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Juengain v. Tervalon

Court of Appeals of Louisiana, Fourth Circuit

July 26, 2017

GARY JUENGAIN
v.
HARRY TERVALON, ET AL.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2008-08854, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Gary Juengain, PRO SE PLAINTIFF

          Ralph R. Alexis, III PORTEOUS HAINKEL & JOHNSON, LLP COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown

          Rosemary Ledet, Judge

          This is a legal malpractice case. The plaintiff, Gary Juengain, filed this action against the following three defendants: Harry Tervalon, Bryant Woods, and the Orleans Indigent Defender Program (the "OIDP")[1] (collectively the "Defendants"). The trial court, sua sponte, dismissed the suit as abandoned pursuant to La. C.C.P. art. 561. From that ruling, Mr. Juengain appeals. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On August 25, 2008, Mr. Juengain-now incarcerated in Louisiana State Penitentiary in Angola, Louisiana-filed a petition for damages, in proper person, alleging legal malpractice by the attorney who represented him in the criminal case that resulted in his present incarceration.[2] He averred that he was arrested on June 5, 2008, for possession of cocaine, a violation of La. R.S. 40:967 C(2). He further averred that he was framed by the New Orleans Police Department ("NOPD") because of his earlier not guilty verdict. The gist of his malpractice claim is that his former attorney failed to visit him in jail, failed to help him prepare his case, and scheduled a lunacy hearing instead of pursing the information he provided to them; he averred that his attorney's actions were "worse than being slapped in the face." Along with the petition, Mr. Juengain filed an In Forma Pauperis Application. On November 24, 2008, the Defendants were served with the petition.

         On November 26, 2008, Mr. Juengain filed a motion for default judgment. The record does not reveal that Mr. Juengain ever confirmed the default judgment motion or that the trial court ever ruled on it. On December 16, 2008, Mr. Juengain sent a letter to the clerk of the Civil District Court ("CDC") regarding his In Forma Pauperis Application, seeking to determine if it had been granted.

         On December 19, 2008, the Defendants filed a motion for extension of time to file responsive pleadings, which was granted. On January 22, 2009, the Defendants filed a second motion for extension of time, which was granted.

         On February 3, 2009, Mr. Juengain filed a request for the issuance of a Subpoena Duces Tecum; the trial court denied the request because it was not in the proper form. On that same date, Mr. Juengain filed a request for appointment of counsel; the trial court denied the request, citing the lack of authority for appointment of counsel in a civil case. On February 6, 2009, the Defendants filed their answer and various exceptions-exceptions of no right of action; alternatively, the claim is barred by immunity, no cause of action, res judicata; alternatively, lis pendens, prescription; alternatively, laches and mootness. On February 13, 2009, the CDC Clerk's office sent a letter to Mr. Juengain providing him the proper form to use to request a Subpoena Duces Tecum.

         On March 3, 2009, Mr. Juengain filed multiple Subpoena Duces Tecum Requests (the "Subpoena Requests"). On May 21, 2009, Mr. Juengain filed a request for copies of the Defendants' answer and the original petition. On June 3, 2009, the CDC Clerk's office informed Mr. Juengain that before his request for copies could be processed, he was required to provide a statement of his income. On July 7, 2009, Mr. Juengain filed a statement of his income. On March 6, 2011, Mr. Juengain filed an "Inmate's Request for Legal/Indigent Mail."

         On September 30, 2014, Mr. Juengain filed a Motion to Amend the Petition (the "First Motion to Amend"). On October 7, 2014, the trial court ordered that Mr. Juengain be allowed to amend his pleadings and that he provide service instructions within thirty days. On January 9, 2015, the Defendants were served with the supplemental and amended petition.

         On October 27, 2016, Mr. Juengain filed a Second Motion to Amend the Petition (the "Second Motion to Amend"). On November 2, 2016, the trial judge denied the Second Motion to Amend; and, as noted at the outset of this opinion, the trial court, sua sponte, dismissed the suit as abandoned pursuant to La. C.C.P. art. 561. The trial court's order stated as follows:

All of the requests by plaintiff Gary Juengain are hereby denied. This case Juengain versus Tervalon CDC 2008-8854 has been abandoned by operation of law. A subpoena request was filed on March 3, 2009. The next step was a motion to Amend the Petition on Sept[ember] 30, 2014 [the First Motion to Amend]. As more than three years passed, the case has been abandoned. This Court dismisses plaintiff Gary Juengain's claim with prejudice at his costs.

         This appeal followed.[3]

         DISCUSSION

         The sole issue presented by this appeal is whether the trial court erred in dismissing Mr. Juengain's malpractice suit as abandoned pursuant to La. C.C.P. art. 561. Whether a suit has been abandoned is a question of law. Olavarrieta v. St. Pierre, 04-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568.[4] In reviewing a question of law, an appellate court applies a de novo standard of review. Delacruz v. Anadarko Petroleum Corp., 14-0433, p. 8, n. 9 (La.App. 4 Cir. 12/3/14), 157 So.3d 790, 795 (citing Liner v. Ippolito, 08-0208, p. 3 (La.App. 4 Cir. 8/20/08), 991 So.2d 1150, 1152) (noting that "[t]he issue of abandonment is a question of law subject to de novo review on appeal."). The question the appellate court must decide is simply whether the lower court's interpretive decision is legally correct. Faust v. Greater Lakeside Corporation, 03-0808, p. 3 (La.App. 4 Cir. 11/26/03), 861 So.2d 716, 718; see also Heirs of Simoneaux v. B-P Amoco, 13-0760, p. 3 (La.App. 4 Cir. 2/5/14), 131 So.3d 1128, 1130 (citing Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721).

         An action-other than a succession proceeding-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." La. C.C.P. art. 561 A(1). For purposes of abandonment, "[a] party takes a 'step' in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice." James v. Formosa Plastics Corp. of Louisiana, 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335, 338 (citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 and collecting cases). Not all filings in the court record are considered "steps" for purposes of interrupting the abandonment period; for example, requests for notice; change of address notices; and motions to withdraw, enroll, or substitute counsel are not "steps." True Gospel of Jesus Christ Church Ministry v. Doucette, 08-0634, p. 5 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, 798.

         The Supreme Court, in Clark, construed La. C.C.P. art. 561 as imposing the following three requirements on a plaintiff to avoid abandonment:

First, plaintiffs must take some "step" towards prosecution of their lawsuit. In this context, a "step" is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Clark, 00-3010 at p. 6, 785 So.2d at 784 (internal footnotes omitted); see also Louisiana Dept. of Transportation and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-5 (La. 12/6/11), 79 So.3d 978, 981.

         Upon the passage of a three year interval during which neither party takes a "step" in the prosecution or defense of the action, abandonment takes place automatically. La. C.C.P. art. 561 A(1) and (3). "The article is operative, and the dismissal effective, as soon as this interval has expired. An actual judgment is not necessary to ratify or confirm the fact of abandonment." Clark v. S. Tire Serv., Inc., 00-1548, p. 2 (La.App. 5 Cir. 2/14/01), 782 So.2d 27, 28; see La. C.C.P. art. 561 A(3) (providing that "[t]his provision shall be operative without formal order."). Hence, "a defendant is not required to file a motion to dismiss a case as abandoned in order to make the plaintiffs abandonment of the case effective." 1 Judge Steven R. Plotkin and Mary Beth Akin, LOUISIANA PRACTICE SERIES: LOUISIANA CIVIL PROCEDURE, Article 561 (2016 ed.).

         The jurisprudence has outlined the following general principles on abandonment:

• The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle,436 So.2d 530, 532 (La. 1983). Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely ...

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