DR. CARROL I. FISCHER, JR.
CHAD ROGERS, CUVEE, L.L.C., DECATUR HOTELS, LLC AND THE NEW ORLEANS BOARD OF TRADE, LIMITED
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-08573,
DIVISION "A" Honorable Ellen M. Hazeur, Judge
Charles E. Riley, IV Megan S. Peterson Lacresha D. Wilkerson
SIMON PERAGINE SMITH & REDFEARN, L.L.P. COUNSEL FOR
Ainsworth Robichaux ATTORNEY AT LAW COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
COSSICH LOBRANO JUDGE
tort case, defendant/appellant, Chad Rogers
("Rogers"), appeals the November 28, 2018 judgment
of the district court, which vacated the August 9, 2018
judgment dismissing this case as abandoned.
Plaintiff/appellee, Dr. Carrol I. Fischer, Jr. ("Dr.
Fischer"), filed a motion to dismiss the appeal on the
basis that the November 28, 2018 judgment is a
non-appealable, interlocutory judgment. In a separate order,
we deny the motion. Rather, for the reasons that follow, we
convert the appeal to a writ, grant the writ, and deny
following procedural history is pertinent to the issues
before this Court. On August 14, 2009, Dr. Fischer filed his
original petition for damages. On April 28, 2015, the parties
attended a scheduling conference, where trial was set on
December 7, 2015. On September 28, 2015, Dr. Fischer filed an
unopposed motion to continue trial without date because the
parties were negotiating settlement. On September 29, 2015,
the district court signed the order continuing trial. Less
than three years later, on May 21, 2018, Dr. Fischer filed a
motion to reset the trial, and the district court set a
scheduling conference on August 15, 2018.
August 6, 2018, Rogers filed an ex parte motion to dismiss
the suit as abandoned pursuant to La. C.C.P. art. 561,
arguing that three years had elapsed since the last step
taken in furtherance of the prosecution of the case. Rogers
contended that the April 28, 2015 scheduling conference was
the "last step," and that the September 28, 2015
motion to continue trial without date did not qualify as a
step in furtherance of the prosecution of the case. On August
9, 2018, the district court rendered judgment granting
Rogers' motion and dismissing the case without prejudice.
August 17, 2018, Dr. Fischer filed a motion to set aside the
order of dismissal, arguing that three years had not elapsed
since the last step in furtherance of the prosecution of the
case. According to Dr. Fischer's argument, the last step
in the prosecution of the case was the district court's
September 29, 2015 order continuing trial. The district court
agreed with Dr. Fischer, and following a hearing on October
26, 2018, the district court rendered judgment on November
28, 2018 granting Dr. Fischer's motion and vacating the
August 9, 2018 judgment of dismissal. The district court
designated the November 28, 2018 judgment as an
"appealable final Judgment in accordance with La. C.C.P.
Art. 1915." This appeal followed.
preliminary issue before this Court is whether we have
jurisdiction over the matter before us. This appeal arises
from a judgment vacating a judgment of dismissal on the
grounds of abandonment. A judgment vacating a judgment of
dismissal due to abandonment is a non-appealable,
interlocutory judgment. Gonzales v. Gertrude Gardner
Realtors, Inc., 2001-1858, p. 1 (La.App. 4 Cir.
3/27/02), 815 So.2d 300, 301. The district court improperly
designated the judgment as a final judgment. Designating a
judgment vacating a judgment of dismissal for abandonment as
final does not make the judgment appealable. Bank of New
York v. Holden, 2015-0466, pp. 4-5 (La.App. 5 Cir.
12/23/15), 182 So.3d 1206, 1208 ("Although the trial
court certified the judgment at issue as final and
immediately appealable, not all rulings may be certified as
final under La. C.C.P. art. 1915(B)"). We lack appellate
jurisdiction over this case. See id.; see also
Gonzales, 2001-1858, p. 1, 815 So.2d at 301.
proper procedural vehicle to seek review of an interlocutory
judgment that is not immediately appealable is an application
for supervisory writ." Delahoussaye v. Tulane Univ.
Hosp. & Clinic, 2012-0906, 2012-0907, p. 4 (La.App.
4 Cir. 2/20/13), 155 So.3d 560, 562 (citations omitted). In
civil cases, Rule 4-3 of the Uniform Rules-Courts of Appeal
allows 30 days from the date of notice of the ruling to file
an application for supervisory writs. This Court has
"exercised its discretion to convert an appeal of a
non-appealable judgment into an application for supervisory
writs" where both of the following circumstances occur:
(i) The motion for appeal has been filed within the
thirty-day time period allowed for the filing of an
application for supervisory writs under Rule 4-3 of the
Uniform Rules, Courts of Appeal.
(ii) When the circumstances indicate that an immediate
decision of the issue sought to be appealed is necessary to
ensure fundamental fairness and judicial efficiency, such as
where reversal of the trial court's decision would
terminate the litigation.
Lee v. Sapp, 2017-0490, pp. 4-5 (La.App. 4 Cir.
12/6/17), 234 So.3d 122, 126 (citing Mandina, Inc. v.
O'Brien, 2013-0085, pp. 7-8 (La.App. 4 Cir.
7/31/13), 156 So.3d 99, 104 (quoting Delahoussaye,
2012-0906, 2012-0907, pp. ...