Maradiaga v. Doe

179 So. 3d 954, 2015 WL 7568588
CourtLouisiana Court of Appeal
DecidedNovember 25, 2015
DocketNo. 2015-CA-0450
StatusPublished
Cited by5 cases

This text of 179 So. 3d 954 (Maradiaga v. Doe) 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
Maradiaga v. Doe, 179 So. 3d 954, 2015 WL 7568588 (La. Ct. App. 2015).

Opinion

DANIEL L. DYSART, Judge.

hJairo Maradiaga appeals a summary judgment granted in favor of Cornerstone National Insurance Company (“Cornerstone”) on May 25, 2011. For-the reasons that follow, we affirm.

Abandonment:

Cornerstone argues, in its brief before this Court, that Maradiaga’s appeal is abandoned as he obtained an order of appeal on June 28, 2011, but did not file his appellant brief in this Court until June 8, 2015. Thus we should dismiss the appeal as abandoned pursuant to La.Code Civ. Proc. art. 561 and Local Rule 20.

This Court ordered Maradiaga to Show cause why his appeal should' not be dismissed as abandoned, to-which he responded that he had taken steps in the prosecution of the case within three years of the signing of the order of appeal. Specifically, he attached documents that indicate he received two Notices of Estimated Costs of Appeal1, and two checks written to the clerk of court payment thereof. One of the notices, dated July 1, 2011, indicates that Maradiaga had until July 21, 2011 to pay the costs of $2,192.60. Maradiaga attaches a cheek dated April 15, 2014 and a cover letter of the same date to the clerk [956]*956of court.- The second notice, dated September 11, 2014, indicates that payment of the costs of $843.80 was due on February 1, 2012.2 Maradiaga attaches a check and cover letter dated September 11, 2014 for the costs.

Louisiana Code of Civil Procedure art. 561 provides in part:

C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

Rule 1 of the Local Rules of the Court of Appeal, Fourth Circuit, provides in part that if the record is not filed in this Court on or before the return date or any extension thereof, a notice shall be mailed by the clerk to the appellant. In this case, as discussed above, the trial court did not indicate any return date on the order of appeal. Local Rule 20 providés in part that when no activity occurs in an appeal for three years, the appeal shall be dismissed as abandoned.

Cornerstone alleges that because no activity occurred in the case, whether here or in the trial court, for, more than three years from the date the order of appeal was signed, the appeal should be considered abandoned.

Louisiana Code of Civil Procedure art. 2126 provides in pertinent part:

A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal. The clerk shall send notices of the estimated costs....
B. Within twenty days of the mailing of the notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period....
* * *
E. If the appellant fails to pay the estimated costs, ... within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall: (1) Enter a formal order of dismissal on the grounds of abandonment....
* * *
F. If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal, (emphasis added).

In this case, Cornerstone could have moved the trial court to enter a formal order of dismissal on the grounds that Maradiaga had not paid the costs, and after a hearing, the trial court could have dismissed the appeal pursuant to La.Code Civ. Proc. art. 2126 E(1). Cornerstone took no such action.

Therefore, when Maradiaga paid the costs due, although untimely, Cornerstone could no longer seek a dismissal for abandonment. Accordingly, we find the appeal is not abandoned. See Marcum v. Inter-Ocean Ins. Co., 402 So.2d 222 (La.App. 1st Cir.1981).

Motion for Summary Judgment:.

Maradiaga'was involved in a multi-car accident on or about February 25, 2009. At the time of the accident, Maradiaga's vehicle was covered by a policy of insurance issued by Cornerstone. Maradiaga filed a claim for coverage pursuant to the uninsured/underinsured (“UM”) provision [957]*957of his policy, which was denied by Cornerstone. Mai'adiaga- subsequently filed suit against the other drivers involved in the accident, their insurers, and Cornerstone. Cornerstone moved for summary | judgment on the basis that Maradiaga had waived UM coverage. The trial court granted summary judgment.

Discussion:

A motion for summary .judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as. a matter of law.” La.Code Civ. Proc. art. 980 B(2). The movant bears the. burden of proof. La.Code Civ. Proc. art. 966 C. “However, if the movant 'Will not bear the burden of proof at trial .,the movant’s burden” is “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La.Code Civ. Proe. art. 986 0(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La.Code Civ. Proc. art, 960 C(2).

To determine whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria employed by the trial court. Quantum Resources Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (La.3/19/13), 112 So.3d 209, 214; Garrison v. Old Man River Esplanade, 13-0869, p. 3 (La.App. 4 Cir. 12/18/13), 133 So.3d 699, 701; La.Code Civ. Proc. art. 966.

Cornerstone submitted with its Motion for Summary Judgment the policy of insurance issued to Maradiaga, and a completed UM Bodily Injury Rejection Form, which was signed electronically by Maradi-aga, and indicated that, he rejected UM coverage. Also attached was a Digital Signature Acceptance Confirmation signed and initialed by Maradiaga. The pertinent language of the confirmation reads as follows:

By clicking the box, I agree the signature and initials 1 have selected above will ,be the electronic representation of my signature for use on the following insurance documents which include legally binding contracts, I further understand that signing documents using this electronic signature will have the same legally binding effect as signing my signature using pen and paper.

The documents that follow the’ confirmation are the policy of insurance including the UM Bodily Injury Rejection Form.

Maradiaga argues that the copy of the form attached to the Motion for Summary Judgment does not qualify as a valid rejection. He contends’ that because his insurance agent completed the form for him on the computer, it is insufficient to prove his intent to reject coverage.

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179 So. 3d 954, 2015 WL 7568588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maradiaga-v-doe-lactapp-2015.