Delacruz v. Anadarko Petroleum Corp.

157 So. 3d 790, 2014 La.App. 4 Cir. 0433, 2014 La. App. LEXIS 3219, 2014 La. App. Unpub. LEXIS 677, 2014 WL 6807259
CourtLouisiana Court of Appeal
DecidedDecember 3, 2014
DocketNo. 2014-CA-0433
StatusPublished
Cited by7 cases

This text of 157 So. 3d 790 (Delacruz v. Anadarko Petroleum Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delacruz v. Anadarko Petroleum Corp., 157 So. 3d 790, 2014 La.App. 4 Cir. 0433, 2014 La. App. LEXIS 3219, 2014 La. App. Unpub. LEXIS 677, 2014 WL 6807259 (La. Ct. App. 2014).

Opinions

DANIEL L. DYSART, Judge.

J^Plaintiffs-appellants, Billy Delacruz, Louis Perkins and David East, Jr. (collectively, “Plaintiffs”), appeal the district court’s denial of their Motion to Set Aside Judgment of Dismissal and the trial court’s judgment dismissing this lawsuit as abandoned. For the reasons that follow, we vacate the ruling, reverse the dismissal, reinstate the case, and remand for further proceedings.

BACKGROUND

On March 10, 2004, Plaintiffs filed a Seaman’s Complaint against defendant-ap-pellee, Anadarko Petroleum Corporation (“APC”). According to the Complaint, on October 18, 2003, Plaintiffs were crew-members of the M/V BAM BAM, a commercial oyster fishing vessel owned and then being operated by Billy Delacruz in Black Bay, which struck “an improperly submerged oil/gas line” owned by APC. Plaintiffs claimed to have suffered “severe, permanent and disabling physical and mental injuries,” in addition to damages to Mr. Delacruz’s vessel.

The matter was removed to federal court; however, by order dated May 26, 2004, the matter was remanded back to the 25th Judicial District Court for the Parish of Plaquemines. Plaintiffs then filed a First Amended Petition, adding | gAnadarko E & P Company, LP, as a defendant.1 Plaintiffs alleged that the submerged oil/gas pipeline was owned by APC and Anadarko E & P Company.

On July 9, 2010, Plaintiffs filed a Motion to Set Status Conference, to Set Deadlines and to Set a Trial Date.2 A telephone pretrial status conference was held on August 19, 2010 and a jury trial was scheduled to commence on August 30, 2011. On July 7, 2011, a Motion to Continue the trial was filed by Plaintiffs following a July 6, 2011 automobile accident in which counsel for Plaintiffs was injured. By Order dated July 19, 2011, the trial was continued without date.

On September 9, 2013, Plaintiffs filed a Motion to Set Scheduling Conference [792]*792Wherein a Pretrial Conference and a Trial Date Might be Set. A telephone scheduling conference was then set for October 1, 2013.

Thereafter, on September 17, 2018, APC filed an Ex Parte Motion to Dismiss for Abandonment with an incorporated supporting memorandum. APC took the position that “no party ha[d] taken any step in the prosecution or defense of the matter in the trial or appellate court for a period in excess of three (3) years.” APC’s motion was set for hearing on November 18, 2013. On November 4, 2013, APC filed a supplemental supporting memorandum in which it alleged that, the “record shows no activity for three years after August 24, 2010 other than the filing and grating of a motion to continue ‘without date of any hearings, conferences, or meeting[s.]’ ”

The October 1, 2013 telephone conference took place as scheduled “among counsel for the parties and the Court,” and a jury trial was re-set for October 28, |s2014.3 APC’s Motion to Dismiss was then heard on November 18, 2013. After hearing argument of counsel, the trial court indicated that it found the cáse to be abandoned and by judgment dated December 3, 2013, APC’s motion was granted. The record reflects that notice of the judgment was issued on the same date of the judgment.

On December 19, 2013, Plaintiffs filed a Motion to Set Aside Judgment with an incorporated supporting memorandum, in which Plaintiffs maintained that APC’s participation in the October 1, 2013 telephone status conference to select the October 28, 2014 trial date “constituted a waiver of defendant’s claim of abandonment.”

Plaintiffs’ Motion was then set for February 24, 2014. In opposition to Plaintiffs’ Motion, APC maintained that Plaintiffs’ Motion (which APC characterized as “more accurately ... a Motion for New Trial”), raised no issues that were not present when the hearing on APC’s Motion to Dismiss was heard. It further argued that a Motion to Set Aside may be filed only “when the Court has entered an order of dismissal on an ex parte basis.” APC argued that counsel for Plaintiffs expressly agreed in advance of the October 1, 2013 status conference that his participation in that conference would not constitute a waiver of his abandonment defense.4

After the February 24, 2014, hearing, the trial court denied Plaintiffs’ Motion to Set Aside Order of Dismissal for Abandonment by judgment dated |4March 6, 2014. Notice of the judgment was issued that date. The trial court issued Reasons for Judgment on March 28, 2014. In those reasons, the trial court noted that the Motion to Set Aside was untimely. After noting that the Motion to Set Aside “should have been framed as a motion for new trial,” the trial court concluded that, under La. C.C.Pr. art 1974:

[A] motion for new trial must be filed within seven days, exclusive of legal holidays, from the day after the mailing of notice of judgment. In the instant case, the Judgment was mailed on December 3, 2013. This, the latest day plaintiff could have timely filed a motion for new trial was December 12, 2013. Plaintiffs filed their motion seven days late.

The trial court’s Reasons for Judgment also found that Plaintiffs’ Motion to Set Aside was without merit insofar as Plaintiffs were unable to show that their ease [793]*793was not abandoned under La. C.C.Pr. art. 561. The trial court concluded that Plaintiffs’ “Motion to Continue the August 30, 2011 trial “without date’ did not set a date certain for the trial, and therefore it did not signal plaintiffs’ intention to move the case forward.”

Plaintiffs filed a Motion and Order for Appeal on March 12, 2014.

DISCUSSION

Timeliness of Appeal

After the appeal was lodged with this Court, APC filed a Motion to Dismiss Appeal as Untimely. In that Motion, APC maintains that Plaintiffs’ Motion to Set Aside Order of Dismissal was essentially an untimely Motion for New Trial.5 Thus, APC argues, the appeal delays commenced with the trial court’s December 2, 2013 judgment. Accordingly, APC contends that the period for taking an appeal lsof that judgment expired on February 15, 2014, approximately a month before Plaintiffs filed their Motion for Appeal.6

Under La. C.C.P. art. 561, a case is considered abandoned “when the parties fail to take any step in its prosecution or defense in the trial court for . a period of three years.” That Article further provides:

This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

La. C.C.P. art. 561A(3).

A party seeking to set aside a judgment dismissing an action as abandoned must file a motion to set aside the judgment “within thirty days of the date of the sheriffs service of the order of dismissal.” La. C.C.P. art. 561A(4). APC maintains that, because the trial court held a contradictory hearing on the Motion to Dismiss for Abandonment, rather than dismissing the case on an ex parte basis (as the Motion was filed), Plaintiffs may not avail themselves of the 30 day period for moving to set aside the dismissal.7 Rather, according to APC, Plaintiffs were relegated to a Motion for New Trial pursuant to La. C.C.P. art.

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157 So. 3d 790, 2014 La.App. 4 Cir. 0433, 2014 La. App. LEXIS 3219, 2014 La. App. Unpub. LEXIS 677, 2014 WL 6807259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delacruz-v-anadarko-petroleum-corp-lactapp-2014.