Beverly Lebouef v. Dr. Joseph O'Donnell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 11-921

BEVERLY A. LEBOUEF VERSUS DR. JOSEPH O'DONNELL, ET AL.

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APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2008-3946

HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

********** MARC T. AMY JUDGE **********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.

REMANDED. Richard B. Cappel Raggio, Cappel, Chozen & Berniard Post Office Box 820 Lake Charles, LA 70602 (337) 436-9481 COUNSEL FOR DEFENDANT/APPELLANT:

Dr. Joseph O'Donnell John Gregory Bergstedt Attorney at Law Post Office Box 4886 Lake Charles, LA 70606-4886 (337) 478-8595 COUNSEL FOR DEFENDANTS/APPELLEES:

Louisiana Medical Mutual Insurance Company Dr. Rachel Chua

Randall Earl Hart Attorney at Law 1301 Common St. Lake Charles, LA 70601 (337) 439-2450 COUNSEL FOR PLAINTIFF/APPELLEE:

Beverly LeBouef AMY, Judge.

The defendant-appellant, Dr. Joseph O’Donnell, has filed a peremptory exception of prescription in this court. The plaintiff-appellee, Beverly LeBouef, has filed a Motion for Remand on Defendant’s Peremptory Exception of Prescription. We hereby remand this appeal.

Louisiana Code of Civil Procedure Article 2163 states:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.

If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

Pursuant to the second paragraph of Article 2163, the plaintiff has demanded that this case be remanded to the trial court for a trial of the exception of prescription. Therefore, we hereby remand this matter to the trial court for an adjudication of the exception of prescription.

REMANDED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.

Rule 2-16.3 Uniform Rules, Court of Appeal.