Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Giglio v. State, Department of Child and Family Services

Court of Appeals of Louisiana, Third Circuit

September 20, 2017

BARRY GIGLIO AND MARLA GIGLIO
v.
STATE OF LOUISIANA, DEPARTMENT OF CHILD AND FAMILY SERVICES, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, MINDY VENABLE, DWAYNE VENABLE, AND PAM MCGEE

         ON SUPERVISORY WRITS FROM THE 27TH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 12-C-2445 HONORABLE GERARD CASWELL, DISTRICT JUDGE, MOTIONS DENIED. WRIT GRANTED AND MADE PEREMPTORY.

          Gregory K. Moroux, Sr. Special Assistant Attorney General Counsel for Applicants: State of Louisiana, Department of Public Safety and Corrections

          Patrick M. Wartelle Special Assistant Attorney General Leake & Andersson LLP Counsel for Applicants: Dwayne and Mindy Venable

          Barry Giglio In Proper Person

          Marla Giglio In Proper Person

          Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Shannon J. Gremillion, Judges.

          ELIZABETH A. PICKETT JUDGE

         The defendants-relators, State of Louisiana, Department of Public Safety and Corrections (DPSC), and Mindy and Dwayne Venable (the Venables), seek supervisory writ from the judgment of the trial court, which denied their motions to dismiss for abandonment.

         STATEMENT OF THE CASE

         On May 17, 2013, the plaintiffs, Barry and Marla Giglio, filed suit against DPSC and the Venables for damages plaintiffs allegedly sustained as a result of their wrongful arrest and investigation for child molestation arising out of the defendants' "malicious, reckless, and false accusations." DPSC and the Venables filed their motions for dismissal based on abandonment pursuant to La.Code Civ.P. art. 561 "after the lapse of three years with no activity to advance the case toward judgment since October 31, 2013, when a Protective Order was filed in the record." Reviewing the record, the trial court found a letter from the Giglios' counsel to the clerk of court requesting the issuance of a subpoena duces tecum to the Evangeline Parish Sheriff for records of the plaintiffs' arrests, stamped with a clerk's filing date of July 22, 2016. The trial court then ordered the parties to appear for a hearing to determine whether the letter would interrupt the running of abandonment. During the hearing, it was learned that the subpoena was issued, but the trial court found it was "safe to assume" that DPSC and the Venables were not served with notice of the subpoena. In fact, the defendants' counsel did not even know plaintiffs' counsel had enrolled or requested the subpoena until the trial court's order to appear prompted an investigation of the physical record. While the defendants' counsel argued the subpoena was formal discovery and had to be served on opposing counsel to interrupt the tolling of the abandonment period under La.Code Civ.P. art. 561(B), plaintiffs' counsel argued the subpoena issued to a third party was not discovery and constituted a step in furtherance of the litigation. After hearing arguments from both sides, the trial court ruled from the bench:

Here's my dilemma, there was a request, there was a[n] actual issuance of the subpoena by this clerk's office, all of which was in the record. I am perplexed as to whether that is sufficient to interrupt.. . I am somewhat concerned that, at the time of the filing of the Motion for Abandonment, the record did contain both a request for a subpoena, as well as an actual issuance of the subpoena by this clerk's office. I am also convinced that defense counsel did not receive a copy of that. Whether one was sent or not, I don't have proof of, but I do have that they tell me they didn't receive it. I believe that they didn't receive it. However, because I think it's a question of novelty for me, and it's a close question, as I said in the beginning, I don't grant an abandonment if I have any doubt whatsoever. Because I do have doubt, I'm going to deny the abandonment, Request for Abandonment.

         The trial court stated for the record that its "ruling is based upon the assumption that had [the defendants' counsel] testified, that they would have testified that they never received a copy of the subpoena request by Mr. Richard." DPSC and the Venables now seek review of the trial court's ruling.[1]

         DISCUSSION

         "The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs." (Citation omitted.) "A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court." Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.