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Bridges v. Baton Rouge Police Department

Court of Appeals of Louisiana, First Circuit

May 17, 2018

JOE L. BRIDGES, III, JORDAN M. BRIDGES, AND BRANDEN J. HERRING
v.
BATON ROUGE POLICE DEPARTMENT, CITY OF BATON ROUGE; DONALD DEWAYNE WHITE, (IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE BATON ROUGE POLICE DEPARTMENT), KENNETH CLARK (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN OFFICER FOR THE BATON ROUGE POLICE DEPARTMENT), STEVEN WOODRING (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN OFFICER FOR THE BATON ROUGE POLICE DEPARTMENT), DUSTIN JOHNSON (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN OFFICER FOR THE BATON ROUGE POLICE DEPARTMENT), AND XYZ INSURANCE COMPANY

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number C614239 Honorable Timothy E. Kelley, Presiding

          Clarence Roby, Jr. New Orleans, LA Stephanie Bridges New Orleans, LA Counsel for Plaintiffs/Appellants Joe L. Bridges III, Jordan M. Bridges, and Branden J. Herring

          Harry Rosenberg New Orleans, LA A. Gregory Rome Special Assistant Parish Attorney Baton Rouge, LA Counsel for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge

          BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, CRAIN, AND CHUTZ, JJ.

          GUIDRY, J.

         Plaintiffs/Appellants, Joe Bridges III, Jordan M. Bridges, and Branden J. Herring, appeal from a February 22, 2017 judgment denying their motion to set aside/vacate the trial court's order dismissing plaintiffs' petition for damages and from the trial court's March 17, 2017 order denying their motion for new trial. For the reasons that follow, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         On July 20, 2012, plaintiffs filed a petition for damages arising out of a July 30, 2011 arrest. Plaintiffs' petition names as defendants: the Baton Rouge Police Department; the City of Baton Rouge; Donald Dewayne White, in his official capacity as Chief of Police of the Baton Rouge Police Department; Kenneth Clark, individually and in his official capacity as an officer for the Baton Rouge Police Department; Steven Woodring, individually and in his official capacity as an officer for the Baton Rouge Police Department; and Dustin Johnson, individually and in his official capacity as an officer for the Baton Rouge Police Department. James L. Hilburn, Senior Special Assistant Parish Attorney, subsequently filed an answer on behalf of the City of Baton Rouge, Chief White, Clark, Woodring, and Johnson.

         Thereafter, on May 14, 2014, Tedrick K. Knightshead, Special Assistant Parish Attorney, filed a motion to enroll as counsel of record, asking the court to remove Hilburn, since he was no longer an employee of the parish attorney's office. The trial court signed an order on May 21, 2014, removing Hilburn as counsel of record for defendants and entering Knightshead as counsel of record.

         On July 19, 2016, A. Gregory Rome, Special Assistant Parish Attorney, filed on behalf of the named defendants an exparte motion to dismiss plaintiffs' petition on grounds of abandonment, asserting that more than three years had elapsed since either party had taken an action toward the defense or prosecution of the matter. In connection with their motion, defendants submitted a three-year certificate from the Nineteenth Judicial District Clerk of Court, certifying that no pleadings had been filed by either party since the May 14, 2014 motion to enroll. In the accompanying memorandum, defendants asserted that the last action taken by either party was defendants' written discovery propounded on plaintiffs on October 2, 2012, to which plaintiffs had not responded. Defendants attached to the memorandum an affidavit from Rome stating that he personally examined the suit record and defendants' file and that no action toward either the defense or prosecution of the matter had been taken by either party nor had there been any formal discovery by any party for a period in excess of three years. The trial court subsequently signed an order on July 27, 2016, dismissing the plaintiffs' petition with prejudice, at plaintiffs' cost, pursuant to La. C.C.P. art. 561.

         Thereafter, on August 22, 2016, plaintiffs filed a motion to set aside/vacate the order dismissing plaintiffs' petition for damages (motion to set aside), asserting that on March 18, 2014, they submitted formal discovery to defendants, namely interrogatories and requests for production of documents. Plaintiffs asserted that discovery is a step in the prosecution, and therefore, plaintiffs did not fail to take a step in the prosecution for an uninterrupted period of three years and abandonment is inappropriate. Plaintiffs attached as exhibits to their motion: a cover letter from the office of plaintiffs' counsel, Clarence Roby, Jr., addressed to defendants' counsel, Hilburn, and dated March 18, 2014; interrogatories and requests for production directed to defendants Johnson and Woodring; and a certificate of service signed by Roby stating that the interrogatories and requests for production were mailed to counsel for all parties on March 18, 2014. Defendants did not file a response or opposition to plaintiffs' motion.

         The trial court held a hearing on plaintiffs' motion on February 6, 2017. At the hearing, defendants presented argument opposing plaintiffs' motion and introduced documentary evidence and the testimony of two witnesses. At the conclusion of the hearing, the trial court denied plaintiffs' motion to set aside, finding that plaintiffs had failed to present any evidence, either by way of affidavit or witness testimony, authenticating that the March 18, 2014 discovery was sent to the plaintiffs. The trial court subsequently signed a judgment on February 22, 2017, denying plaintiffs' motion and dismissing plaintiffs' petition for damages as abandoned.

         On March 15, 2017, plaintiffs filed a motion for new trial and/or reconsideration, asserting that a new trial should be granted based on peremptory and discretionary grounds. The trial court ...


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