76-0959; to the Court of Appeal, First Circuit, No. 2015 KW 1288

11 Rehearing granted for the limited purpose of clarifying that this matter is remanded to the District Court for further proceedings consistent with our determination that the District Court erred when it declined to order post-conviction DNA testing conducted in this case. The state’s petition for reconsideration is otherwise denied.


text:
    STATE of Louisiana v. Hector J. PEREZ
    NO. 2016-KO-017 6
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 472,567; to the Court of Appeal, First Circuit, No. 2015 KA 1070;

| iDenied.


text:
    THREADGILL & WEEMS HOLDINGS, L.L.C. v. Mitchell F. CRUSTO
    NO. 2016-C-2273
    Supreme Court of Louisiana.
    Supreme Court of Louisiana February 3, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 13-7725; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0491

11 Denied.


text:
    Jake THERIOT v. INTERNATIONAL SHIPYARD, LLC and Dudley J. Dantin
    NO. 2016-CC-2275
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. C, No. 110118; to the Court of Appeal, First Circuit, No. 2016 CW 0584

| iDenied.

JOHNSON, C.J., would grant.

GENOVESE, J., would grant.


text:
    Vernon WILLIAMS d/b/a V.J.’s Hollywood Lounge v. The PARISH OF ST. BERNARD
    NO. 2016-C-2280
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 104-002-1; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1105

| denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Antonio CUZA
    NO. 2017-KD-0052
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 15-3977; to the Court of Appeal, Fifth Circuit, No. 17-K-19

|, Denied.


text:
    SUCCESSION OF Jane Inez Murray SERPAS v. Michelle Serpas CAMERO, et al.
    NO. 2017-CC-0074
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 729-856 C/W 725-839 C/W 749-450; to the Court of Appeal, Fifth Circuit, No. 16-C-641

| T Denied.


text:
    COMMAND CONSTRUCTION INDUSTRIES, LLC v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Sherri Lebas, in Her Official Capacity as Secretary of Louisiana Department of Transportation and Development
    NO. 2017-CC-0078
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 633965; to the Court of Appeal, First Circuit, No. 2016 CW 1539

| denied.


text:
    STATE of Louisiana v. Sanders LAWSON
    NO. 2016-KK-1648
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 523-055; to the Court of Appeal, Fourth Circuit, No. 2016-K-0558;

| denied.

WEIMER, J., would grant and remand. See State v. Joseph Taylor, 2016-1124, 2016-1183 (La. 12/1/16), 217 So.3d 283, 2016, 2016 WL 7030750.

GENOVESE, J., would grant and remand. See State v. Joseph Taylor, 2016-1124, 2016-1183 (La. 12/1/16), 217 So.3d 283, 2016, 2016 WL 7030750.


text:
    MT. ZION BAPTIST ASSOCIATION v. MT. ZION BAPTIST CHURCH #1 OF REVILLETOWN PARK
    NO. 2016-02109
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 71975; to the Court of Appeal, First Circuit, No. 2016 CA 0151

11 Denied.


text:
    STATE of Louisiana v. Paul KNATT, III
    NO. 2016-KK-2085
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 11-CR-1790; to the Court of Appeal, Third Circuit, No. KW 16-00629

| t Denied.


text:
    Lisa PLAIA and Peter Plaia, Individually and on Behalf of Their Minor Children Petra Plaia and Carolina Plaia v. STEWART ENTERPRISES, INC., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company Lisa Plaia and Peter Plaia, Individually and on Behalf of Their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company Lisa Plaia and Peter Plaia, Individually and on Behalf of Their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company
    NO. 2016-C-2261
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2010-11736; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0159 C/W 2014-CA-0746 C/W 2015-CA-1176

| denied.


text:
    Lisa PLAIA and Peter Plaia, Individually and on Behalf of their Minor Children Petra Plaia and Carolina Plaia v. STEWART ENTERPRISES, INC., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company c/w Lisa Plaia and Peter Plaia, Individually and on Behalf of their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company c/w Lisa Plaia and Peter Plaia, Individually and on Behalf of their Minor Children Petra and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen’s Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company
    No. 2016-C-2258
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2010-11736; to the Court of Appeal, Fourth Circuit, No. 2014-CA-0159, C/W 2014-CA-0746, C/W 2015-CA-1176;

1 iDenied.


text:
    Franandis DAWSON v. Kevin WASHINGTON, et al.
    NO. 2017-CC-0033
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 16-6145; to the Court of Appeal, Fourth Circuit, No. 2016-C-1189

| Writ granted. The case is remanded to the court of appeal, which is instructed to allow relator to supplement his application with the appropriate documentation and to consider the application, as supplemented, on the merits.


text:
    STATE of Louisiana v. Victor LOVE
    NO. 2016-KO-0317
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 1, No. 322, 995; to the Court of Appeal, Second Circuit, No. 50, 238-KA

h Denied.


text:
    STATE of Louisiana v. Samuel Dale TURNER
    NO. 2016-KO-0283
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. G, No. 2012-1270F; to the Court of Appeal, Second Circuit, No. 50, 221-KA

| denied.


text:
    STATE of Louisiana v. Carey GARRISON
    NO. 2016-KO-0258
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 11-1015; to the Court of Appeal, Fifth Circuit, No. 15-KA-285;

| ¶ Denied.


text:
    STATE of Louisiana v. Stanley GRIGSBY
    NO. 2016-KO-0183
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 03-13-0824; to the Court of Appeal, First Circuit, No. 2015 KA 0960;

|, Denied.


text:
    STATE of Louisiana v. Terrol M. COLE
    NO. 2016-KO-0179
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-968; to the Court of Appeal, Fifth Circuit, No. 15-KA-358;

| denied.


text:
    STATE of Louisiana v. James Anthony BELL
    NO. 2015-KO-1996
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 63133; to the Court of Appeal, Second Circuit, No. 50,092-KA

| iDenied.


text:
    STATE of Louisiana v. James Anthony BELL
    NO. 2015-KO-1980
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. C, No. 63133; to the Court of Appeal, Second Circuit, No, 50,095-KA;

| iDenied.


text:
    STATE of Louisiana v. Jefferson FAGGARD
    NO. 2016-KO-0338
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 14-947; to the Court of Appeal, Fifth Circuit, No. 15-KA-585;

| iDenied.


text:
    In the MATTER OF the SUCCESSION OF Vic RENO
    NO. 2016-C-2106
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 95632; to the Court of Appeal, First Circuit, No. 2015 CA 0854

| ¶ Denied.

