Bertha Coleman, Sarah Cousin, Tyrone Doss, Sterling Doucette, David Gilyot, James Ellis, Diana Hayes, Rodney Lemon, Richard Leon, David Nixon, Augustine Ogbuefi, Charles Williams, Yolanda Dupaty Zeigler v. the Board of Directors of Eastover Property Owners Association, Eastover Neighborhood Improvement and Security District, the Golf Club of New Orleans, LLC, Delta Mining, Inc., Eastover Commercial Properties, LLC, A/K/A Eastover Commercial Property, LLC

• Court: Louisiana Court of Appeal
• Decided: September 21, 2023
• Docket: 2023-CA-0233
• Status: Published

Opinion

BERTHA COLEMAN, SARAH * NO. 2023-CA-0233 COUSIN, TYRONE DOSS, STERLING DOUCETTE, * DAVID GILYOT, JAMES COURT OF APPEAL ELLIS, DIANA HAYES, * RODNEY LEMON, RICHARD FOURTH CIRCUIT LEON, DAVID NIXON, * AUGUSTINE OGBUEFI, STATE OF LOUISIANA CHARLES WILLIAMS, ******* YOLANDA DUPATY ZEIGLER, ET AL.

VERSUS

THE BOARD OF DIRECTORS OF EASTOVER PROPERTY OWNERS ASSOCIATION, EASTOVER NEIGHBORHOOD IMPROVEMENT AND SECURITY DISTRICT, THE GOLF CLUB OF NEW ORLEANS, LLC, DELTA MINING, INC., EASTOVER COMMERCIAL PROPERTIES, LLC, A/K/A EASTOVER COMMERCIAL PROPERTY, LLC, ET AL.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-07707, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Karen K. Herman)

Shermin S. Khan THE KHAN LAW FIRM 2714 Canal St., Suite 300 New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT Colin D. Sherman C.E. Sorey, II (Pro Hac Vice) Brett E. Emmanuel SHERMAN & LACEY, LLP 118 N. Royal Street, Suite 702 Mobile, AL 36602

COUNSEL FOR DEFENDANT/APPELLEE, THE BOARD OF DIRECTORS OF EASTOVER PROPERTY OWNERS ASSOCIATION, INC.

Lance B. Williams McCRANIE SISTRUNK ANZELMO HARDY MCDANIEL & WELCH, LLC 195 Greenbriar Boulevard, Suite 200 Covington, LA 70433

COUNSEL FOR DEFENDANTS/APPELLEES, EASTOVER EXCAVATORS, LLC, UTILITY CONSTRUCTORS, INC., AND BRIERFIELD INSURANCE COMPANY

APPEAL DISMISSED

SEPTEMBER 21, 2023 DLD The plaintiffs, Tyrone Doss, Sterling Doucette, David Nixon, and Leon PAB KKH Richard, seek review of the district court’s judgment granting an ex parte motion

to dismiss on the grounds of abandonment in favor of the defendants, Eastover

Excavators, LLC, Utility Constructors, Inc., Brierfield Insurance Company, and the

Board of Directors of Eastover Property Owners Association, Inc. For the

following reasons, we dismiss this appeal as untimely.

The events giving rise to this case involve the creation and excavation of a

borrow pit on the Gator Golf Course at Eastover Country Club in New Orleans

East, which had been refurbished after Hurricane Katrina. On August 8, 2014, the

plaintiffs filed a petition for injunctive relief, and on then on March 30, 2015, they

filed a “Superseding Petition for Injunctive Relief, For Conservatory Writ of

Attachment, For Seizure of the Borrow Pit into Custodia Legis, For an Order that

All Net Funds Generated From Pit Excavation be Deposited to the registry of the

Court for the Assessment of Special Damages to Plaintiffs, for Judgment Against

All Defendants Responsible Pursuant to Civil Code Articles 667, 2315, 2322, and

1 2324(A), and for Other Legal and Equitable Relief.” Active litigation before the

court continued up until August 12, 2019, when plaintiffs’ counsel filed a motion

to set trial/status conference, which was scheduled for September 5, 2019, but

never took place. On May 18, 2020, plaintiffs’ counsel sent a letter to his clients

informing them of his termination of representation.

On September 16, 2022, the defendants filed an ex parte motion to dismiss

on the basis of abandonment pursuant to La. C.C.P. art. 5611 because no party had

taken any “step” in the prosecution of this matter for over three years. The

plaintiffs enrolled new counsel and filed an opposition to the motion on October

14, 2022. Rather than issuing an ex parte judgment as required by La. C.C.P. art.

