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Fowler v. McKeever

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

SHARON FOWLER, INDIVIDUALLY AND SHARON FOWLER ON BEHALF OF, AND AS NATURAL MOTHER AND TUTRIX OF HER MINOR CHILD HANK FOWLER Plaintiff-Appellant
v.
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

          OFFICE 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

          Before PITMAN, COX, and THOMPSON, JJ.

          THOMPSON, J.

         Plaintiff, 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.

         FACTS/PROCEDURAL HISTORY

         On 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.

         Defendants 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.

         Plaintiff 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 request.

         Three 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.

         Plaintiff has appealed from the September 24, 2018 judgment and Defendants have answered the appeal, seeking damages ...


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