Opinion
2022 CA 0409
11-04-2022
THE ESTATE OF OMECHERINEA L. WILSON v. STANDARD SECURITY LIFE INSURANCE COMPANY OF NEW YORK
Wilmetta Holiday Baton Rouge, Louisiana Appellant, In Proper Person Larry E. Mobley Lafayette, Louisiana Counsel for Appellee, Standard Security Life Insurance Company of New York
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana No. 657063 The Honorable Trudy M. White, Judge Presiding
Wilmetta Holiday Baton Rouge, Louisiana Appellant, In Proper Person
Larry E. Mobley Lafayette, Louisiana Counsel for Appellee, Standard Security Life Insurance Company of New York
BEFORE: WHIPPLE, CJ., GUIDRY AND WOLFE, JJ.
WOLFE, J.
Wilmetta Holiday appeals the trial court's judgment that dismissed as abandoned this suit against Standard Security Life Insurance Company of New York ("Standard Security"). We affirm.
A suit is abandoned when the parties fail to take any "step" in its prosecution or defense in the trial court for a period of three years. La. Code Civ. P. art. 561(A). A "step" is a formal action before the court by either the plaintiff or defendant that is intended to hasten the suit toward judgment or is the taking of formal discovery. Williams v. Montgomery, 2020-01120 (La. 5/13/21), 320 So.3d 1036, 1041. Abandonment occurs automatically on the passing of three years without a step being taken by either party and is effective without court order. Hancock Bank of Louisiana v. Robinson, 2020-0791 (La.App. 1st Cir. 3/11/21), 322 So.3d 307, 311. On the ex parte motion to dismiss on the basis of abandonment filed by any party or other interested person that is accompanied by an affidavit, the trial court shall enter a formal order dismissing the suit as of the date it was abandoned. La. Code Civ. P. art. 561(A)(3).
This suit for damages due to the alleged failure to pay benefits under a life insurance policy was filed on April 12,2017. Standard Security filed exceptions and an answer to the petition on May 10, 2017. On August 30, 2018, Standard Security moved to deem admitted its unanswered requests for admission. The trial court granted the motion on January 2, 2019. Thereafter, Standard Security filed motions to enroll, withdraw, and substitute counsel, which were ruled on by the trial court. The next pleading filed in the record was Standard Security's ex parte motion for dismissal on grounds of abandonment with accompanying affidavit, which was filed on January 12, 2022, and granted on January 19, 2022.
The month after judgment was rendered, Ms. Holiday filed an opposition to Standard Security's motion for dismissal. She then appealed the trial court's judgment that dismissed this suit without prejudice. On appeal, Ms. Holiday concedes that she took no action in this suit for three years, but argues that equity demands reversal of the trial court's judgment because her counsel was suspended from the practice of law and she was unable to engage new counsel before the motion for dismissal was filed. She also notes that efforts to proceed were hampered by the COVID-19 pandemic, which impeded the mail and compounded her inability to proceed.
Abandonment is not a punitive concept. Clark v. State Farm Mutual Automobile Insurance Co., 2000-3010 (La. 5/15/01), 785 So.2d 779, 787. Louisiana jurisprudence recognizes a plaintiff-oriented exception to the abandonment rule that applies when the failure to prosecute is due to circumstances beyond the plaintiffs control. See Food Perfect, Inc. v. United Fire and Casualty Co., 2012-2492 (La. 1/18/13), 106 So.3d 107, 108 (per curiam). Comment (c) to La. Code Civ. P. art. 561 explains, "When the court dismisses a suit on the ex parte motion of defendant and plaintiffs failure to prosecute is due to circumstances beyond [plaintiffs] control, plaintiff should rule defendant into court to show cause why the ex parte dismissal should not be vacated, alleging that plaintiffs failure to prosecute was due to circumstances beyond [plaintiffs] control." (Emphasis added.) Louisiana Code of Civil Procedure article 561A(4) provides that a motion to set aside a dismissal for abandonment may be made within thirty days of the date of the sheriffs service of the order of dismissal.
