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Lassere v. State3/28/2001
Plaintiff, Gaspard Lassere, appeals from the trial court's judgment granting the motion for summary judgment of defendants, the State of Louisiana, Department of Health and Hospitals, Office of Public Health ("DHH"), and Dr. Darren Gannuch. For the following reasons, we vacate and remand.
FACTS AND PROCEDURAL HISTORY
On January 9, 1996, plaintiff, the widower of Michelle Lassere, filed the instant wrongful death action individually and on behalf of his three minor children, Brandon, Gabriel and Christyn, against DHH, Dr. Victor Gonzales and Dr. Darren Gannuch. In his petition, plaintiff claimed that his wife was prematurely discharged from Leonard J. Chabert Medical Center in Houma, Louisiana, after having been diagnosed as having a severe mental disorder with suicidal tendencies. According to the petition, five days after her discharge, Michelle Lassere committed suicide.
Trial in this matter was eventually set for September 27, 28 and 29, 1999. However, on August 25, 1999, DHH and Dr. Gannuch filed a motion for summary judgment, contending that they were entitled to judgment in their favor as a matter of law because plaintiff was unable to establish through expert testimony that defendants had deviated from the standard of care in their treatment of Mrs. Lassere. The trial court scheduled a hearing on the motion for summary judgment for September 10, 1999, seventeen days prior to the scheduled trial date. However, plaintiff (through counsel) was not served with the notice of the hearing on the motion for summary judgment until September 9, 1999, the day before the scheduled hearing.
Counsel for plaintiff appeared at the September 10, 1999, and objected to the hearing, noting that plaintiff was entitled to ten days notice of the hearing. The court then instructed the parties to submit the motion for summary judgment on memoranda and ordered plaintiff's counsel to file his memorandum in opposition to the summary judgment by September 17, 1999, ten days before the scheduled trial. However, plaintiff's counsel reiterated that he was objecting to the procedure and further noted that a ruling on a motion for summary judgment could not be rendered less than ten days prior to a scheduled trial date.
Nonetheless, in accordance with the court's order, plaintiff's counsel filed an opposition to the motion for summary judgment on September 17, 1999, and the trial court rendered judgment, granting defendants' motion for summary judgment on September 22, 1999, only five days before the scheduled trial date.
From this judgment, plaintiff appeals, contending that the trial court erred in: (1) granting a motion for summary judgment when plaintiff, through counsel, was served with notice of the motion less than one day prior to the scheduled hearing on the motion; (2) rendering a judgment on a motion for summary judgment only five days prior to the scheduled trial on the merits of the main demand; and (3) granting defendants' motion for summary judgment when genuine issues of material fact existed.
DISCUSSION
As set forth in his first and second assignments of error, plaintiff avers that the trial court erred in granting summary judgment where the notice requirements and time limitations of LSA-C.C.P. art. 966 were not complied with. Defendants, on the other hand, suggest that any prejudice to plaintiff resulting from the failure to adhere to the time limitations regarding notice and rendition of summary judgment "would be outweighed by prejudice to the defendants in being forced to trial in a case wherein no material issue of fact existed."
Louisiana Code of Civil Procedure article 966 sets out the requireme
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