HUGHES, J., would grant.


text:
    Antoine PERRIER v. BELLSOUTH COMMUNICATION SYSTEMS, LLC
    NO. 2016-C-2233
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2012-02332; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0553;

| denied.

JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Denzel SHINE
    NO. 2017-KK-0266
    Supreme Court of Louisiana.
    February 10, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 530-890; to the Court of Appeal, Fourth Circuit, No. 2017-K-0063

11 Stay denied. Writ denied.


text:
    Michael Cal CLARY, et ux. v. STATE FARM MUTUAL AUTOMOBILE INS. CO., et al.
    NO. 2017-C-0209
    Supreme Court of Louisiana.
    February 15, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2015-2657; to the Court of Appeal, Third Circuit, No. 16-168;

|! Stay denied. Writ denied.

GENOVESE, J., recused.


text:
    Michael Cal CLARY, et ux. v. STATE FARM MUTUAL AUTOMOBILE INS. CO., et al.
    NO. 2017-C-0197
    Supreme Court of Louisiana.
    February 15, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2015-2657; to the Court of Appeal, Third Circuit, No. 16-168;

liStay denied. Writ denied.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Jeremy HAWTHORNE
    NO. 2017-KK-0239
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 525-728; to the Court of Appeal, Fourth Circuit, No. 2016-K-1217

|! Stay denied. Writ denied.

WEIMER, J., would grant.


text:
    STATE EX REL. Michael Wayne NEWSON v. STATE of Louisiana
    NO. 2015-KH-1829
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 211932; to the Court of Appeal, Second Circuit, No. 50,421-KH

[, Denied. Relator filed his distinct court application in the incorrect venue. R.S. 15:571.15.


text:
    STATE EX REL. Ernest BILLIZONE, Sr. v. STATE of Louisiana
    NO. 2015-KH-2029
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 15-3716; to the Court of Appeal, Fifth Circuit, No. 15-K-567;

11 Denied.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Martin Luther TEXADA
    NO. 2015-KO-2345
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 97-K-2611-A; to the Court of Appeal, Third Circuit, No. CR99-1009;

| tDenied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 16-PDB-072
    NO. 2016-OB-2225
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Appeal of the decision of the Disciplinary board Office of the Disciplinary Board, No. 16-PDB-072

Leave to appeal denied.


text:
    IN RE: Appeal of the DISCIPLINARY BOARD NO. 16-PDB-082
    NO. 2016-OB-2196
    Supreme Court of Louisiana.
    February 17, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Counsel, No. 16-PDB-082

Leave to appeal denied.


author:
Judge Daniel L. Dysart
      LANDRIEU, J.,

text:
    Judith SULLIVAN and Wilmont Thompson v. MALTA PARK, Donald Rankey, Marie Letellier, Willwoods Community Management, Inc., and Homelife in the Gardens, LLC
    NO. 2016-CA-0875
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 31, 2017

      Madro Bandaries, MADRO BANDAR-IES, P.L.C., 938 Lafayette Street, Suite 407, New Orleans, LA 70113, James J. Carter, JAMES CARTER & ASSOCIATES, LLC, 1100 Poydras Street, Suite 1160, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLANT

      Kevin O’Bryon, Sherry Watters, O’BRYON & SCHNABEL, PLC, 1010 Common Street, Suite 1950, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

J^This is an appeal of a trial court judgment denying a Motion for Sanctions, Motion to Strike, and Rule for Contempt filed on behalf of appellant, Judith A. Sullivan. Appellees, F. Evans Schmidt, Koch & Schmidt, LLC, and respondents-appellees, Marta-Ann Schnabel and Caitlin Morgen-stern, filed a Motion to Dismiss the instant appeal, on two grounds: first, that this Court does not have jurisdiction because the judgment is not a final, appeal-able judgment; and two, because the appeal itself is frivolous. We find that the trial court’s judgment, rendered in open court on May 13, 2016 (and followed by a written judgment on May 27, 2016), is not a final judgment; nor is the judgment designated as final by the trial court. We therefore dismiss the appeal as no appeal lies from an interlocutory judgment that it not designated as final. We also decline to exercise Lour supervisory jurisdiction by converting the motion for appeal to an application for supervisory writs, as discussed more fully herein.

Under Louisiana law, “[j]udgments are either interlocutory or final, and the distinction between the two is that a judgment that determines ‘the merits in whole or in part’ is a final judgment, whereas a judgment that decides only preliminary matters in the course of the action is an interlocutory judgment.” Brennan v. Shell Offshore, Inc., 93-1525, p. 4 (La. App. 4 Cir. 3/29/94); 635 So.2d 429, 431. As explained by this Court in Favrot v. Favrot, 10-0986, pp. 2-3 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102:

“A final judgment is appealable in all cases in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.” La. C.C.P. Art. 2083 A. “A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. Art. 1841. “No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B),

La. C.C.P. art. 1915 B(1) requires more than a designation that a partial judgment be designated as final. It further requires the trial court make “an express determination that there is no just reason for delay.” La. C.C.P. art. 1915B(1).

“An interlocutory judgment is ap-pealable only when expressly provided for by law.” La. C.C.P. art. 2083 C. Our jurisprudence clearly indicates that “the denial of a motion for sanctions is a judgment that does not determine the merits of the case” and is, therefore, “an interlocutory judgment.” Armelise Planting Co. v. Liberty Oil & Gas Corp., 05-1250, p. 4 (La. App. 1 Cir. 6/9/06), 938 So.2d 178, 179; Brown v. Sanders, 06-1171 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933 (“the denial of a motion for sanctions is an interlocutory judgment; it does not determine the merits of the case”(emphasis supplied)).

