Opinion
2018 CU 1566
04-17-2019
SUSAN L. PITTMAN v. HENRY P. FLANAGAN
Eric A. Bopp Walter R. Woodruff, Jr. Tyler S. Loga Mandeville, Louisiana Attorneys for Appellant/Defendant/ Plaintiff-in-Reconvention, Henry P. Flanagan Lindsey M. Ladouceur Jane C. Alvarez Abita Springs, Louisiana Attorneys for Appellee/Plaintiff/ Defendant-in-Reconvention Susan L. Pittman Ernest S. Anderson Slidell, Louisiana Attorney for Appellees/Defendants- in-Reconvention C.P. and T.P., minor children
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Docket No. 2011-14788 Honorable Dawn Amacker, Judge Presiding Eric A. Bopp
Walter R. Woodruff, Jr.
Tyler S. Loga
Mandeville, Louisiana Attorneys for Appellant/Defendant/
Plaintiff-in-Reconvention,
Henry P. Flanagan Lindsey M. Ladouceur
Jane C. Alvarez
Abita Springs, Louisiana Attorneys for Appellee/Plaintiff/
Defendant-in-Reconvention
Susan L. Pittman Ernest S. Anderson
Slidell, Louisiana Attorney for Appellees/Defendants-
in-Reconvention
C.P. and T.P., minor children BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal from a trial court judgment denying the motion to set aside a previous judgment dismissing with prejudice Defendant/Plaintiff-in-Reconvention's, Henry P. Flanagan, declaratory action for disavowal as abandoned against Plaintiff/Defendant-in-Reconvention, Susan L. Pittman. For the reasons that follow, we affirm the judgment denying the motion to set aside the judgment of dismissal. We amend the judgment of dismissal as set forth herein and affirm as amended.
We note that the judgment at issue denied the motion to set aside and denied a motion for new trial. The appeal was taken from the judgment, but the only error assigned relates to the denial of the motion to set aside. As will be explained subsequently in this opinion, the motion for new trial and the motion to set aside related to the same subject matter and the merits of this appeal encompass both motions.
FACTS AND PROCEDURAL HISTORY
This matter was originally filed on August 19, 2011, when Susan filed a petition for registration of support order for modification, to establish child custody, to modify child custody, and to establish child support. Susan and Henry were divorced on October 3, 2003, and one child was born during the marriage. Twins (minor children) were born to Susan on May 15, 2004, and Susan alleged that Henry had formally acknowledged the minor children by placing his name on their birth certificates. As part of the petition, Susan requested the trial court order Henry to pay child support for the minor children. On October 14, 2011, Henry filed several exceptions, an answer, and a reconventional demand for declaratory relief for disavowal of paternity of the minor children. Henry alleged that the minor children were conceived through a sperm donor after the divorce and were not his biological children. He denied adopting or formally acknowledging the minor children. Named as defendants-in-reconvention were Susan and the minor children. On November 1, 2011, the trial court appointed Ernest Anderson, an attorney, to represent the minor children.
On June 20, 2012, the trial court signed a consent judgment between the parties regarding various matters concerning the custody, visitation, and child support of all three children. As part of the consent judgment, the petition for disavowal was continued without date. This court notes that Mr. Anderson signed the consent judgment on behalf of the minor children. In December of 2013, the attorney for Henry noticed the deposition of Susan. The notice was served only on Susan's attorney of record. The deposition was taken on December 17, 2013. Present were Susan, her attorney, Henry, and his attorney. On November 2, 2015, Henry's attorney was discharged and the current attorney enrolled to represent Henry. On October 31, 2016, Henry filed several motions including a motion to reset the petition for disavowal. In response, on the same day, Susan filed an ex parte motion to dismiss the disavowal action on grounds of abandonment. Despite being filed ex parte, the trial court set the motion to dismiss for a hearing.
