FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-00103,
DIVISION "F" Honorable Christopher J. Bruno, Judge
Lizette Radovic MILLER-RADOVIC, LLC COUNSEL FOR
S. York STONE PIGMAN WALTHER WITTMANN L.L.C. COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Tiffany G. Chase
A. Lombard Judge.
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.
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.
and Procedural History
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
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.
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,
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.
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.
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
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.