Similarly, the denial of a motion for contempt is not one that decides the merits of the case and is therefore, interlocutory in nature. See, Robinson v. Harlan, 11-0703, pp. 2-3 (La.App. 1 Cir. 11/9/11), 79 So.3d 1034, 1035-36 (citations omitted)(while “[a] judgment of contempt of court is an interlocutory judgment,” when a trial court’s judgment does not impose a finding of contempt, the judgment “does not fall under the rubric of [La. C.C.P. art.] 1915 A(6) and is not a partial final judgment subject to immediate appeal by law.”). As the Robinson court noted, the trial court’s designation “of this interlocutory judgment as ‘final’ ” does not make “the interlocutory judgment. . .subject to an immediate appeal.” Id., p. 3, 79 So.3d at 1036.

A motion to strike an affidavit, too, does not decide the merits of a case and, is therefore, “an interlocutory ruling that is not generally appealable.” Madison v. Inter-Cont’l Hotels Corp., 14-0717, p. 5, n.4 (La.App. 4 Cir. 8/26/15), 173 So.3d 1246, 1250, writ denied, 2015-1757 (La. 11/6/15), 180 So.3d 310.

Thus, in the instant matter, there can be no question that the trial court’s May 27, 2016 judgment, denying the various motions, was an interlocutory judgment.

|/This Court recently reiterated the well-settled rule that “proper procedural vehicle for seeking review of an interlocutory judgment is by application for a supervisory writ.” Llopis v. State, 16-0041 (La.App. 4 Cir. 12/14/16), 206 So.3d 1066, 1068, 2016 WL 7238986 at *4. Under Rule 4-3 of the Uniform Rules, Courts of Appeal, an application for supervisory writ must be filed within thirty days of the notice of the rendition of the judgment to be reviewed. The rendition of “of an interlocutory judgment in open court constitutes notice to all parties.” La. C.C.P. art. 1914 A.

In the instant matter, the trial court denied Ms. Sullivan’s Motion in open court on May 13, 2016. The Motion for Appeal was not filed until June 24, 2016. Because the motion for appeal was filed beyond the thirty day period applicable to supervisory writs, we decline to exercise our discretion to consider the motion for appeal as an application for supervisory writ. We, therefore, dismiss this appeal for lack of jurisdiction. See, McGinn v. Crescent City Connection Bridge Auth., 15-0165, p. 5 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 149.

Turning to the Answer to the Appeal filed by Mr. Schmidt, Koch & Schmidt, Ms. Schnabel and Ms. Morgen-stern, we note that damages, including attorney’s fees, may be awarded by an appellate court pursuant La. C.C.Pr. art. 2164, which provides as follows:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, | ¡-.against any party to the suit, as in its judgment may be considered equitable.

Our jurisprudence reflects that damages for a frivolous appeal damages may be awarded “if the appellant is trying to ‘delay the action’ or ‘if the appealing counsel does not seriously believe the law he or she advocates.’” Hunter v. Maximum Grp. Behavioral Servs., Inc., 10-0930, p. 6 (La.App. 4 Cir. 3/16/11), 61 So.3d 735, 739, quoting Hester v. Hester, 97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46. The Hunter Court also noted that an appellate court may deem an appeal frivolous “if it does not present a ‘substantial legal question.’ ” Id. (Citation omitted).

However, “ ‘[a]ppeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted’ due in part to the possible chilling effect on the appellate process.” Johnson v. Johnson, 08-0060, pp. 5-6 (La. App. 4 Cir. 5/28/08), 986 So.2d 797, 801, quoting Tillmon v. Thrasher Waterproofing, 00-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137. Likewise, because the statute allowing the imposition of damages for frivolous | fiappeal is penal in nature, it “must be strictly construed in favor of the appellant.” Hunter, 10-0930, p. 6, 61 So.3d at 739.

In the instant matter, while we find that there is questionable merit in this substance of this appeal, we cannot say that it was filed in bad faith or for purposes of delay. Nor does the record reflect that appellant does not seriously believe the law she advocates, particularly considering the current contentious nature of this case. Having considering the arguments of counsel, we do not find that this matter meets the requirements of a frivolous appeal.

We therefore decline to award damages or tax costs against appellant under La. C.C.P. art. 2164.

APPEAL DISMISSED

LANDRIEU, J., CONCURS WITH REASONS

LANDRIEU, J.,

CONCURS WITH REASONS.

hi concur in the result. I agree the trial court’s judgment is an interlocutory judgment from which an appeal does not lie. I would pretermit the issue of whether sanctions are warranted until such time (if ever) as a proper appeal is before this Court.

      .Ms. Schnabel and Ms. Morgenstern are not defendants in this case. Ms. Morgenstern is co-counsel with Mr. Schmidt and Ms. Schnabel represents Mr. Schmidt and Koch & Schmidt, LLC in the defense of the motions filed by Ms. Sullivan. Ms. Morgenstern and Ms. Schnabel were also the object of at least one of Ms. Sullivan’s motions—a motion for contempt (for the alleged "breach of the duty of candor” to the court—and appear herein as respondents-appellees.

      . The defendants-appellees and respondents-appellees answered the appeal seeking an award of damages for a frivolous appeal.

      . We note that the Order granting the appeal states that "the judgment at issue is final as allowed by C.C.P. art. 1814 [sic], et seq." However, the judgment, itself, is not designated as final and there is no express determination by the trial court that there is no reason for just delay, as required by La. C.C.P. art. 1915 B(1).

