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Truitt v. Graco, Inc.

Court of Appeals of Louisiana, Fifth Circuit

November 20, 2019

ARTHUR TRUITT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATES OF THE MINOR CHILDREN DEREK TRUITT, SHAUNDA TRUITT, AND DAVONTE TRUITT AND BRENDA TRUITT
v.
GRACO, INC., GRACO, INC. OF MINNESOTA, AND MICHAEL J. MCALVANAUGH, M.D.

          ON 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

          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE

         Plaintiffs/Appellants, 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.

         FACTS AND PROCEDURAL HISTORY

         The pertinent facts for this appeal are as follows.

         On 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.[1] 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.

         Graco 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.[2] The trial court granted Graco's motion on October 23, 2017.

         The 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.

         Graco 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.

         Appellants' 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[3] 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 followed.

         ASSIGNMENTS ...


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