The exception is based on the principle of contra non valentem and evidences the well- established rule that prescription does not run against one who is unable to interrupt it. The exception contemplates circumstances such as natural disasters, service in the military, or confinement to a mental institution. McNealy v. Englade. 2019-0573 (La.App. 1st Cir. 2/21/20), 298 So.3d 182, 187; but see Manuel v. Lacarbo, 554 So.2d 774, 775 (La.App. 5th Cir. 1989) (finding that an attorney's failure to act was not a circumstance beyond the control of a party that would preclude dismissal for abandonment).
Ms. Holiday did not file a motion to set aside the judgment of dismissal in the trial court. Thus, the issue of whether an exception to the abandonment rule is warranted was not properly presented to the trial court. Furthermore, without a motion to set aside the judgment, there was no contradictory hearing at which she could have prevented evidence of activity outside the record to support an exception to the abandonment rule. See Woodward v. Lumbermens Mutual Casualty Co., 2000-0399 (La.App. 1st Cir. 3/28/01), 808 So.2d 554,556 (explaining that La. Code Civ. P. art 561 incorporates the procedure of instituting a contradictory hearing to set aside the dismissal); Cassilli v. Summerfield Apartments, LLC, 21-261 (La.App. 5th Cir. 1/26/22), 336 So.3d 554, 557.
Ms. Holiday's post-judgment opposition to Standard Security's motion to dismiss was untimely and insufficient to raise the issue. We recognize that Ms. Holiday is a pro se litigant. However, "[c]ourts have held [that] pro-se litigants assume responsibility for their lack of knowledge of the law." Food Perfect, Inc., 106 So.3d at 108.
As an appellate court, our judgment must be rendered upon the record on appeal. See La. Code Civ. P. art. 2164. Appellate courts have no authority to consider on appeal facts referred to in briefs that are outside the record. Kott v. Kott, 2020-0873 (La.App. 1st Cir. 4/16/21), 324 So.3d 165, 173. Further, as a general rule, appellate courts will not consider issues that were not raised in the pleadings and were not addressed by the trial court, or are raised for the first time on appeal. Blakey v. Acadian Properties Austin, L.L.C., 2020-0549 (La.App. 1st Cir. 12/30/20), 318 So.3d 141, 144-45.
Ms. Holiday's argument that this suit was abandoned through no fault of her own raises an issue that was not properly presented to the trial court and is based entirely on facts outside the appellate record. Notably, the attorney Ms. Holiday blames for her inaction is not the attorney who signed the petition and made no appearance in the record. Because we are prohibited from considering the factual allegations of her appellate brief, Ms. Holiday's arguments are insufficient to challenge the judgment of dismissal on appeal. Accord Bourg v. Entergy Louisiana, LLC, 12-829 (La.App. 5th Cir. 4/10/13), 115 So.3d 45,49, writ denied, 2013-1064 (La. 6/21/13), 118 So.3d 421.
Additionally, we note that the petition was filed on behalf of Wilmetta A. Wilson, the alleged legal guardian of Omecherinea Wilson; however, the appellant, who identifies herself as the plaintiff, is named Wilmetta Holiday. Ultimately this discrepancy is immaterial to our disposition of this appeal.
The record undisputedly establishes that more than three years passed without any step in the prosecution or defense of this suit. Thus, we affirm the judgment of the trial court that dismissed this suit as abandoned. Costs of this appeal are assessed to the appellant, Wilmetta Holiday. This memorandum opinion is issued in compliance with Uniform Rules - Courts of Appeal, Rule 2-16.1(B).
The jurisprudence clearly establishes that motions to enroll as or substitute counsel, such as those filed by Security, are not considered formal steps before the court in the prosecution of the suit. Such motions grant to counsel the right to take steps, or to prepare to take steps, toward the prosecution or defense of a case but are not considered steps because they do not hasten the matter to judgment. Paternostro v. Falgoust, 2003-2214 (La.App. 1st Cir. 9/17/04), 897 So.2d 19, 22, writ denied, 2004-2524 (La. 12/17/04), 888 So.2d 870.
AFFIRMED.