APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-03501, DIVISION " L-6" . Honorable Kern A. Reese, Judge.
Alistair A. Adkinson, A. A. Adkinson, Attorney, LLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT, KERRY JACKSON.
John E. Galloway, Andrea L. Albert, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, Mandeville, LA, COUNSEL FOR DEFENDANT/APPELLEE, FEDEX FREIGHT, INC.
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet).
Terri F. Love, J.
[2014-1153 La.App. 4 Cir. 1] This appeal arises from the dismissal of the plaintiff's lawsuit based on an unopposed motion for summary judgment. The trial court permitted counsel for plaintiff to withdraw his representation approximately one month prior to the hearing on defendant's motion for summary judgment. The plaintiff was not present at the hearing and did not have representation present either. As a result, the trial court granted the defendant's motion for summary judgment and dismissed the plantiff's
lawsuit with prejudice. We find that the plaintiff was denied due process because the record does not contain adequate verification that he received proper notice of the hearing on the motion for summary judgment. Accordingly, we reverse and remand for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Kerry Jackson was walking along St. Louis Street when an 18-wheeler truck for FedEx Freight, Inc. (" FedEx" ) allegedly struck a tree causing branches to fall on him. Mr. Jackson filed a police report, which included the number of the FedEx truck: 21548. Mr. Jackson then filed a Petition for Damages against FedEx alleging " gross and wanton negligence."
Mr. Jackson's attorney from May 25, 2011, to October 29, 2013, filed a [2014-1153 La.App. 4 Cir. 2] Petition for Intervention seeking attorney's fees, expenses, and costs. The trial court granted the intervention. Subsequently, Randall C. Joy and John B. Fox enrolled as counsel of record on December 26, 2013. On February 3, 2014, FedEx then filed a Motion for Summary Judgment seeking dismissal based on the fact that the FedEx truck Mr. Jackson identified was out-of-state on the day of the incident. The hearing was set for March 14, 2014, and was later rescheduled to May 23, 2014. On April 23, 2014, Mr. Joy and Mr. Fox filed a Motion to Withdraw as Counsel, which the trial court granted. The Motion to Withdraw stated that Mr. Jackson was notified of the withdrawal via certified mail. However, there is no return receipt in the record or a copy of the letter to Mr. Jackson. Approximately one month after the withdrawal, the trial court held a hearing on FedEx's Motion for Summary Judgment. Neither Mr. Jackson nor counsel for Mr. Jackson was present. The trial court granted the Motion for Summary Judgment and dismissed Mr. Jackson's claims with prejudice. Mr. Jackson's devolutive appeal followed.
Mr. Jackson contends that the trial court erred in granting summary judgment and dismissing his claims " without ensuring that" he " received proper notice of the hearing" and that the dismissal of his claims without proper notice was a deprivation of his Constitutional right to procedural due process.
Mr. Jackson asserts that he was deprived of due process because his claims were dismissed without receiving proper notice of the ...