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Rixner v. Planned Parenthood Gulf Coast, Inc.

Court of Appeals of Louisiana, Fourth Circuit

April 24, 2019

BRITTNEY RIXNER
v.
PLANNED PARENTHOOD GULF COAST, INC., ABC INSURANCE COMPANY, CONSTANCE PFINGSTAG, MINDY JORDAN, JACKELIN LOPEZ

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-00103, DIVISION "F" Honorable Christopher J. Bruno, Judge

          Lizette Radovic MILLER-RADOVIC, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Bryant S. York STONE PIGMAN WALTHER WITTMANN L.L.C. COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Tiffany G. Chase

          Edwin A. Lombard Judge.

         The Appellant, Brittney Rixner, seeks review of the July 16, 2018 judgment of the district court denying her Motion to Set Aside the Order of Dismissal in favor of the Appellees, Planned Parenthood Gulf Coast, Inc. and Constance Pfingstag. Additionally, Ms. Rixner seeks review of a ruling made by the district court at the June 24, 2018 hearing on the motion at issue, finding that service of the Appellees' Ex Parte Motion to Confirm Abandonment and to Dismiss Action was not required.

         After review of the record in light of the applicable law and arguments of the parties, we reverse the July 16, 2018 judgment of the district court denying Ms. Rixner's motion, finding that judgment to be legally incorrect. Moreover, we affirm the district court's June 24, 2018 ruling as to the issue of service. Lastly, we decline to award Ms. Rixner's request for attorney's fees, court costs and other costs on appeal and related to her Motion to Set Aside the Order of Dismissal in the district court.

         Facts and Procedural History

         This appeal involves a dispute over a medical malpractice suit being deemed abandoned. In January 2015, Ms. Rixner filed a suit against Planned Parenthood Gulf Coast, Inc. and its employees, Constance Pfingstag, Mindy Jordan and Jackelin Lopez, raising claims for medical malpractice, breach of contract and personal injuries arising from the placement of a Mirena IUD and treatment she received related to that procedure. Ms. Rixner avers that the defendants are solidarily liable.

         Ms. Rixner requested service on all the defendants on April 1, 2015; however, service was only made on Planned Parenthood and Ms. Pfingstag, who filed answers and affirmative defenses, respectively. During the proceedings, Ms. Rixner avers, Planned Parenthood opened a new location in New Orleans. Counsel for Ms. Rixner later mailed correspondence to the Clerk of Court, dated December 20, 2016, requesting the reissuance of service of the petition on Mses. Jordan and Lopez at the new location. That letter became a part of the record. Nevertheless, the Orleans Parish Sheriff was unable to serve Mses. Jordan and Lopez.

         On May 1, 2018, Planned Parenthood and Ms. Pfingstag (hereinafter "the Appellees") filed an Ex Parte Motion to Confirm Abandonment and to Dismiss Action Pursuant to Louisiana Civil Code Article 561 ("motion to confirm abandonment"), asserting that no steps had been taken in the prosecution or defense of the action for three years, specifically since April 29, 2015, when Planned Parenthood filed its Answer and Affirmative Defense. The district court granted the motion to confirm abandonment on the same day. The order was subsequently served on Ms. Rixner on May 4, 2018.

         Ms. Rixner later filed an Ex Parte Motion to Set Aside the Order of Dismissal ("motion to set aside dismissal"). Following a hearing on June 29, 2018, the district court denied the motion to set aside dismissal, thereby upholding its May 1, 2018 order of dismissal. This timely appeal followed.

         Assignments of Error

         The crux of Ms. Rixner's appeal is that the district court erred in granting the Appellees' motion to confirm abandonment and erred in denying her motion to set aside dismissal. We note, however, that Ms. Rixner's motion for devolutive appeal omits mention of the May 1, 2018 order of the district court granting motion to confirm abandonment. Therefore, because her assignment of error related to the May 1, 2018 order of dismissal is not properly before this Court, we pretermit discussion of that assignment of error.

         Finding that the district court did err in denying Ms. Rixner's motion to set aside dismissal, we shall explain below why the denial of Ms. Rixner's motion was legally incorrect under Bibeau v. Forest Manor Nursing Home, 05-0181 (La.App. 4 Cir. 8/18/05), 917 So.2d 1123, and Louisiana jurisprudence.

         Additionally, Ms. Rixner assigns as error the district court's ruling that the Appellees were not required to send her a service copy of their ex parte motion to confirm abandonment; and seeks an award of attorney's fees, court costs and other costs on appeal and for the legal work associated with her motion to set aside dismissal. We find these assignments of error to be without merit for the reasons discussed below.

         A ...


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