      . When an appeal has been taken of an interlocutory judgment, courts may convert the appeal to an application for a supervisory writ, but do so when "the motion for appeal was filed within the thirty-day delay allowed under Rule 4-3 of the Uniform Rules—Courts of Appeal for the filing of an application for supervisory writs. Ramirez v. Evonir, LLC, 14-1095, p. 4 (La.App. 4 Cir. 4/9/15), 165 So.3d 260, 263; See also, Barham, Warner & Bellamy, L.L.C. v. Strategic All. Partners, L.L.C., 09-1528, p. 4 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152.

      . We note that, even when an appeal is dismissed as untimely, the appellate court may still consider whether to impose sanctions. In Harper v. Eschenazi, 04-863 (La.App. 5 Cir. 12/28/04), 892 So.2d 671, for example, the appeal was dismissed as untimely upon motion of the appellee. The appellate court, however, considered the appellee's request for sanctions, because of the “untimely filing of plaintiff’s motion for appeal," even though the appellee had not filed an answer to the appeal (rather, the appellee filed a motion for sanctions in the appellate court). Id., 04-863, p. 5, 892 So.2d at 674. See also, Cannatella v. Cougle, 12-610, pp. 8-9 (La.App. 5 Cir. 5/16/13), 119 So.3d 94, 99, which after first finding that there was no appealable judgment, and dismissing the appeal, chose not to award sanctions, after concluding that the appeal did not meet the requirements of a frivolous appeal. The court noted that “[a]n appellate court’s authority to regulate conduct before it is governed by La. C.C.P. art. 2164, which provides in pertinent part, ”[t]he [appellate] court may award damages for frivolous appeal.” Id.; Voiron v. Voiron, 03-2823 (La.App. 1 Cir. 12/17/04), 897 So.2d 697, 699, where the appellee answered the appeal, seeking sanctions and the appellate court awarded sanctions for frivolous appeal after the appeal was dismissed as abandoned; Capital-Union Sav., F.A. v. Williams, 528 So.2d 187, 187 (La. App. 1 Cir. 1988), where the appellate court imposed sanctions for frivolous appeal after the case was dismissed as abandoned.


author: Judge Marion F. Edwards, Pro Tempore

text:
    R.L. LUCIEN TILE CO. v. SOLID ROCK CO., Stallings Construction Co. and Children’s Hospital
    NO. 2016-CA-0690
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 29, 2017
    Rehearing Denied May 17, 2017

      Jack H. Tobias, LAW OFFICES OF JACK H. TOBIAS, P.L.C., 1515 Poydras Street, Suite 2260, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT, R.L. LUCIEN TILE CO.
    Lindsey M. Ladouceur, Jane C. Alvarez, LADOUCEUR & LADOUCEUR, L.L.C., 22398 Highway 435, P. O. Box 1929, Abita Springs, LA 70420, COUNSEL FOR DEFENDANT/APPELLEE, STALLLINGS CONSTRUCTION CO., INC.
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

| plaintiff, R. L. Lucien Tile Company, appeals a judgment of the district court denying its motion to set aside the dismissal of its breach of contract case on grounds of abandonment against defendant, Stall-ings Construction Company, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case involves a construction dispute between R, L. Lucien Tile Company (“Lucien”), Solid Rock Company (“Solid Rock”), Stallings Construction Company, Inc. (“Stallings”), and Children’s Hospital. On May 30, 2000, Lucien filed a lawsuit against Solid Rock, Stallings, and Children’s Hospital Co., alleging that it provided over $60,000.00 in payroll financing to Solid Rock and Stallings, and that defendants have ignored repeated requests by Lucien to be paid for its services and supplies. Further, Lucien alleged that Children’s Hospital was “the recipient of the labor and materials that were fraudulently and illegally taken” and that the “labor and material has been incorporated as a part of the immovable property that is now the Children’s Hospital Ambulatory Care Center.”

laOn September 22, 2000, Lucien filed an amended petition for damages. Thereafter, on September 6, 2001, Stallings filed an exception, answer, reconventional demand, cross-claim, and third-party demand against Solid Rock and Lucien. Stallings excepted to Lucien’s procedural capacity to prosecute this lawsuit, alleging that “Lucien is a sole proprietorship and not a corporation chartered under or licensed to do business in Louisiana.” In its reconven-tional demand, Stallings made Robert L. Lucien, Sr., d/b/a R. L. Lucien Tire [sic] Co„ a defendant. In its cross-claim and third party demand, Stallings made “Solid Rock Construction, L.L.C.” a defendant, identifying it as a limited liability company whose primary place of business was in St. Tammany Parish, Louisiana. Mr. Lucien, Sr., and Solid Rock were served on September 14 and 19, 2001, respectively. On November 13, 2001, Stallings received preliminary default judgments against Solid Rock and Lucien after both parties failed to answer its pleading.

On November 28, 2001, Solid Rock filed a motion to set for trial on the merits. Stallings opposed this motion on several grounds: (1) that no discovery had been conducted; (2) that neither Solid Rock nor Children’s Hospital had filed |san answer; and (3) and that the proposed motion to set for trial did not comply with Rule 10, Section 1, of the Civil District Court Rules.

. On December 18, 2001, Children’s Hospital filed exceptions of no cause of action and no right of action. The basis for the exception of no cause of action was Lucien’s failure to fulfill the requirements necessary to state a claim against Children’s Hospital under La. R.S. 9:4802 (the Private Works Act), the statutory authority on which Lucien’s claims were based. The basis for the exception of no right of action was Lucien’s failure to file its Mate-rialman’s and Labor Lien within sixty days of substantial completion of the construction project. On February 20, 2002, following a hearing, the district court granted Children’s Hospital’s exceptions of no cause of action and no right of action, and dismissed Lucien’s claims against it.

