STEPHEN MCCREADY v. DOUGLAS COOK (2024)

The issue presented in this writ application is: Did the trial court err in granting a Motion to Set Aside Dismissal of a suit that had previously been dismissed pursuant to an Ex Parte Motion to Dismiss for Abandonment? Our answer is in the affirmative. We conclude the court erred in relying on hearsay, unauthenticated, and insufficient evidence to set aside the judgment which previously had dismissed the suit based on abandonment. We grant the writ application, reverse the court's judgment which set aside the judgment of abandonment, and reinstate the court's original judgment which previously had dismissed the suit without prejudice.

PROCEDURAL BACKGROUND AND FACTS

Stephen McCready filed suit against Douglas Cook on April 28, 2015 for “contribution” related to the payoff of a promissory note related to the development of a fast-food restaurant. In due course, the parties engaged in discovery and had the matter set for trial. On January 30, 2019, McCready's former counsel faxed a letter to the court requesting that the trial be continued because additional discovery was needed. On February 15, 2019, the jury trial scheduled for February 25-26, 2019 was continued without date. The letter requesting the continuance from McCready's former counsel was the last “on the record” filing in the case before McCready's new counsel filed a Motion to Substitute Counsel on June 7, 2023. An oral deposition taken on November 20, 2019 was the last “known” discovery in the case. On September 7, 2023, Cook filed an Ex Parte Motion to Dismiss for Abandonment pursuant to La. C.C.P. art. 561(A)(2). The court granted Cook's ex parte motion on October 17, 2023, dismissing the suit without prejudice, with each party to bear his own costs.

On November 8, 2023, McCready timely filed a Motion to Set Aside Dismissal pursuant to Article 561(A)(2), attaching as one of his exhibits a one-page deposition notice dated June 17, 2020 referencing service on Cook's counsel by McCready's prior counsel by “United States Mail” or “via fax or electronic mailing.” In an affidavit also attached as an exhibit to the Motion to Set Aside Dismissal, McCready's former counsel asserted that service of the subject deposition notice on Cook's counsel was by email. Cook's counsel claimed no knowledge of the deposition notice. The deposition never took place. After a hearing, the court granted McCready's Motion to Set Aside Dismissal and reinstated the suit. This timely writ application followed.

In his writ application, Cook argues the court erred in considering inadmissible hearsay (the affidavit by McCready's former counsel) and unauthenticated evidence (the unauthenticated deposition notice allegedly served by McCready's former counsel upon Cook's counsel by email in 2020), which documents were attached to McCready's Motion to Set Aside Dismissal. Cook argues the entire affidavit was inadmissible hearsay. He also argues the deposition notice was unauthenticated at the hearing, and he had not “expressly designated” an email address for service in this suit, as per La. C.C.P. art. 1313(A)—though he acknowledged that he and opposing counsel did use email to communicate from time to time.

The affidavit submitted by McCready's former counsel claimed a “habit and practice” of the parties using email to serve each other with discovery requests, which Cook claims is an inaccurate statement. Cook also argues that the affiant, who was McCready's former counsel, not current counsel, was not subject to cross-examination at the contradictory hearing on this issue. He argues the affidavit submitted into evidence by McCready in support of his Motion to Set Aside Dismissal is not the same as an affidavit accompanying Cook's Ex Parte Motion to Dismiss for Abandonment, as the first motion is ex parte and the affidavit filed therewith is self-proving; however, the Motion to Set Aside Dismissal is to be handled as a contradictory proceeding and any affidavit filed in connection therewith is not self-proving. See La. C.E. art. 1101(A), (B). Thus, Cook argues the affidavit filed with McCready's Motion to Set Aside Dismissal is inadmissible hearsay which cannot be used to authenticate the allegedly emailed deposition notice relied upon by McCready in support of his Motion to Set Aside Dismissal.

LAW AND ANALYSIS

Dismissal of a civil action on the grounds of abandonment is governed by La. C.C.P. art. 561, which provides, in pertinent part:

A. (1) 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[.] ․

(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit that states that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314 and shall execute a return pursuant to Article 1292.

(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.

