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Barber v. Jefferson

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

KEVIN BARBER
v.
DERICK JEFFERSON, ET AL.

         APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 46564 HONORABLE JOHN C. REEVES, DISTRICT JUDGE.

          Elton Herron, Audubon Park Avenue Geismar, COUNSEL FOR PLAINTIFF/APPELLANT: Kevin Barber

          Edmond D. Jordan Jordan Law Group, LLC, COUNSEL FOR PLAINTIFF/APPELLANT: Kevin Barber

          Fred Schroeder Craig E. Frosch Ronald S. Bryant, Usry, Weeks & Matthews, APL, COUNSEL FOR DEFENDANT/APPELLEE: Randy Maxwell, Sheriff.

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.

          DAVID E. CHATELAIN [*] JUDGE.

         The 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.

         PROCEDURAL HISTORY

         On July 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).[1] 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 severe injuries."

         On July 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, [2] 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.[3] 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.[4] 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.

         On January 15, 2013, counsel for Sheriff Maxwell filed an Exception of Insufficiency of Service of Process, asserting that service on Sheriff Hedrick was invalid, [5] 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.

         On 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.[6] Both parties assert that they then requested the February 25, 2013, hearing be continued without date, which the trial court did.[7]

         On 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.

         On April 20, 2016, Barber filed a Motion for Reconsideration of Dismissal for Abandonment.[8] 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.[9]

         On 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 ...


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