On February 15, 2005, Stallings filed peremptory exceptions of no right of action and. prescription, alleging (1) that Lucien is not included in the class of persons for whom the Louisiana Private Works Act (La. R.S. 9:4801 et seq.) extends a privilege against Stallings; and (2) in the event the Louisiana Private Works Act is applicable, Lucien failed to file suit against Stallings within the time periods outlined by said act. On July 21, 2008, Lucien filed a response to Stallings’ exceptions. On August 25, 2011, Stallings filed a second motion to set hearing on peremptory exceptions of no right of action and prescription, which were heard on October 14, 2011. Thereafter, on October 27, 2011, Stallings’ exceptions of no right of action and prescription were maintained and Lucien’s claims against Stallings under the Private Works Act (La. R.S. 9:4801) were dismissed. Further, the October 27, 2011 judgment ordered that “the [ ¿Materialman's and Labor Lien filed by plaintiff shall be stricken from the mortgage records of Orleans Parish.”

On March 9, 2012, because the liens against Stallings had not been stricken from the mortgage records as ordered by the district court on October 27, 2011, Stallings filed a rule for contempt and for attorney’s fees and costs. Thereafter, on April 12, 2012, Lucien’s liens were canceled; however, on June 14, 2012, the district court granted Stalling’s request for sanctions and ordered Lucien to pay Stallings $500.00.

On May 29, 2015, a pleading was filed by plaintiff R.L. Lucien Tile Company, Inc. [both the original and first amended petitions were filed on behalf of “R.L. Lucien The Co.”] requesting leave to supplement and amend the petition for a second time in order to add new defendants and several new causes of action. Stallings filed a memorandum in opposition to the motion for leave to file the second supplemental and amending petition arguing that the pleading “adds an entirely new defendant and several new causes of action, all of which were known or should have been known to Lucien at the time of filing of the original Petition fifteen years ago.” Thereafter, on October 9, 2015, the district court denied the motion for leave to file the second supplemental and amending petition.

On October 1, 2015, Stallings filed an ex parte motion to dismiss on grounds of abandonment, which was granted on October 12, 2015. On October 27, 2015, Lucien filed a motion to set aside the judgment of abandonment arguing that the |Bdistrict court failed to take into account its June 12, 2012 judgment, which granted defendant Stallings sanctions in the amount of $500.00. Lucien argues that this judgment was a step in the defense of the matter by law. After a hearing on Lucien’s motion to set aside the judgment of abandonment, the district court denied the motion on February 18, 2016, and stated the following reasons for its ruling:

After considering the pleadings, the argument of counsel, the law, and upon finding that the defendant’s filing of a Motion for Contempt, the subsequent Judgment granting the Motion for Contempt, and plaintiffs payment of an award of sanctions to defendant, were not steps in the prosecution or defense of this matter; the Motion for Contempt did not move the matter forward or defend the matter; rather, it was designed to require the plaintiff to do what the Court had previously ordered plaintiff to do in Judgment dated October 27, 2011; and upon further finding that this matter was already abandoned when the Motion for Leave to file Second Supplemental and Amended Petition was filed.

Lucien now appeals this final judgment, alleging the following assignments of error: (1) the district court committed manifest error in granting Stallings’ motion for dismissal ex parte on October 21, 2015, as the June 12, 2012 Judgment met the standard for interruption of abandonment; (2) the district court committed manifest error in denying its motion to set aside the judgment of abandonment; and (8) the district court committed manifest error in denying its motion for leave to file second supplemental and amending petition and second supplemental and amending petition for damages.

STANDARD OF REVIEW

The question of whether a suit was abandoned is a legal question. See Olavarrieta v. St. Pierre, 04-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568. Thus, the standard of review by an appellate court “in reviewing a question of |filaw is simply whether the lower court’s interpretive decision is correct.” Id., citing Faust v. Greater Lakeside Corporation, 03-0808, p. 3 (La.App. 4 Cir. 11/26/03), 861 So.2d 716, 718. However, the question of whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject- to manifest error analysis on appeal. See Hutchison v. Seariver Maritime, Inc., 09-0410, p. 4 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, 992 citing Brown v. Kidney and Hypertension Associates, L.L.P., 08-0919, p. 7 (La.App. 1 Cir. 1/12/09), 5 So.3d 258, 264. Under the manifest error standard of review, in order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126, p. 5 (La. 7/6/06), 935 So.2d 646, 650.

DISCUSSION

The issue before this Court is whether the district court correctly ruled that Lucien had abandoned its claims for damages against Stallings and Solid Rock that arise out of their purported breaches of contract. The controlling statutory provision in this case is La. C.C.P. art. 561, which provides that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.

In Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784, the Louisiana Supreme Court held that Article 561 has been construed as imposing three requirements on plaintiffs: (1) a party take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record |7of the suit; and (3) the step must be taken within three years of the last step taken by either party. A “step” in the prosecution or defense is defined as taking formal action before the court which is intended to hasten the matter to judgment, or the taking of a deposition with or without formal notice. Id. Further, abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. Id. Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit. Id. at p. 15, 789.

In Clark, the Louisiana Supreme Court discussed the policy considerations underlying abandonment, and stated, in pertinent part:

Abandonment functions to relieve courts and parties of lingering claims by giving effect to the logical inference that a legislatively designated extended- period of litigation inactivity establishes the intent to abandon such claims. When the parties take no steps in the prosecution or defense of their claims during that legislatively ordained period, “the logical inference is that the party intends to abandon the claim and the law gives effect to this inference.” Young v. Laborde, 576 So.2d 551, 552 (La. App. 4th Cir.1991).
Abandonment is not a punitive concept; rather, it [sic] a balancing concept. Abandonment balances two equally sound, competing policy considerations: “on the one hand, the desire to see every litigant have his day in court, and not to lose same by some technical carelessness or unavoidable delay; on the other hand, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription.” Sanders[ v. Luke], 92 So.2d [156] at 159 [ (La.App. 1st Cir.1957) ]. The latter policy consideration parallels those served by prescriptive statutes-promoting legal finality, barring stale claims, and preventing prejudice to defendants. Gary v. Camden Fire Insurance Co., 96-0055 (La. 7/2/96), 676 So.2d 553. More precisely, the latter prescriptive purpose on which abandonment is based promotes “the legislative intent and judicial policy of finality, requiring that suits not be permitted to linger indefinitely, that the legal process be expedited where possible, and that abandoned cases be removed from crowded dockets.” 1 Judge Steven R. Plotkin, West Practice Group: Louisiana Civil Procedure 359 (2001).