B. 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.

The writ application evidences that Cook filed an Ex Parte Motion to Dismiss for Abandonment pursuant to Article 561 on September 7, 2023. The court granted Cook's Motion to Dismiss by judgment dated October 17, 2023, pursuant to the ex parte procedure set forth in Article 561(A)(2). On November 8, 2023, McCready filed a Motion to Set Aside Dismissal of the suit. His motion attached four exhibits: the judgment of dismissal dated October 17, 2023 (Exhibit A); the deposition notice dated June 17, 2020 purportedly emailed by McCready's former counsel to Cook's counsel (Exhibit B); an affidavit of McCready's former counsel attesting to the emailed deposition notice (Exhibit C); and discovery propounded by McCready's new counsel on June 13, 2023 (Exhibit D) that sought to “tack” onto the alleged June 17, 2020 deposition notice. Cook opposed the motion.

At the contradictory hearing on the motion, McCready's exhibits were admitted over the objection of Cook's counsel, who argued the affidavit attached to the motion was hearsay and should not be admitted. Additionally, Cook's counsel stated he never received the purportedly emailed deposition notice, nor had he ever “expressly designated” an email address to be used between the parties in any pleading, as required by La. C.C.P. art. 1313(A)(4). McCready's counsel replied that the affidavit was not hearsay. The trial court then ruled in McCready's favor, setting aside the dismissal based on abandonment, without discussing the arguments or providing reasons.

Cook argues herein that at the time of the allegedly served deposition notice in 2020, La. C.C.P. art. 1474 specified that formal discovery had to be served “as provided in Article 1313.” Article 1313(A)(4) in 2020 stated that service “by electronic means” (fax or email) was permitted only to “the number or address expressly designated in a pleading or other writing for receipt of electronic service.” Cook argues neither he nor his counsel had ever “expressly designated” an email address in a pleading or other writing to receive service for practice management purposes. He further reiterates the arguments made at the contradictory hearing that McCready failed to support his Motion to Set Aside Dismissal with competent evidence. We find merit to this latter contention.

An off-the-record discovery step must be proved by a plaintiff with admissible evidence. Dunn v. City of Kenner, 09-1108 (La. 9/18/09), 17 So.3d 400; Lewis v. Digital Cable and Comm'ns, 15-345 (La. App. 5 Cir. 11/19/15), 179 So.3d 840, 844-45. A sworn affidavit is hearsay, and is, therefore, not competent evidence, if it is objected to, unless its use is specifically authorized by statute. Occidental Properties Ltd. v. Zufle, 14-494 (La. App. 5 Cir. 11/25/14), 165 So.3d 124, 130. The record reflects that Cook's counsel objected to the admissibility of McCready's former counsel's affidavit, which objection was overruled. While Article 561(A)(2) specifically allows an affidavit to be used in the ex parte procedure concerning a motion to dismiss a suit based on abandonment, paragraph (A)(3), which concerns a motion to set aside the dismissal, does not contain such an authorization. Further, no testimony was presented at the hearing; the only evidence admitted at the hearing, over Cook's objection, was McCready's four exhibits attached to his Motion to Set Aside Dismissal. Accordingly, we conclude that McCready's current counsel's assertions at the hearing that the deposition notice was served upon defense counsel by McCready's former counsel, via email, are uncorroborated and based on inadmissible hearsay evidence. Therefore, we conclude that McCready failed to present sufficient competent evidence to support his Motion to Set Aside the original judgment of dismissal based on abandonment. See Guyllette v. American Telephone & Telegraph, 22-0196 (La. App. 1 Cir. 6/21/22), 2022 WL 2231951, writ denied, 349 So.3d 2 (La. 11/1/22).¹

DECREE

The writ application is granted. The judgment granting the Motion to Set Aside Dismissal for abandonment is reversed. The trial court's original judgment which previously had dismissed the suit without prejudice based on abandonment is reinstated.

WRIT GRANTED; JUDGMENT REVERSED; ORIGINAL JUDGMENT DISMISSING SUIT WITHOUT PREJUDICE AS ABANDONED REINSTATED

FIFTH CIRCUIT

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SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

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FOOTNOTES

1.   Under the circumstances, we pretermit discussion of Cook's arguments concerning whether McCready's former counsel properly served Cook's counsel with the subject deposition notice in accordance with La. C.C.P. art. 1313.

JUDE G. GRAVOIS JUDGE