Leticia Hernandez-Gonzalez v. Board of Commissioners of Port of New Orleans

• Court: Louisiana Court of Appeal
• Decided: November 4, 2019
• Docket: 2015-CA-0948
• Status: Published

Opinion

LETICIA HERNANDEZ- * NO. 2015-CA-0948 GONZALEZ, ET AL. * VERSUS COURT OF APPEAL * BOARD OF COMMISSIONERS FOURTH CIRCUIT OF PORT OF NEW ORLEANS, * ET AL. STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-16139, DIVISION “L-6” Honorable Kern A. Reese, Judge ****** Judge Tiffany G. Chase ****** (Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase)

JENKINS, J., CONCURS IN THE RESULT

Ivan Alberto Orihuela RIGUER SILVA, LLC 3213 Florida Avenue Suite C Kenner, LA 70065

COUNSEL FOR PLAINTIFF/APPELLANT

Leo Raymond McAloon, III Ernest Paul Gieger, Jr. GIEGER LABORDE & LAPEROUSE, L.L.C. 701 Poydras Street Suit 4800 New Orleans, LA 70139-4800

Thomas A. Rayer, Jr. Eric J. Blevins WAGNER, BAGOT & RAYER, LLP 601 Poydras Street Pan American Life Center-Suite 1600 New Orleans, LA 70130-6158

COUNSEL FOR DEFENDANTS/APPELLEES

APPEAL DISMISSED AS ABANDONED NOVEMBER 4, 2019 Leticia Hernandez-Gonzalez (hereinafter “Mrs. Hernandez-Gonzalez”) seeks

review of the trial court’s November 8, 2011 judgment granting summary

judgment in favor of Pacorini Holding, LLC (hereinafter “Pacorini”) and the June

4, 2012 judgment granting summary judgment in favor of the Board of

Commissioners of Port of New Orleans (hereinafter “the BOC”). After

consideration of the record before this Court, and the applicable law, we dismiss

Mrs. Hernandez-Gonzalez’s appeal as abandoned.

Procedural History

Mrs. Hernandez-Gonzalez filed a petition for damages on December 24,

2007, naming Pacorini and the BOC as defendants. Mrs. Hernandez-Gonzalez

alleged that the negligent acts of Pacorini and the BOC ultimately led to the death

of her husband.1 On March 28, 2011, Pacorini filed a motion for summary

judgment.2 By judgment dated November 8, 2011, the trial court granted Pacorini’s

motion for summary judgment, dismissing the claims against it asserted in the

petition for damages. Mrs. Hernandez-Gonzalez filed a motion for appeal of the

1 The underlying facts of this matter are not relevant to the current opinion. 2 Pacorini initially filed a motion for summary judgment, against Mrs. Hernandez-Gonzalez, on October 2, 2008.

2 trial court’s judgment on December 12, 2011. The order was signed by the trial

court on December 20, 2011.

On April 16, 2012, the BOC also filed a motion for summary judgment. By

judgment dated June 4, 2012, the trial court granted the BOC’s motion for

summary judgment, dismissing the claims against it by Mrs. Hernandez-Gonzalez.

On July 5, 2012, Mrs. Hernandez-Gonzalez filed a motion for appeal of the trial

court’s judgment granting the BOC’s motion for summary judgment. The trial

court signed the order granting the motion on July 10, 2012.

On July 26, 2012, the trial court issued a cost notice to Mrs. Hernandez-

Gonzalez advising that the cost of the appeal was due August 15, 2012. Mrs.

Hernandez-Gonzalez did not pay the cost until July 22, 2015. Thereafter, the BOC

filed two motions to dismiss the appeal as abandoned on September 4, 2015. The

BOC filed one motion in the trial court and a second, identical, motion with this

Court. On September 16, 2015, this Court denied the BOC’s motion to dismiss the

appeal.

