Opinion
2023 CW 1326
03-25-2024
CASCADE FUNDING MORTGAGE TRUST HB7 v. THE OPENED SUCCESSION OF THOMAS W. KLEINPETER AND THE OPENED SUCCESSION OF DOROTHY B. KLEINPETER (A/K/A DOROTHY NELL BURT, DOROTHY NELL KLEINPETER) AND JOHN B. KLEINPETER AND SUSANK. FREMIN GRAVOIS
In Re: John Kleinpeter in his capacity as Executor of the Estates of Dorothy and Burt Kleinpeter, applying for supervisory writs, 17th Judicial District Court, Parish of Lafourche, No. 133325.
BEFORE: McCLENDON, WELCH, AND HESTER, JJ.
WRIT GRANTED. The trial court's November 6, 2023 ruling overruling the evidentiary objections of defendants, John Kleinpeter, individually and as representative of the Succession of Thomas W. Kleinpeter and Succession of Dorothy B. Kleinpeter ("Kleinpeters"), and granting plaintiff's, Cascade Funding Mortgage Trust HB7's ("Cascade"), "Motion to Set Aside Abandonment" and, alternatively, "Motion to Amend Order" is reversed. In a motion to strike, and at the hearing on Cascade's Motion to Set Aside Abandonment, the Kleinpeters objected to admission of an affidavit by Gina Feezer ("Feezer Affidavit") and attachments thereto as inadmissible hearsay. This court has explained that "[a] sworn affidavit is considered hearsay and is, therefore, not competent evidence unless it is specifically authorized by statute." Reyer v. Milton Homes, LLC, 2018-0580 (La.App. 1st Cir. 2/25/19), 272 So.3d 604, 609. A hearing on a motion to set aside dismissal on the basis of abandonment is a contradictory hearing wherein the plaintiff must produce evidence as to why the order of dismissal shall not be set aside. Hancock Bank of Louisiana v. Robinson, 2020-0791 (La.App. 1st Cir. 3/11/21), 322 So.3d 307, 311; La. Code Civ. P. art. 963. There is no statutory authority permitting the admission of an affidavit at a hearing on a motion to set aside dismissal on the basis of abandonment. Therefore, the trial court abused its discretion by overruling the Kleinpeters' objection and admitting the Feezer Affidavit and the attachments thereto into evidence. Furthermore, considering the absence of admissible evidence in support of Cascade's motion to set aside abandonment, we find that the trial court erred by granting Cascade's motion and setting aside the dismissal. See BAC Home Loans Servicing, LP v. Louis, 2020-0717 (La.App. 1st Cir. 5/13/21), 326 So.3d 904, 909. Accordingly, we deny the portion of Cascade's motion seeking to set aside the trial court's December 13, 2022 judgment of dismissal. However, in its motion to set aside dismissal, Cascade alternatively requested that the trial court amend its December 13, 2022 judgment dismissing Cascade's suit with prejudice to state that the dismissal is without prejudice. When a suit is dismissed under La. Code Civ. P. art. 561(A) (3), the dismissal is without prejudice. Johnson v. Am. Bell Fed. Credit Union, 2014-2551 (La. 3/27/15), 164 So.3d 182 (per curiam). Therefore, we grant the portion of Cascade's motion seeking amendment of the December 13, 2022 judgment. The December 13, 2022 judgment is amended to state the dismissal is without prejudice.
PMC
JEW
CHH