ARTHUR TRUITT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATES OF THE MINOR CHILDREN DEREK TRUITT, SHAUNDA TRUITT, AND DAVONTE TRUITT AND BRENDA TRUITT
GRACO, INC., GRACO, INC. OF MINNESOTA, AND MICHAEL J. MCALVANAUGH, M.D.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 499-621, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, ARTHUR TRUITT, INDIVIDUALLY
AND AS ADMINISTRATOR OF THE ESTATES OF THE MINOR CHILDREN
DEREK TRUITT, SHAUNDA TRUITT, AND DAVONTE TRUITT AND BRENDA
TRUITT Jack H. Tobias
COUNSEL FOR DEFENDANT/APPELLEE, GRACO, INC. Lynn M. Luker
composed of Judges Marc E. Johnson, Stephen J. Windhorst, and
John J. Molaison, Jr.
E. JOHNSON JUDGE
Arthur Truitt, individually and as administrator of the
estates of the minor children, Derek Truitt, Shaunda Truitt,
and Davonte Truitt, and Brenda Truitt, appeal the judgment
that found their action was abandoned and dismissed it in
favor of Defendant/Appellee, Graco, Inc. (hereinafter
referred to as "Graco"), from the 24th
Judicial District Court, Division "L," and the
subsequent denial of their motion to set aside and vacate the
judgment of dismissal and motion for new trial. For the
following reasons, we affirm the trial court's judgments.
AND PROCEDURAL HISTORY
pertinent facts for this appeal are as follows.
October 4, 1996, Appellants filed a petition against Graco,
Graco, Inc. of Minnesota, and Dr. Michael J. McAlvanaugh,
alleging they incurred damages when Mr. Truitt suffered
injuries resulting from the use of an airless spray paint gun
and the subsequent treatment of those injuries. Years later, in
2000, Avondale Industries, Inc. (hereinafter referred to as
"Avondale") was served with a notice of deposition
for records by Appellants, seeking information regarding the
spray gun and personnel information for Mr. Truitt. At that
time, Avondale was not a party to the action. However, in
2002, Avondale filed a petition for intervention, seeking
reimbursement for payments made on behalf of Mr. Truitt for
medical benefits and indemnity payments. Over the years, the
matter had been set for trial on a number of occasions, but
the trial was continued each time.
filed an ex parte motion to dismiss for abandonment
on October 23, 2017. In its motion, Graco alleged that
Appellants' action was abandoned because they failed to
take a step in the prosecution of the action for a period of
greater than three years and the action was considered
abandoned on October 16, 2017. Graco attached a copy of a
letter dated October 16, 2014 from attorney Richard Vale
addressed to Appellants' attorney, stating that responses
to the second request for admissions were enclosed with the
letter; Mr. Vale did not recall his law firm having
possession of the spray gun at any time; and Mr. Vale's
client was not a party to the matter. The trial court granted
Graco's motion on October 23, 2017.
next month, on November 30, 2017, Appellants filed a motion
to set aside judgment of abandonment. Appellants argued that
Avondale was purchased by Northrop Grumman Ship Systems, Inc.
(hereinafter referred to as "Northrop Grumman"),
and the attorney for Northrop Grumman, Richard Vale,
responded to Avondale's outstanding notice of records of
deposition for records on October 22, 2014, which constituted
a step in the defense of the matter. Appellants attached a
letter dated October 22, 2014 from Mr. Vale to its motion.
Because October 22, 2017 fell on a Sunday, Appellants further
argued that their action could not have abandoned until
October 24, 2017, and the action had not been abandoned on
the day Graco filed its motion for abandonment because it was
filed one day early. Appellants contended that Graco's
premature filing of its motion to dismiss for abandonment was
actually a step in the defense of the case.
opposed Appellants' motion to set aside judgment by
arguing that Mr. Vale's client, Huntington Ingalls
Incorporated, was not a party to the lawsuit at the time the
October 22, 2014 letter was sent because it had previously
dismissed its petition for intervention. Graco also argued
that the October 22nd letter was not formal
discovery and was not a step in the prosecution or defense of
the case because it was not served on all of the parties.
motion to set aside judgment was heard on April 30, 2018. At
the conclusion of the hearing, the trial court denied
Appellants' motion. A written judgment denying the motion
was rendered on the same day. Appellants filed a motion for
new trial on May 9, 2019. In their motion,
Appellants reasserted their argument that the October 22,
2014 letter from Mr. Vale was a response to formal discovery
and was a step in the defense of the action. They further
reasserted the argument that Graco's premature filing of
its motion to dismiss for abandonment interrupted abandonment
and was also considered a step in the defense of the action.
Appellants' motion for new trial was denied by the trial
court on July 9, 2018. The instant devolutive appeal