Clark, 00-3010 at p, 10-11, 785 So.2d at 786-87.

After a review of the record, we find that the last action filed in the record that appears to hasten the action toward a judgment was the October 27, 2011 judgment maintaining Stallings’ exceptions of no right of action and prescription and dismissing Lucien’s claims against Stall-ings under the Private Works Act. This October 27, 2011 judgment also ordered the Materialman’s and Labor Lien filed by Lucien against Stallings to be stricken from the Orleans Parish mortgage records. We agree with the district court’s finding that Stallings “filing of a Motion for Contempt, the subsequent Judgment granting the Motion for Contempt, and plaintiffs payment of an award of sanctions to defendant, were not steps in the prosecution or defense of this matter; the Motion for Contempt did not move the matter forward or defend the matter; rather, it was designed to require the plaintiff to do what the Court had previously ordered plaintiff to do in Judgment dated October 27, 2011.”

As defined by La. C.C.P. art. 221, “[a] contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” Lucien paid the sanction of $500.00 to Stallings in August of 2012. Because the rule for contempt and resulting judgment did nothing to hasten the pending claims against Stallings and Solid Rock for breach of contract, we also find that neither was considered a step in the prosecution or defense of the action sufficient under La. C.C. P. art. 561 |nto interrupt the abandonment period. Accordingly, we find that this suit was abandoned on October 27, 2014, three years after the October 27, 2011 judgment was rendered maintaining Stallings’ exceptions of no right of action and prescription.

Because we find that this case was abandoned on October 27, 2014, we pretermit discussion of Lucien’s assignment of error regarding its motion for leave to file the second supplemental and amending petition filed on May 29, 2015. For these reasons, we affirm the February 18, 2016, district court judgment that denied the motion to set aside the judgment of abandonment.

AFFIRMED

      . Although Lucien refers to the contract on which the suit was based and claims it was attached to this May 30, 2000, petition, we are unable to find the contract in the record.

      . The amended petition did not change the name or procedural capacity of Lucien, although amendments to the procedural capacities of the named defendants were made. Children’s Hospital was served with the amended petition on January 31, 2001 and requested an extension of time within which to answer or otherwise plead, which was granted on March 7, 2001. The record shows that Children’s Hospital was again served with the amended petition on July 17, 2001. Solid Rock was served with the amended petition on July 17, 2001 and filed an answer on July 20, 2001. Stallings was served with the amended petition on July 20, 2001.

      . Although the November 29, 2001, opposition memorandum filed by Stallings addressed a motion to set for trial purportedly received from counsel for Lucien, the record contains only a motion to set for trial filed by Solid Rock.

      . The judgment did not include the name in which the lien was recorded or the recordation information.

      . On October 19, 2015, R. L. Lucien Tile Company, Inc. filed a motion for rehearing on motion for leave to file second supplemental and amending petition, which the district court denied on November 6, 2015.

      . We are not here determining that a rule for contempt can never serve as a step in the prosecution of a case sufficient to interrupt the three year period of abandonment.


author: Judge Roland L. Belsome

text:
    Jarrard A. GREEN, Individually and on Behalf of the Estate of Bernadine Green v. Dr. Joseph F. BUELL, Dr. Douglas P. Slakey, and Tulane University Hospital-Medical Center-Clinic
    NO. 2016-CA-0873
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      John-Michael Lawrence, 1100 Poydras Street, Suite 2900, PMB 204, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLANT
    Stewart E. Niles, Jr., Mark E. Kaufman, NILES, BOURQUE & KNIGHT, LLC, 909 Poydras Street, 35th Floor, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLEES/DR. JOSEPH F. BUELL, JR. AND DR. DOUGLAS P. SLAKEY
    Peter E. Sperling, Krystle M. Ferbos, FRILOT, LLC, 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE/UNI-VERSITY HEALTHCARE SYSTEM, L.C. D/B/A TULANE UNIVERSITY HOSPITAL AND CLINIC
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods)
   Judge Roland L. Belsome

| iThis is a medical malpractice case arising out of a kidney donation and transplant. The plaintiff, Jarrard Green donated a kidney to his sister Bernadine Green. Due to complications after the transplant, the donated kidney died. Subsequently, this lawsuit was filed alleging medical malpractice and lack of informed consent. The defendants, Dr. Joseph Buell, Dr. Douglas Slakey, and Tulane University Hospital, filed a motion for summary judgment. The trial court granted the motion for summary judgment dismissing the plaintiffs claims against the defendants. For the reasons that follow we affirm.

Statement of Facts

In 2009, Bernadine Green was suffering from end-stage renal disease and was on peritoneal dialysis. Given her condition, Ms. Green was in need of a kidney transplant. She was provided information on the transplant process and consented to be evaluated for a transplant. Later, it was determined that her brother Jarrard Green would be her kidney donor.

|aOn May 11, 2010, Ms. Green underwent surgery. The living-related renal transplant was performed by Dr. Joseph Buell. In the days that followed, the kidney failed and ultimately had to be removed. Ms. Green underwent several procedures during the days leading up to the kidney being removed. The transplant and all subsequent procedures became the subject of the medical malpractice complaint and lawsuit.

Shortly after Ms. Green’s release from the hospital, she and Jarrard Green initiated a Medical Review Panel process. The Medical Review Panel rendered an opinion that found in favor of the healthcare providers determining that the doctors did not breach the applicable standard of care. Following that finding, Jarrard Green and Bernadine Green filed a medical malpractice lawsuit alleging negligence and lack of informed consent.

