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Fischer v. Chad Rogers, Cuvee, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

October 9, 2019

DR. CARROL I. FISCHER, JR.
v.
CHAD ROGERS, CUVEE, L.L.C., DECATUR HOTELS, LLC AND THE NEW ORLEANS BOARD OF TRADE, LIMITED

          APPEAL 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 PLAINTIFF/APPELLEE

          Thomas Ainsworth Robichaux ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          JOY COSSICH LOBRANO JUDGE

         In this 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 relief.

         The 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.

         On August 6, 2018, Rogers filed an ex parte motion to dismiss the suit as abandoned pursuant to La. C.C.P. art. 561, [1] 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.

         On 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."[2] This appeal followed.

         The 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.

         "The 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. ...


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