FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA,
NO. 46564 HONORABLE JOHN C. REEVES, DISTRICT JUDGE.
Herron, Audubon Park Avenue Geismar, COUNSEL FOR
PLAINTIFF/APPELLANT: Kevin Barber
D. Jordan Jordan Law Group, LLC, COUNSEL FOR
PLAINTIFF/APPELLANT: Kevin Barber
Schroeder Craig E. Frosch Ronald S. Bryant, Usry, Weeks &
Matthews, APL, COUNSEL FOR DEFENDANT/APPELLEE: Randy Maxwell,
composed of Shannon J. Gremillion, John E. Conery, and David
E. Chatelain, Judges.
E. CHATELAIN [*] JUDGE.
plaintiff, Kevin Barber (Barber), appeals the trial
court's judgment denying his Motion for Reconsideration
of Dismissal for Abandonment. For the following reasons, we
affirm the decision of the trial court.
23, 2010, Barber was the passenger in a vehicle which was
involved in a high-speed chase. The vehicle was driven by
Derrick Jefferson (Jefferson) and owned by Ed Woods
(Woods). Barber alleges that the chase began when a
Concordia Parish Sheriff's Office (CPSO) vehicle driven
by Officer Dennis Mulvihill (Mulvihill), "for no
apparent reason, " began pursuing the vehicle in which
he was a passenger. According to Barber, Jefferson attempted
to elude Mulvihill by speeding and driving "in a wild,
erratic and unsafe manner." Barber claimed that he
pleaded with Jefferson to let him out of the vehicle. The
"chase ended with Jefferson violently crashing the
vehicle, causing Barber to be ejected from the vehicle with
22, 2011, Barber filed a Petition for Damages naming as
defendants: Jefferson; Woods; Mulvihill; CPSO Sheriff Randy
Maxwell (Sheriff Maxwell); Safeway Insurance Company
(Safeway), Woods's automobile liability insurer; and XYZ
Insurance Company (XYZ), CPSO's liability insurer.
Although Barber's petition requested service of the
petition and citation on the defendants,  service was not
attempted on any of the defendants at that time. On December
21, 2012, Barber's counsel again requested that service
be made on the defendants. Service of process on Mulvihill was
attempted on that same day at the CPSO but was unsuccessful
because he was "[n]o longer employed" there. On
January 2, 2013, service was attempted on Sheriff Maxwell at
the CPSO, but the petition and citation were actually served
on Sheriff Kenneth Hedrick (Sheriff Hedrick) as he was the
current CPSO Sheriff. Jefferson was served on December 26, 2012;
Safeway and Woods were served the next day. There is no proof
of service for XYZ in the record.
January 15, 2013, counsel for Sheriff Maxwell filed an
Exception of Insufficiency of Service of Process, asserting
that service on Sheriff Hedrick was invalid,  and Sheriff
Maxwell would need to "be served via either personal or
domiciliary service." Counsel then requested that the
service on Sheriff Maxwell "be declared invalid and
stricken from the record." A Rule to Show Cause was then
scheduled for February 11, 2013, on the exception.
January 28, 2013, Sheriff Maxwell filed a Motion to Continue
Hearing on the rule to show cause, which the trial court
signed on January 31, 2013, continuing it until February 25,
2013. Barber asserts that both parties discussed the
insufficiency of the service of process and concluded that it
could be cured by amending his petition to substitute Sheriff
Hedrick for Sheriff Maxwell. Both parties assert that they
then requested the February 25, 2013, hearing be continued
without date, which the trial court did.
March 2, 2016, Sheriff Maxwell filed an Ex Parte Motion to
Dismiss Suit on Grounds of Abandonment, alleging in the
codally required affidavit that the last step in the
prosecution in this case occurred on January 28, 2013;
therefore, under La.Code Civ.P. art. 561, the suit was
abandoned. On March 14, 2016, the trial court signed the
order granting Sheriff Maxwell's motion to dismiss.
Barber's counsel was served with the order granting the
motion to dismiss on March 28, 2016.
April 20, 2016, Barber filed a Motion for Reconsideration of
Dismissal for Abandonment. After Sheriff Maxwell filed an
opposition to Barber's motion to reconsider and after
various hearing delays, Barber's motion to reconsider was
heard before the trial court; only Sheriff Maxwell's
counsel was present in court that day. After confirming
service of the reset hearing on Barber's motion to
reconsider, the trial court signed the judgment, dismissing
Barber's motion to reconsider on July 11, 2016. It is
from this judgment that Barber timely appeals.
appeal, Barber raises two assignments of error: (1) the trial
court erred when it granted Sheriff Maxwell's Motion to
Dismiss on Grounds of Abandonment because his Exception of
Insufficiency of Service of Process was a mere technical form
of pleading that violated the language and spirit of La.Code
Civ.P. art. 5051, and Louisiana jurisprudence on La.Code
Civ.P. art. 561 disfavoring dismissal based on mere
technicalities; and (2) the trial court erred when it granted
Sheriff Maxwell's Motion to Dismiss on Grounds of
Abandonment, because the continuance of the February 25, 2013
Rule to Show Cause hearing without date was based on an
understanding between counsel for both parties that Sheriff
Maxwell's Exception of Insufficiency of Service of
Process would be made moot by ...