On February 21, 2017, the trial court heard the motion for abandonment filed by Susan, and on May 22, 2017, the trial court signed a judgment granting Susan's motion to dismiss the disavowal action on grounds of abandonment and dismissing Henry's reconventional demand for declaratory relief for disavowal of paternity with prejudice. Before the judgment was signed, Henry filed a motion for new trial on March 7, 2017. A hearing was held on August 31, 2017, and the motion for new trial was taken under advisement. Prior to a written judgment being issued by the trial court, Henry filed a pleading entitled "motion to set aside" on October 25, 2017 that contained the same arguments as the motion for new trial. The trial court issued reasons for judgment stemming from the August 31, 2017 hearing concerning the motion for new trial on November 21, 2017. Prior to that date, the trial court issued an order setting the previously filed motion to set aside for hearing on December 13, 2017. The trial court had noted in its November 21, 2017 reasons for judgment that the substance of the motion for new trial and the argument therein was more accurately described as a motion to set aside the judgment, and the trial court treated it as such. A hearing on the motion to set aside was held on December 13, 2017. On January 22, 2018, the trial court signed a judgment denying both the motion for new trial and the motion to set aside. It is from this judgment that Henry appeals.
We note that although the judgment states that the motion to dismiss the disavowal action on grounds of abandonment was ex parte, as we have stated, the trial court did set the matter for a hearing, and all parties were represented at the hearing, including the minor children.
STANDARD OF REVIEW
Although the Louisiana Constitution extends appellate jurisdiction in civil cases to both law and facts, the exercise of this power is limited by the jurisprudential rule that factual determinations of the trier of fact will not be set aside by a reviewing court unless they are manifestly erroneous or clearly wrong. Brewer v. J.B. Hunt Transp., Inc., 2009-1408 (La. 3/16/10), 35 So. 3d 230, 237. It is well-settled that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, 549 So. 2d at 844. If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So. 2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev., 617 So. 2d 880, 883 (La. 1993).
LAW AND DISCUSSION
Henry's only assignment of error is that the trial court erred in finding that the December 17, 2013 deposition of Susan did not constitute a step in the prosecution sufficient to interrupt the period of abandonment. Susan counters that the notice of deposition was not a step in the prosecution of the disavowal action since the minor children were not served with the deposition notice through their court-appointed attorney. Therefore, she argues that the motion to reset filed by Henry on October 31, 2016, was the next step in the prosecution and was after the disavowal action was abandoned.
An action 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. C.C.P. art. 561. Louisiana Code of Civil Procedure article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party and is effective without court order. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785 So. 2d 779, 784. Relying on Clark, 785 So. 2d at 785, Henry asserts that the jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. The Louisiana Supreme Court also stated:
The purpose of the [La.] C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff's inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action.Clark, 785 So. 2d at 785-86 (quoting Kanuk v. Pohlmann, 338 So. 2d 757, 758 (La. App. 4 Cir. 1976), writ denied, 341 So. 2d 420 (La. 1977)). Abandonment is not meant to dismiss actions on mere technicalities but to dismiss actions which in fact clearly have been abandoned. Clark, 785 So. 2d at 786.
At issue in the present case is the language contained in La. C.C.P. art. 561(B), which provides:
Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. [Emphasis added].In interpreting the meaning of the bolded phrase above, the Louisiana Supreme Court noted in Guillory v. Pelican Real Estate, Inc., 2014-1539 (La. 3/17/15), 165 So. 3d 875, 877, "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9; Pumphrey v. City of New Orleans, 2005-979 (La. 4/4/06), 925 So. 2d 1202, 1209. It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Guillory, 165 So. 3d at 877. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Guillory, 165 So. 3d at 877. Applying the above precepts, the Louisiana Supreme Court held that when the plaintiffs sent discovery to only one party rather than serving all parties, under the plain language of La. C.C.P. art. 561(B), the discovery did not constitute a step in the prosecution of the case for purposes of abandonment. Guillory, 165 So. 3d at 877.
This court noted in Clark v. City of Hammond, 2000-0673 (La. App. 1 Cir. 8/10/00), 767 So. 2d 882, 884, that even though the law favors, and justice requires, that an action be maintained whenever possible, when discovery was not "served on all parties," no step in the prosecution of the action took place, even if the plaintiff did not intend to abandon her action. Furthermore, in Rollins v. State through Dep't of Public Safety and Corrections, 2017-901 (La. App. 3 Cir. 3/7/18), 240 So. 3d 258, 261-62, writ denied, 2018-0553 (La. 5/25/18), 243 So. 3d 570, the court held that discovery requests that were served on only one party, and not all the parties, failed to constitute a step in the prosecution or defense of the action under La. C.C.P. art. 561.