In April 2016, approximately two years after the filing of the lawsuit and approximately six years from the initiation of the Medical Review Panel, the defendants filed motions for summary judgment on the grounds that the plaintiff lacked the expert testimony necessary to support the allegations in the petition. After a hearing on the motions for summary judgment, the trial court ruled in favor of the defendants. This appeal followed.

Assignment of Error

On appeal, the plaintiff contends that the trial court erred in granting summary judgment because an expert is not necessary to prove his claims and | sthere are genuine issues of material fact as to the negligence and the lack of informed consent.

Standard of Review

This Court reviews the granting of a motion for summary judgment under a de novo review. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B). Under La. C.C.P. art. 966(D)(1), “if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to . satisfy his evidentiary burden of proof at trial, there is ho genuine issue of material fact.

Discussion

On appeal, Jarrard Green argues that that the trial court erred in its granting of summary judgment on the issue of negligence and lack of informed consent due to the failure to obtain an expert witness. We disagree.

| ¿This case involves the healthcare providers’ alleged malpractice in performing a kidney transplant, as well as their failure to properly inform the patients of the risks involved with the procedures. The transplant occurred in 2010. In 2014, the Medical Review Panel issued its opinion and reasons finding that there was no evidence that the healthcare providers failed to meet the applicable standard of care. The motions for summary judgment filed by the healthcare providers and the hospital were argued before the trial court on June 24, 2016. At that time, the plaintiff had failed to retain an expert witness to support his claims.

The motions for summary judgment filed by the defendants contained the following evidence; 1) the medical review panel’s unanimous decision; 2) the plaintiffs supplemental responses to interrogatories confirming that no expert had been identified; and 3) numerous consent forms signed by Jarrard Green, Bernadine Green, or a representative on her behalf. In opposition to the motions for summary judgment, the plaintiff attached affidavits from Jarrard Green and Bernadine Green, and multiple printouts from medical information websites.

The defendants objected to the opposition filed by the plaintiff on several grounds. First, the filing of the opposition was untimely. In accordance with La. C.C.P. art. 966(B)(2), the opposition to a motion for summary judgment and all corresponding documents shall be served on the parties not less than fifteen days prior to the hearing. In this case, the opposition was filed just eight days prior to the hearing. Additionally, the exhibits attached to the opposition included ^documents that did not comply with La C.C.P. article 966(A)(4). Article 966 provides that “[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.” The trial court did not expressly rule on the motion to strike but did recognize, on the record, the inadmissibility of certain documentation presented when considering the merits of the motions for summary judgment.

The sole issue before this Court is whether the plaintiff can prove his allegations of medical malpractice without the testimony of an expert witness. The allegations of the petition in this case involve the medical procedures undergone by Jarrard Green as a kidney donor and Bernadine Green as the kidney recipient. Bernadine Green underwent a living-related renal transplant on May 11, 2010. In the days following the initial procedure, ultrasounds were performed to examine kidney function. Due to a decreased flow in the kidney an exploratory laparotomy and biopsy was done. On May 17, 2010, the kidney was non-functioning and had to be removed.

For a plaintiff to be successful in a medical malpractice action, he must prove by the preponderance of the evidence:' 1) the applicable standard of care pertaining to the defendant; 2) the breach of that standard of care; and 3) a causal connection between the breach and the damages suffered by the plaintiff. Generally, in order to establish the standard of care and whether that standard was | ^breached in a medical malpractice case, expert testimony is required. The exception to that requirement is when the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.

Cases in which expert testimony has been deemed unnecessary present instances “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.... ” Here, we are faced with alleged malpractice relating to a kidney transplant and other related procedures. Clearly, a layperson could not ascertain the standard of care in such a procedure without the guidance of an expert. Because the. plaintiff failed to produce an expert opinion that establishes the defendants breached the standard of care, the trial court was correct in granting summary judgment on the issue.

In addition to the negligence claim asserted by the plaintiff, he has also alleged a lack of informed consent. The defendants’ exhibits in support of the motions for summary judgment include nine signed consent forms. The forms appear to be signed by Jarrard Green, Bernadine Green, or by a relative on behalf of Bernadine Green. However, the affidavits each provide the same general denial that Jar-rard Green and Bernadine Green were never provided information on the risks of the procedures or alternatives to the procedures and no written or oral | ^consent was obtained 'from either patient. More specifically, the plaintiffs complaint regarding the lack of informed consent is based on the insufficiency of the risk involved with the transplant, mainly clotting, His assertion is that this was what lead to the transplant failing.

In Hondroulis v. Schuhmacher, the Louisiana Supreme Court presented the fundamental principles of the informed consent doctrine as follows:

The informed consent doctrine is based on the principle that every human being of adult years and sound mind has a right to determine what shall be done to his or her own body. Surgeons and other doctors are thus required to provide their patients with sufficient information to permit the patient himself to make an informed and intelligent decision on whether to submit to a proposed course of treatment. Where circumstances permit, the patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment.

In order to establish a lack of informed consent a plaintiff must prove the non-disclosure of a material risk and that there was a causal relationship between the non-disclosed risk and the patient’s damages. Hondroulis, explained that “a risk is material when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.” Therefore, materiality is a two-step process. The first step requires the identification of the risk and the probability of the risk occurring. The Hondroulis^Court held that to establish that first step of proving materiality “some expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risks exists and the likelihood of occurrence.” The second step focuses on whether a reasonable person in the patient’s position would consent to the procedure given the probability of known risks.

Once the defendants established the absence of factual support for the plaintiffs claims, the burden was on the plaintiff to establish that the defendants were not entitled to judgment as a matter of law. In this case, it was necessary to present the opinion of an expert witness in order to meet that burden; the plaintiff failed to do so. Accordingly, we find no error on the part of the trial court in granting the motions for summary judgment and dismissing the plaintiffs claims with prejudice.

AFFIRMED

LOBRANO, J„ CONCURS IN THE RESULT

      . Mr. Green is the plaintiff individually and on behalf of his deceased sibling Bernadine.

      . La. C.C.P. art. 966(D)(1).

      . Id.

      . La. C.C. P. art. 966.

