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
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
Giglio In Proper Person
Giglio In Proper Person
composed of Elizabeth A. Pickett, Billy H. Ezell, and Shannon
J. Gremillion, Judges.
ELIZABETH A. PICKETT JUDGE
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
OF THE CASE
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.
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.
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 ...