In Mosley v. Missouri Pac. R. Co., 36,907 (La. App. 2 Cir. 3/5/03), 839 So. 2d 1218, writ denied, 2003-0989 (La. 5/30/03), 845 So. 2d 1055, the court held that service of interrogatories satisfies a step in the prosecution only when all parties are served with same. Benjamin-Jenkins v. Lawson, 2000-0958 (La. App. 4 Cir. 3/7/01), 781 So. 2d 893, 895, writ denied, 2001-1546 (La. 9/14/01), 796 So. 2d 681, also addressed whether discovery, which was not served on all parties, constituted a step in the prosecution. The court stated, "in order to satisfy La. C.C.P. art. 561, it is necessary that any discovery pleadings be mailed to all the parties to the action." Benjamin-Jenkins, 781 So. 2d at 895. The court further noted that the mere intention to take a step in the prosecution or defense of her claim without having actually taken such a step is insufficient to interrupt the abandonment period. Benjamin-Jenkins, 781 So. 2d at 895.
It is undisputed that Mr. Anderson was appointed by the trial court to represent the minor children on November 1, 2011. By consent judgment, the parties continued the disavowal action without date on June 20, 2012. The notice of deposition issued by Henry's attorney in December of 2013 was sent only to Susan's attorney of record. The deposition was taken on December 17, 2013. The minor children were not represented at the deposition, as their attorney was not served with the notice. Therefore, the discovery was not "served on all parties," and no step in the prosecution of the action took place. The next step following the June 20, 2012 consent judgment was taken on October 31, 2016, when Henry filed a motion to reset the petition for disavowal. Therefore, the disavowal action was abandoned pursuant to La. C.C.P. art. 561 prior to the filing of the motion to reset same.
Henry further argues that because Susan, the natural tutrix of the minor children, was given notice of the deposition, this was sufficient to interrupt the abandonment period. When no tutor has been appointed for a child of separated or divorced parents, or an illegitimate child, he is a proper party defendant in an action brought against him. In this instance, the court must appoint an attorney at law to represent him. La. C.C.P. arts. 732 & 5091. All proceedings against such a defendant must be conducted contradictorily against the attorney at law appointed by the court to represent him. La. C.C.P. art. 5091. Ordinarily, under La. C.C.P. art. 5095, the appointed attorney has the power and duty to except to the petition, file an answer in time to prevent a default judgment from being rendered, plead therein any affirmative defense available, and prosecute an appeal from an adverse judgment. He "generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant." La. C.C.P. art. 5095; Enterkin v. Devaux, 266 So. 2d 721, 723 (La. App. 3 Cir. 1972).
We agree with the trial court that the minor children are parties to the disavowal action and are represented by Mr. Anderson. It is undisputed that Mr. Anderson was appointed on November 1, 2011. The notice of deposition of Susan dated December 5, 2013, occurred after the appointment of Mr. Anderson. Therefore, notice of the deposition sent only to the minor children's mother did not interrupt the abandonment period.
DISMISSAL BY ABANDONMENT
On review of this matter, we note that the trial court's judgment of May 22, 2017, dismissed the disavowal action "with prejudice." However, a dismissal of an action on the grounds of abandonment may only be made "without prejudice." Burgess, Inc. v. Par. of St. Tammany, 2017-0153 (La. App. 1 Cir. 10/25/17), 233 So. 3d 58, 62 n.1, writ denied, 2017-2179 (La. 2/23/18), 237 So. 3d 515. Therefore, the dismissal of the disavowal action pursuant to La. C.C.P art. 561 on grounds of abandonment should have been "without prejudice." Accordingly, we amend the judgment dismissing the disavowal action to delete the words "with prejudice" and to substitute the words "without prejudice." See Claiborne Med. Corp. v. ABC Ins. Co., 2015-489 (La. App. 5 Cir. 1/27/16), 185 So. 3d 216, 221, writ denied, 2016-0374 (La. 4/15/16), 191 So. 3d 1036.
CONCLUSION
For the above and foregoing reasons, we affirm the January 22, 2018 judgment denying the Motion to Set Aside the judgment of dismissal. Furthermore, we amend the May 22, 2017 judgment of dismissal as set forth herein and affirm as amended. All costs of this appeal are assessed against Henry P. Flanagan.
AMENDED; AFFIRMED AS AMENDED.