However, the BOC’s motion to dismiss the appeal filed in the trial court was

granted on October 19, 2015. On the same date, Mrs. Hernandez-Gonzalez filed a

motion to suspend briefing schedule with this Court. In her motion, she provided

that the briefing delays should be suspended in light of her desire to appeal the trial

court’s judgment granting the BOC’s motion to dismiss appeal. On October 21,

2015, the BOC filed a re-urged motion to dismiss appeal arguing that the appeal

should be dismissed in light of the trial court’s judgment dismissing the appeal. On

October 23, 2015, this Court granted the motion to suspend briefing schedule and

denied the BOC’s re-urged motion to dismiss appeal.

3 On November 17, 2015, Mrs. Hernandez-Gonzalez filed a motion to set

aside judgment of dismissal in the trial court. Due to issues regarding service of

process, the motion to set aside judgment of dismissal was not heard until

November 30, 2018.3 By judgment dated November 30, 2018, the trial court denied

the motion to set aside judgment. Mrs. Hernandez-Gonzalez filed a motion for

appeal with the trial court on January 21, 2019. This motion sought to appeal the

October 19, 2015 judgment dismissing the appeal and the November 30, 2018

judgment denying her motion to set aside judgment.4

On May 22, 2019, this Court ordered Mrs. Hernandez-Gonzalez to show

cause, within fifteen (15) days, why the current appeal should not be dismissed as

abandoned. On June 6, 2019, she responded to this Court’s order, arguing that her

appeal should not be dismissed as abandoned because the briefing delays were

suspended and no notice was provided, from this Court, that the appeal would be

dismissed in 30 days unless a brief was filed.

On June 26, 2019, this Court lifted the suspension and issued a notice of

briefing delays. Pursuant to this Court’s notice, Mrs. Hernandez-Gonzalez’s brief

was due July 22, 2019 with the BOC’s and Pacorini’s briefs due August 12, 2019.

On August 9, 2019, this Court issued a notice to Mrs. Hernandez-Gonzalez

advising that her brief was past due and as a result, her right to oral argument had

been forfeited pursuant to Rule 2-12.12 of the Louisiana Uniform Rules, Courts of

Appeal. The notice further advised that the appeal would be dismissed if a brief

was not received within thirty (30) days of the mailing of the notice. Mrs.

3 The original hearing date of January 15, 2016 did not proceed due to lack of service. Mrs. Hernandez-Gonzalez subsequently filed a motion to reset hearing on motion to set aside judgment of dismissal on August 21, 2018. 4 As of the date of this opinion, the appeal of these judgments has not been lodged with this Court.

4 Hernandez-Gonzalez’s brief was not filed until September 6, 2019. The BOC’s

brief was received on September 23, 2019. After receiving an extension from this

Court to file its brief, Pacorini’s brief was received on October 3, 2019.

Discussion

Pursuant to La. C.C.P. art. 2165, an appeal is abandoned when the parties do

not take any steps toward the prosecution or disposition, of the matter, for the

period provided in the appellate court rules. See also Bell v. Schiro, 2000-2024, p.

3 (La.App. 4 Cir. 3/12/03), 842 So.2d 1139, 1142 (citing La. C.C.P. art. 561).

Local Rules, Rule 20, Louisiana Court of Appeal, Fourth Circuit provides that

“when no activity occurs in an appeal for three years, the appeal shall be dismissed

as abandoned.”

In the case sub judice, the last step towards the prosecution or disposition of

the matter, by either party, was the filing of the re-urged motion to dismiss filed by

the BOC on October 21, 2015. Therefore, Mrs. Hernandez-Gonzalez had until

October 21, 2018 to proceed with the appeal. The record is clear that Mrs.

Hernandez-Gonzalez has been dilatory with her pursuit of this matter. No activity

occurred in this appeal until Mrs. Hernandez-Gonzalez filed a response to this

Court’s rule to show cause order on June 6, 2019. Accordingly, this appeal is

dismissed as abandoned.

Decree

For the reasons stated herein, this appeal is dismissed as abandoned.

APPEAL DISMISSED AS ABANDONED