Appealed from the Nineteenth Judicial District Court In and
for the Parish of East Baton Rouge State of Louisiana Suit
Number C615674 Honorable Wilson E. Fields, Presiding
Wells Baton Rouge, LA In Proper Person
E. Downing, Jr. Baton Rouge, LA Counsel for
Defendant/Appellee Geneva Banks
Landry Attorney General David G. Sanders Assistant Attorney
General Baton Rouge, LA Counsel for Defendant/Appellee Judge
BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
Kelvin Wells, appeals from a trial court judgment granting an
ex parte motion to dismiss for abandonment filed by
defendant, Judge Charlene Day, and dismissing plaintiffs
claims against her without prejudice. For the reasons that
follow, we affirm.
AND PROCEDURAL HISTORY
September 25, 2012, Wells filed a Petition for Damages/Parent
Alienation, naming Geneva Banks, A.J. Kling, and the Family
Court as defendants and seeking damages for parental
alienation and violation of his due process and equal
protection rights. Wells thereafter amended his petition to
name Judge Laura Davis of the Family Court as a defendant for
allegedly proceeding in excess of her jurisdiction. Wells
subsequently filed a Corrected Supplemented Petition for
Damages naming Charlene Day as defendant. Judge Charlene Day
responded by filing an exception raising the objection of no
cause of action on August 29, 2014, and the matter was set
for hearing on October 27, 2014.
Wells filed an opposition to Judge Day's exception and
also filed a Motion to Recuse the trial court judge assigned
to hear the matter. When Judge Day's exception came on
for hearing on October 27, 2014, the trial court ordered that
the matter be allotted to another division of the court for
the Motion to Recuse to be heard. A hearing on Wells'
Motion to Recuse was set for February 2, 2015. However, the
matter was passed without date when none of the parties
appeared for the hearing. The trial court also passed without
date a February 9, 2015 hearing on a motion for default
judgment filed by Wells against Banks until such time as the
Motion to Recuse was heard.
March 21, 2018, Judge Day filed an Ex Parte Motion to Dismiss
for Abandonment, asserting that since February 9, 2015, three
years had passed without further prosecution or defense of
this case and as such, movant was entitled to an ex parte
order of dismissal without prejudice for abandonment pursuant
to La. C.C.P. art. 561. The trial court subsequently signed
an order granting Judge Day's motion and dismissing
Wells1 claims against her without prejudice. Wells now
appeals from the trial court's judgment.
Code of Civil Procedure article 561(A)(1) provides that an
action is abandoned when the parties fail to take any step in
its prosecution or defense in the trial court for a period of
three years. In this context, a step is defined as taking
formal action before the court which is intended to hasten
the suit toward judgment, or the taking of a deposition with
or without formal notice. Hutchison v. Seariver Maritime,
Inc., 09-0410, p. 5 (La.App. 1st Cir. 9/11/09), 22 So.3d
989, 993, writ denied. 09-2216 (La. 12/18/09), 23
So.3d 946. Whether or not a step in the prosecution of a case
has been taken in the trial court for a period of three years
is a question of fact subject to manifest error analysis on
appeal. Brown v. Kidney and Hypertension Associates,
L.L.P.. 08-0919, p. 7 (La.App. 1st Cir. 1/12/09), 5
So.3d 258, 264. However, whether a particular act, if proven,
precludes abandonment is a question of law that an appellate
court reviews simply by determining whether the trial
court's interpretative decision is correct.
Brown, 08-0919 at p. 7, 5 So.3d at 264.
our review of the record, it is clear that no action has been
taken in this matter by any party since the hearing on
Wells's motion for default judgment was passed without
date on February 9, 2015. Accordingly, we find no
error in the trial court's order granting the Ex Parte
Motion to Dismiss for ...