      . Schultz v. Guoth, 10-0343, p. 5 (La. 1/19/11), 57 So.3d 1002, 1005.

      . Id.

      . Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1233-34.

      . On the issue of lack of informed consent, the hospital’s grounds for motion for summary judgment was that the duty to inform rests with the physicians not the hospital. See La.R.S.40:1157.2(P).

      . Although Bernadine Green’s affidavit disputes a signature on “Exhibit A,” there is no Exhibit A attached to the affidavit, nor is there any indication in the record what Exhibit A is purported to represent.

      . The Medical Review Panel addressed these issues finding no breach of the standard of care in the patient’s diagnostic workup prior to the transplant.

      . Hondroulis v. Schuhmacher, 553 So.2d 398, 411 (La. 1988)

      . Id. at 412.

      . Id.


text:
    IN RE: ENGLAND
    NO. 2016-CA-0933
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      Richard L. Ducote, 318 East Boston Street, 2nd Floor, Covington, LA 70438, COUNSEL FOR PLAINTIFF/APPELLANT
    Salvador I. Bivalacqua, Lauren M. Ber-geron, GALANTE & BIVALACQUA, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Roland L. Belsome

| TThis appeal is taken from the trial court’s granting of James England’s Petition for Tutorship. For the reasons that follow, we affirm.

Facts

James England and Alina Julia England were married in 2006 and divorced in 2015. Mr. and Ms. England are the parents of two daughters, S.E. and C.E. After a bitter custody trial, it was determined that joint, shared custody was in the best interest of the children; and Mr. England was declared the domiciliary parent.

Sometime in the course of the divorce and custody proceedings, the minor children were patients of Psychologist Marianne Walsh. Mr. England filed a lawsuit alleging that Dr. Walsh colluded with Ms. England to manipulate the custody proceedings and to alienate the children from him. The lawsuit seeking damages was filed by Mr. England in his individual capacity and on behalf of his minor children.

Due to the divorce, Mr. England was required to file a Petition for Tutorship as the natural father of the two minors to proceed with the lawsuit against Dr. laWalsh. The petition sought his appointment as the tutor and the appointment of his father, Dr. Leslie England, as the un-dertutor. The trial court held a hearing on the Petition for Tutorship and concluded that Mr. England should be appointed the minors’ natural tutor and his father, Dr. England, should be the undertutor. This appeal followed.

Assignments of Error

On appeal, Ms. England maintains that the trial court abused its discretion in appointing Mr. England as the natural tutor of the minor children, and his father as the undertutor. Ms. England argues that an independent third-party should have been appointed as tutor over the property of the minor children.

Discussion

Mr. England petitioned for tutorship as the natural father of the minor children. However, Ms. England seeks to have an independent third-party appointed as tutor in accordance with La. C.C.P. art. 4069. Article 4069 provides in pertinent part:

A. In exceptional cases and for good cause shown, the court may appoint a bank or another person as administrator or tutor of the property of the minor. This appointment may be made upon the court’s own motion or upon the motion of the tutor or other person entitled to the tutorship if no tutor has been previously appointed, or upon motion of any interested person after a contradictory hearing with the tutor, administrator, or person entitled to the tutorship or the administration.

Ms. England contends that because Mr. England has filed suit on his and the minor children’s behalf, a conflict of interest exists. Thus, she insists that “good cause” exists under article 4069. In support of this contention, she cites to In re Tutorship of Werling. In Werling, the minor’s mother killed his father, Carl Werling, Jr. The decedent had a substantial amount of life insurance at the time of his death. The minor’s mother was the primary beneficiary of the insurance proceeds, and the minor was the secondary beneficiary.

Pursuant to article 4069, a friend and personal attorney to the decedent filed a petition requesting to be appointed as separate tutor of the property of the minor, or, in the alternative, for some other third-party to be appointed by the court. Because the minor’s mother killed her husband, she could potentially be disqualified as the first named beneficiary of the death benefits. Thus, the minor would become the beneficiary. The petitioner argued that allowing the mother to remain as natural tutor over the minor’s property created an “exceptional case” under article 4069 that established the need for the protection of a separate tutor. This Court agreed and ordered the trial court, on remand, to hold an expedited hearing to appoint a separate tutor for the minor.

Clearly, Werling is a case with exceptional circumstances that gave rise to “good cause” for the appointment of a separate tutor. In the instant case, there is not an obvious “good cause” need for the appointment of a third-party tutor as in Werling. Although Ms. England maintains that there is a conflict of interest between the father and the minor children, the record before us does not support that contention. Additionally, as noted in Matter of Sanches, “the statute clearly gives the trial court discretion to determine whether a separate tutor over the ^property is necessary or in the best interests of the child.” Accordingly, under these circumstances, we do not find the trial court abused its discretion in failing to find an exceptional. circumstance with good cause shown to appoint a third-party as tutor.

Conclusion

For the reasons discussed, this Court affirms the trial court’s appointment of James England as the minor children’s natural tutor and Dr. Leslie England as the minor children’s undertutor.

AFFIRMED

JENKINS, J., CONCURS IN THE RESULT

      . DOB 3/21/2007.

      . DOB 7/16/2008.

      .The trial court’s judgment determining cus- • tody is the subject of a pending appeal in this Court filed by Ms. England.

      . La. C.C.P. art. 4069 (emphasis added).

      . 518 So.2d 1177 (La.App. 4th Cir. 1988).

      . Initially, the matter was remanded to the trial court after this Court reversed the granting of exceptions of no cause and no right of action. In re Werling, 459 So.2d 758 (La.App. 4th Cir. 1984). On remand, the trial court failed to follow the direction of this Court and found the matter to be moot. That decision was appealed resulting in this Court’s order to the lower court for re-allotment and expedited consideration. In re Werling, 518 So.2d 1177 (La.App. 4th Cir. 1988).

      . 619 So.2d 799, 802, 803 n.3 (La.App. 1st Cir. 1993).