WELLS v. BANKS (2019)

Plaintiff, Kelvin Wells, appeals from a trial court judgment granting an ex parte motion to dismiss for abandonment filed by defendant, Judge Charlene Day, and dismissing plaintiff's claims against her without prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 25, 2012, Wells filed a Petition for Damages/Parent Alienation, naming Geneva Banks, A.J. Kling, and the Family Court as defendants and seeking damages for parental alienation and violation of his due process and equal protection rights. Wells thereafter amended his petition to name Judge Laura Davis of the Family Court as a defendant for allegedly proceeding in excess of her jurisdiction. Wells subsequently filed a Corrected Supplemented Petition for Damages naming Charlene Day as defendant. Judge Charlene Day responded by filing an exception raising the objection of no cause of action on August 29, 2014, and the matter was set for hearing on October 27, 2014.

Thereafter, Wells filed an opposition to Judge Day's exception and also filed a Motion to Recuse the trial court judge assigned to hear the matter. When Judge Day's exception came on for hearing on October 27, 2014, the trial court ordered that the matter be allotted to another division of the court for the Motion to Recuse to be heard. A hearing on Wells' Motion to Recuse was set for February 2, 2015. However, the matter was passed without date when none of the parties appeared for the hearing. The trial court also passed without date a February 9, 2015 hearing on a motion for default judgment filed by Wells against Banks until such time as the Motion to Recuse was heard.

On March 21, 2018, Judge Day filed an Ex Parte Motion to Dismiss for Abandonment, asserting that since February 9, 2015, three years had passed without further prosecution or defense of this case and as such, movant was entitled to an ex parte order of dismissal without prejudice for abandonment pursuant to La. C.C.P. art. 561. The trial court subsequently signed an order granting Judge Day's motion and dismissing Wells' claims against her without prejudice. Wells now appeals from the trial court's judgment.

DISCUSSION

Louisiana Code of Civil Procedure article 561(A)(1) provides that 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. In this context, a step is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Hutchison v. Seariver Maritime, Inc., 09-0410, p. 5 (La. App. 1st Cir. 9/11/09), 22 So. 3d 989, 993, writ denied, 09-2216 (La. 12/18/09), 23 So. 3d 946. Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis on appeal. Brown v. Kidney and Hypertension Associates, L.L.P., 08-0919, p. 7 (La. App. 1st Cir. 1/12/09), 5 So. 3d 258, 264. However, whether a particular act, if proven, precludes abandonment is a question of law that an appellate court reviews simply by determining whether the trial court's interpretative decision is correct. Brown, 08-0919 at p. 7, 5 So. 3d at 264.

From our review of the record, it is clear that no action has been taken in this matter by any party since the hearing on Wells's motion for default judgment was passed without date on February 9, 2015. Accordingly, we find no error in the trial court's order granting the Ex Parte Motion to Dismiss for Abandonment filed by Judge Day and dismissing Wells's claims against her without prejudice.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to appellant, Kelvin Wells.

AFFIRMED.

GUIDRY, J.