Lewis v. Digital Cable & Communications North

179 So. 3d 840, 15 La.App. 5 Cir. 345, 2015 La. App. LEXIS 2356, 2015 WL 7423211
CourtLouisiana Court of Appeal
DecidedNovember 19, 2015
DocketNo. 15-CA-345
StatusPublished
Cited by6 cases

This text of 179 So. 3d 840 (Lewis v. Digital Cable & Communications North) 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
Lewis v. Digital Cable & Communications North, 179 So. 3d 840, 15 La.App. 5 Cir. 345, 2015 La. App. LEXIS 2356, 2015 WL 7423211 (La. Ct. App. 2015).

Opinion

ROBERT M. MURPHY, Judge.

| gPlaintiff-appellant, Kevin Lewis (“Plaintiff’), appeals from the trial court’s judgment denying his motion to vacate the ex parte judgment of dismissal for abandonment of his claims against Defendant-appellee, Digital Cable and Communications, Inc. (“Digital Cable”), as well as the trial court’s ex parte judgment dismissing his claims for abandonment. For the reasons that follow, we affirm both judgments of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 8, 2008, Plaintiff, who was employed by Digital Cable, filed a petition against Digital Cable seeking damages for injuries he sustained as a result of Digital Cable’s alleged tortious conduct.

On November 17, 2009, the trial court entered an order of preliminary default against Digital Cable, pursuant to Plaintiffs motion. Nearly five years later, on September 16,2014, Plaintiff filed a motion for confirmation of default judgment. The trial court set a hearing on this motion for October 20, 2014. Yet, prior to the hearing, on October 16, 2014, Digital Cable filed an ex parte motion Rand order of dismissal for abandonment, wherein Digital Cable asserted that it was entitled to an ex parte order of dismissal pursuant to La. C.C.P. art. 561 because more than three years had lapsed since the date of the last step in the prosecution of the action — the November 17, 2009 order of preliminary default against Digital Cable. Plaintiff filed an opposition to Digital Cable’s motion to dismiss for abandonment, wherein he argued that abandonment was interrupted by the service of a notice of deposition of his treating physician on November 28; 2011.

In support of this argument, Plaintiff attached to his opposition a copy of a letter dated November 24, 2011 from his treating physician, Dr. Godwin Ogbuokiri, to his counsel confirming a deposition date and including an affidavit executed by Dr. Og-buokiri. Plaintiff also attached a copy of a notice of deposition addressed to Dr. Og-buokiri, with an accompanying certificate of service, stating that “a copy of the foregoing pleading/discovery was served upon all counsel of record and/or parties by placing same in United States Mail, properly addressed with postage prepaid, and/or by facsimile or hand-delivery, this 28th day of November, 2011.”

At the motion hearing on November 5, 2014, Digital Cable argued that the November 28, 2011 notice of deposition addressed to Dr. Ogbuokiri did not serve to interrupt the abandonment period because the certificate of service was not authenticated, and thus, was inadequate proof that the notice of deposition had in fact been served on all parties, in accordance with Article 561. The trial court disagreed and denied Digital Cable’s motion to dismiss.

Following that ruling, Digital Cable filed a timely writ application with this Court. Based upon the Louisiana Supreme Court’s opinion in Dunn v. City of Kenner, 09-1108 (La.9/18/09), 17 So.3d 400, this Court held that because the copy of the certificate of service attached to the notice of deposition was neither | introduced into evidence, nor authenticated at the November 5, 2014 hearing, there was inadequate proof that the notice of deposition was served on all parties, as required by Article 561. Lewis v. Digital Cable and Communications, Inc., 14-C-926 (La.App. 5 Cir. 12/18/14) (unpublished writ disposition). Accordingly, this Court granted Digital Cable’s writ application, vacated the [843]*843trial court’s denial of Digital Cable’s motion to dismiss, and remanded the matter for further proceedings. Id.

Subsequently, Digital Cable re-urged its ex parte order seeking a dismissal of Plaintiffs claims for abandonment, which the trial court signed on January 13, 2015. In response, Plaintiff filed a motion to vacate the ex parte order of dismissal for abandonment. The trial court set Plaintiffs motion to vacate for hearing on March 2, 2015.

At the March 2, 2015 motion hearing, Plaintiff again argued that the abandonment period was interrupted on November 28, 2011, when Plaintiff served a notice of deposition of Dr.'Ogbuokiri on all parties. In support of this argument, Plaintiff offered the testimony of his counsel of record, Pius Obioha, to authenticate the November 28, 2011 certificate of service attached to the notice of deposition addressed to Dr. Ogbuokiri.

IsMr. Obioha testified that the copy of the notice' of deposition and the accompanying certificate of service that Plaintiff was relying on, was sent to him via facsimile from Dr. Ogbuokiri’s office on October 18, 2014, after he learned that “somebody in [his] office may have forgot to — forgotten to make .a copy for the file.” When asked by the trial court to respond definitively as to whether he was able to find a copy of the notice of deposition and certificate of service in his office, Mr. Obioha testified that, “[w]e didn’t really look all over the place for it.”

Mr. Obioha further testified that he signed the notice of deposition and the certificate of service on November 28, 2011, with his signature ’ stamp, and that’ the notice of deposition was mailed to Dr. Ogbuokiri and to Digital Cable’s agent for service of process, “CT Corporation,” on that same date. When asked on cross-examination about the mailing of the notice of deposition, Mr. Obioha testified that he remembered personally going to the post office on November 28, 2011 and mailing the notice of deposition to both Dr. Og-buokiri and to Digital Cable’s agent for service of process, “CT Corporation.” Mr. Obioha admitted that the deposition of Dr. Ogbuokiri was-never taken in this case.

At the conclusion of the .hearing, the trial court admitted the notice of deposition into evidence, but denied Plaintiffs motion to vacate the ex parte order of dismissal, finding that Plaintiff had failed to carry his burden under Article 561. On March 18,- '2015, the trial court signed a judgment denying Plaintiffs motion to vacate.' On that same date, the trial court also issued separate reasons for judgment, wherein it found that without the certificate of service having' been “entered and authenticated”' by Plaintiff at the March 2, 2015 hearing, as set forth by this Court’s prior writ disposition, it had no choice but to uphold its prior order of dismissal for abandonment and denied Plaintiffs motion to vacate. Plaintiffs appeal now follows.

LAW AND DISCUSSION

On appeal, Plaintiff contends that the trial court erred in denying his motion to vacate the ex parte order of dismissal for abandonment. Specifically, Plaintiff claims that the trial court erred in finding that he failed to enter and authenticate the November 28, 2011 certificate of service at the March 2, 2015 hearing. As a result, Plaintiff contends that the trial coürt erred in dismissing his case as abandoned.

| fiThe controlling statutory provision in this case is La. C.C.P. art. 561. Article 561 provides that an action 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. Abandonment -is self-executing; it occurs [844]*844automatically upon the passing of. three years without a step being taken by either party, and it is effective without court order. Giovingo v. Dunn, 11-781 (La. App. 5 Cir. 3/13/12), 90 So.3d 1098, 1101, writ denied, 12-0831 (La.5/25/12), 90 So.Sd 418. Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit. Clark v.

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179 So. 3d 840, 15 La.App. 5 Cir. 345, 2015 La. App. LEXIS 2356, 2015 WL 7423211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-digital-cable-communications-north-lactapp-2015.