NOT DESIGNATED FOR PUBLICATION

Transcription

1 NOT DESIGNATED FOR PUBLICATION OBIORA NWOKEDI VERSUS TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC., D/B/A REGIONAL TRANSIT AUTHORITY D/B/A REGIONAL TRANSIT AUTHORITY, INC., TRESTON BROWN, AND XYZ INSURANCE COMPANY NO CA-0150 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO , DIVISION N-8 Honorable Ethel Simms Julien, Judge Judge Max N. Tobias, Jr. (Court composed of Chief Judge Charles R. Jones, Judge Max N. Tobias, Jr., Judge Rosemary Ledet) Pius A. Obioha Alistair A. Adkinson Michal J. Harris PIUS A. OBIOHA & ASSOCIATES, LLC 1550 N. Broad Street New Orleans, LA Steven M. Jupiter N. Sundiata Haley Randy G. McKee HALEY & McKEE, L.L.C. 650 Poydras Street Suite 1400 New Orleans, LA COUNSEL FOR PLAINTIFF/APPELLANT COUNSEL FOR DEFENDANT/APPELLEE AFFIRMED

2 In this appeal, Obiora Nwokedi seeks review of the trial court judgment denying his motion to vacate an order granting the motion to dismiss his suit on grounds of abandonment. The motion was filed by the Transit Management of Southeast Louisiana, Inc., Regional Transit Authority, and Treston Brown. For the following reasons, we find the appeal untimely and must be dismissed. Mr. Nwokedi filed a petition for damages on 21 October 2005, seeking alleged damages for injuries sustained in a rear-end collision with the Transit Management of Southeast Louisiana, Inc., Regional Transit Authority, and Treston Brown (collectively, the defendants). On 15 November 2007, a motion and order to continue a hearing set for 30 November 2007 was filed into the record. An order was signed on 20 November 2007 continuing the hearing until 14 December The next document in date order in the record is an ex parte motion to withdraw as counsel of record for the defendants filed on 14 January 2011 and granted on 19 January Thereafter, Mr. Nwokedi filed a motion for a status conference for the purpose of selecting discovery deadlines on 1 June 2011; the motion requested service on Roy J. Rodney, Jr., alleged counsel for the defendants. An order issued 1

3 on 27 June 2011 for a status conference to be held on 12 July Apparently, a status conference was held and an order issued on 12 July 2011 setting cut off deadlines, but no trial date was set. Randy McKee appeared as counsel for the defendants, having previously enrolled as counsel on 20 July The defendants apparently filed a motion to dismiss on the grounds of abandonment, but the motion is not part of the record on appeal. Similarly, the order granting the dismissal for abandonment is not part of the record. However, appearing of record is Mr. Nwokedi s motion to vacate the order of dismissal and/or for reconsideration filed on 24 August In that motion Mr. Nwokedi stated that the motion to dismiss on grounds of abandonment was granted by the trial court on 20 July He acknowledged receiving service of the order granting the motion to dismiss on 25 July The sheriff s return of service states that counsel for Mr. Nwokedi received service on 25 July On 28 October 2011, the trial court held a hearing on the motion to vacate order and/or for reconsideration and denied it on 28 November Mr. Nwokedi filed a motion for appeal on 27 December Whether or not an action has been abandoned is a question of law. Meyers v. City of New Orleans, , p. 2 (La. App. 4 Cir. 5/17/06), 932 So.2d 719, 721. The procedure governing abandonment is set forth in La. C.C.P. art. 561, which states in pertinent part: A. (1) 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: (a) Which has been opened; 2

4 (b) In which an administrator or executor has been appointed; or (c) In which a testament has been probated. (3) 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. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article (4) 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. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D). (5) 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 may be taken only within sixty days of the date of the clerk's mailing of the order of denial. B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. [Emphasis supplied.] Accordingly, Mr. Nwodeki s motion was timely. Mr. Nwokedi argues that interrogatories and a request for production of documents were propounded on Roy J. Rodney, Jr., counsel for defendants. He avers that a step in the prosecution was taken between 15 November 2007 and 14 January 2011, the date that counsel for the defendants withdrew. Thus, he argues that the matter was not abandoned. Formal discovery served on all parties, whether or not filed of record, is deemed a step in the prosecution or defense of an action. La. C.C.P. art. 561 B. In 3

5 this case, Mr. Nwokedi alleged that interrogatories and a request for production were propounded on Roy J. Rodney, Jr., counsel for the defendants, on 13 October However, the record on appeal fails to disclose that Mr. Rodney was ever counsel of record for any defendant. Veronica E. Henry, of Wilkerson & Henry, L.L.C., enrolled as counsel of record for the defendants on 16 March Ms. Henry was allowed to withdraw as counsel of record for the defendants on 19 January Thus, we are not able confirm the representation of counsel: that discovery was served upon the defendants through their attorney of record. The burden was upon Mr. Nwodeki to show that timely propounding of discovery by him upon the defendants was made. He has failed to show same per the record on appeal. The trial court s decision granting the order of abandonment is therefore deemed correct. Accordingly, the judgment of the trial court is affirmed. AFFIRMED 4