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Sutton v. Adams

Court of Appeals of Louisiana, Fourth Circuit

May 29, 2019

RICK M. SUTTON
v.
JACK ADAMS

          APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-04829, DIVISION "M" Honorable Paulette R. Irons, Judge

          Kim M. Boyle Brandon E. Davis Phelps Dunbar LLP Canal Place COUNSEL FOR RELATOR

          Robert G. Harvey, Sr. Attorney at Law Donald C. Douglas, Jr. The Douglas Law Firm, LLC COUNSEL FOR RESPONDENT

          Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Tiffany G. Chase

          TIFFANY G. CHASE JUDGE

         Relator, Jack Adams, seeks review of the trial court's March 25, 2019 judgment denying his motion to dismiss on grounds of abandonment. After consideration of the record before this Court, and the applicable law, we grant the writ and reverse the judgment of the trial court denying Mr. Adams' motion to dismiss on grounds of abandonment.

         Relevant Facts and Procedural History

         On November 6, 2014, Respondent, Rick Sutton, filed a petition for damages against Mr. Adams alleging breach of contract. The breach of contract petition was allotted to Division "N" of Civil District Court for the Parish of Orleans, and assigned case number 2014-10709. Mr. Sutton subsequently filed a separate petition for damages against Mr. Adams alleging failure to pay wages. The wage petition was allotted to Division "B" of Civil District Court for the Parish of Orleans, and assigned case number 2015-3495. Mr. Adams filed a motion to transfer and consolidate on November 3, 2015, requesting case number 2015-3495 be transferred to Division "N" and consolidated with case number 2014-10709. By order dated November 4, 2015, case number 2015-3495 was transferred to Division "N" and consolidated with case number 2014-10709.

         On May 20, 2015, Mr. Sutton filed another petition for damages against Mr. Adams alleging defamation. The defamation petition was allotted to Division "M" of Civil District Court for the Parish of Orleans, and assigned case number 2015-4829. After answering the defamation petition, Mr. Adams filed a motion for summary judgment, in the defamation case, on November 3, 2015. Mr. Sutton filed an opposition to the motion for summary judgment on December 10, 2015.

         On January 15, 2016, Mr. Adams filed a motion for sanctions against Mr. Sutton. The motion for sanctions was filed in Division "N" under case number 2014-10709 c/w 2015-3495. Mr. Sutton filed an opposition to the latter motion on February 11, 2016. His opposition was filed in Division "M" under case number 2015-4829 and filed into the record of the defamation case. On January 21, 2019, Mr. Sutton filed a motion to set for trial on the merits in Division "M" under case number 2015-4829.[1]

         On February 4, 2019, Mr. Adams filed a motion to dismiss on grounds of abandonment in the Division "M" defamation case, under case number 2015-4829. Mr. Adams argued that the matter was abandoned pursuant to La. C.C.P. art. 561 because it had been more than three years since the last step was taken, by any party, in the prosecution or defense of the matter. Mr. Sutton filed an opposition to the motion dismiss on grounds of abandonment on March 6, 2019. Mr. Sutton maintained that the matter was not abandoned because it had been consolidated with case number 2014-10709. Mr. Adams filed a reply memorandum on March 12, 2019 asserting that case number 2015-4829 was never consolidated with case number 2014-10709 and that the opposition to the motion for sanctions, or the erroneous captioning of certain pleadings, did not count as steps in the prosecution or defense of the matter.

         A hearing on the motion to dismiss on grounds of abandonment was held on March 14, 2019. In open court, the trial court denied the motion to dismiss on grounds of abandonment. The trial court's ruling was reduced to writing by judgment dated March 28, 2019. This application for supervisory review followed.

         Discussion

         This Court is tasked with determining whether steps were taken in the prosecution or defense of case number 2015-4829, within a three year period. The question of whether a step in the prosecution or defense of a case has occurred, within a three year period, is a question of fact which is subject to a manifest error analysis. R.L. Lucien Tile Co. v. Solid Rock Co., 2016-0690, p. ...


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