561, the district court set the matter for hearing. At the hearing on November 17,

2022, the district court heard the arguments of counsel and allowed for the

introduction of evidence. Following the November 17, 2022 hearing, the district

court entered a judgment granting the defendants’ ex parte motion to dismiss on

the grounds of abandonment. The judgment was signed, and the notice of signing

the judgment was mailed on November 17, 2022. On January 19, 2023, the

plaintiffs filed a motion for devolutive appeal. The defendants filed a motion to

dismiss the appeal as untimely on June 12, 2023.

1 La. C.C.P. art. 561was amended by Act 5 (H.B. 230) of the 2023 Regular Session of the

Louisiana Legislature, with an effective date of August 1, 2023. However, when the instant case was before the district court and this appeal was taken, the version of La. C.C.P. art. 561 amended by Act 361 (H.B. 966) of the 2007 Regular Legislative Session, with an effective date of July 9, 2007, was in effect. Accordingly, for purposes of this opinion, it will be the 2007 version of La. C.C.P. art. which is referenced in this opinion.

2 “An action, except as provided in Subparagraph (2) of this Paragraph, 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, unless it is a succession proceeding[.]” La.

C.C.P. art. 561(A)(1). “This provision shall be operative without formal order, but,

on ex parte motion . . . [and] the trial court shall enter a formal order of dismissal

as of the date of its abandonment.” La. C.C.P. art. 561(A)(3). “A motion to set

aside a dismissal may be made only within thirty days of the date of the sheriff’s

service of the order of dismissal.” La. C.C.P. art. 561(A)(4). “An appeal of an

order of dismissal may be taken only within sixty days of the date of the sheriff’s

service of the order of dismissal. An appeal of an order of denial [of a motion to

set aside a dismissal] may be taken only within sixty days of the date of the clerk’s

mailing of the order of denial.” La. C.C.P. art. 561(A)(5).

The dismissal of a case as abandoned is a final, appealable judgment. See

Yates v. Bailey, 34,274 (La. App. 2 Cir. 12/6/00), 774 So.2d 1103. As described

above, an appeal of an order of dismissal may only be taken within sixty days of

the date of the clerk’s mailing of the order of denial of a motion to set aside or

within sixty days of the date of the sheriff’s service of the order of dismissal. See

La. C.C.P. art. 561.

In the instant case, the defendants filed an ex parte motion to dismiss on the

grounds of abandonment pursuant to La. C.C.P. art. 561 in order to reflect what

occurred on August 12, 2022 (the last date on which a step in the prosecution or

defense of the case took place) by operation of law. Thereupon, the district court

3 should have issued an order of dismissal on that date. See La. C.C.P. art.

561(A)(3). However, due to outstanding fees owed by the plaintiffs, the judgment

of dismissal was not signed by the district court. The plaintiffs filed an

“Opposition to the Motion to Dismiss” and attached exhibits to the motion. The

district court apparently treated the opposition as a motion to set aside under La.

C.C.P. art. 561(A)(4) and a contradictory hearing was held on November 17, 2022,

where the plaintiffs submitted evidence as to why they believed the order of

dismissal should not be granted. Following the hearing, the district court took the

matter under advisement, and then agreed with the defendants’ position that the

matter was abandoned as a matter of law. The district court also mailed the notice

of judgment and written reasons on November 17, 2022. The plaintiffs did not file

their notice of appeal until January 19, 2023.

As discussed above, a plaintiff only has sixty days to appeal “an order of

dismissal” after “service.” Likewise, a plaintiff only has sixty days to appeal the

denial of a “motion to set aside a dismissal” from the date of “mailing.”

Considering that the district court treated the plaintiffs’ opposition as a motion to

set aside, pursuant to the clear language of La. C.C.P. art. 561(A)(5), the plaintiffs

had sixty days from November 17, 2022 in which to take their appeal. Under

normal circumstances, January 16, 2023 would have been the sixtieth day, but

because Martin Luther King, Jr. Day, a legal holiday, fell on that date, the plaintiffs

had until January 17, 2023 to file their notice of appeal. This did not happen. The

4 plaintiffs waited until January 19, 2023 to file their notice of appeal. Accordingly,

the plaintiffs’ appeal is untimely.

For the foregoing reasons, the defendants’ motion to dismiss appeal is

GRANTED and this appeal is DISMISSED.