SHARON FOWLER, INDIVIDUALLY AND SHARON FOWLER ON BEHALF OF, AND AS NATURAL MOTHER AND TUTRIX OF HER MINOR CHILD HANK FOWLER Plaintiff-Appellant
EDDIE RAY MCKEEVER AND ANPAC LOUISIANA INSURANCE COMPANY Defendants-Appellees
Appealed from the Fourth Judicial District Court for the
Parish of Ouachita, Louisiana Trial Court No. 2014-0371
Honorable Alvin R. Sharp, Judge
CHESTER A. BRADLEY, III Counsel for Appellant AND ASSOCIATES
By: Chester A. Bradley, III
OF ANTHONY J. BRUSCATO By: Anthony J. Bruscato
DAVENPORT, FILES & KELLY, L.L.P. Counsel for Appellees
By: Mike C. Sanders Justin A. Wooley Grant M. Tolbird
PITMAN, COX, and THOMPSON, JJ.
Sharon Fowler, has appealed from the trial court's
judgment denying her motion to vacate and set aside an order
of dismissal that the court granted based upon its finding
that Plaintiff's lawsuit was abandoned pursuant to La.
C.C.P. art. 561. For the reasons set forth below, we reverse
and remand for further proceedings.
February 5, 2014, Plaintiff, Sharon Fowler, filed suit,
individually and on behalf of her minor son Hank, against
Defendants, Eddie Ray McKeever and ANPAC Insurance Company,
seeking damages arising out of an automobile collision.
Plaintiff filed a motion of voluntary partial dismissal on
March 14, 2014, after settlement of Hank's claims was
reached by the parties, and an order of dismissal was signed
by the trial court on March 19, 2014, leaving Sharon Fowler
as the sole plaintiff.
filed an answer denying all of Plaintiff's allegations on
May 30, 2014. On May 24, 2014, and November 5, 2014,
Defendants propounded Interrogatories and Requests for
Production of Documents to Plaintiff, including a request
that she sign a Medicare/Medicaid release form authorizing
the release of records to defense counsel and/or
counsel's law firm. Plaintiff's responses were
delayed, and defense counsel filed a motion to compel on
January 21, 2015. At that point, Plaintiff provided her
responses to Defendant, including the requested signed
release form. On March 16, 2015, Defendants notified the
court via letter that the discovery dispute had been
temporarily resolved and asked the court to remove the
hearing from the docket.
provided her responses to Defendant, including the signed
release form, on March 31, 2015. On April 13, 2015, defense
counsel sent Plaintiff a letter requesting that she sign an
additional release form for her Medicare/Medicaid records.
This form, identical to the one previously included in the
"Request for Production of Documents" propounded in
the initial discovery, sought authorization for the release
of Plaintiff's Medicare/Medicaid records to a separate
defendant, ANPAC, on a "Consent to Release" form
generated and provided by ANPAC. On May 21, 2015,
Plaintiff's attorney sent a cover letter and signed copy
of the ANPAC release form to Defendants, satisfying the
years later, on May 21, 2018, Plaintiff's counsel filed a
motion to fix the case for trial, and the court set a
scheduling conference for June 27, 2018. On June 25, 2018,
Defendants filed an ex parte motion to dismiss for
abandonment, asserting that the last step in the prosecution
of the matter occurred prior to the May 21, 2015 reply from
opposing counsel. On June 26, 2018, the trial court signed an
order dismissing the case as abandoned. On July 30, 2018,
Plaintiff filed a motion to vacate and set aside the order of
dismissal. Plaintiff's motion was denied by the trial
court in a judgment signed on September 24, 2018.
has appealed from the September 24, 2018 judgment and
Defendants have answered the appeal, seeking damages ...