Clipper Construction, LLC and Joseph S. Tufaro Versus 131 Beverly Knoll, LLC

CLIPPER CONSTRUCTION, LLC AND JOSEPH NO. 22-C-107 S. TUFARO FIFTH CIRCUIT VERSUS COURT OF APPEAL 131 BEVERLY KNOLL, LLC STATE OF LOUISIANA

April 27, 2022

Susan Buchholz First Deputy Clerk

IN RE 131 BEVERLY KNOLL, LLC

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD A. ROWAN, JR., DIVISION "L", NUMBER 783-284

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.

WRIT GRANTED: FEBRUARY 15, 2022 JUDGMENT REVERSED; NOVEMBER 17, 2021 JUDGMENT AMENDED.

The relator, 131 Beverly Knoll, LLC, seeks review of the trial court’s February 15, 2022 judgment, granting the Motion to Set Aside Judgment of Dismissal of the respondents, Clipper Construction, LLC, and Joseph S. Tufaro. The respondents sought to set aside the trial court’s November 17, 2021 judgment granting the relator’s Ex Parte Motion to Dismiss on Grounds of Abandonment.

The relator filed the motion to dismiss the respondents’ Petition to Annul Judgment and for Enforcement of Settlement Agreement when there was no step taken by the respondents between their August 6, 2018 motion to stay execution of default judgment and their October 15, 2021 Motion for Partial Summary Judgment. “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(A)(1). On December 17, 2021, the respondents filed a motion to set aside the dismissal on the basis that they were not served the order of dismissal under La. C.C.P. art. 561(A)(4). Their memorandum argued that “the exact same parties to this lawsuit have been actively engaged in litigation in the above referenced district court suit and appellate court matter that directly involve the claims being made in the instant matter. The Appellate Court matter is directly related to the instant suit as it involves the same Judgment. As noted above, the appellate matter remains pending.” They also noted that the trial court improperly dismissed the matter with prejudice. After a hearing on February 7, 2022, the trial court granted their motion.

22-C-107

La. C.C.P. art. 561 has been construed as imposing three requirements on plaintiffs: 1) plaintiffs must take a “step” towards prosecution of their lawsuit, 2) the step must be taken in the proceedings, and with the exception of formal discovery, must appear in the record of the suit, and 3) the step must be taken within the legislatively prescribed time period of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784. We find that although the respondents were litigating similar issues in a suit in another district court during the pendency of this action, there was no step taken in the proceedings1 that appears in the record of this suit in this court which would allow examination of the record to reveal the status of the litigation with certainty. Michel v. Home Town Supermarket, Inc., 493 So.2d 142, 144 (La. App. 5 Cir. 1986), writ denied, 493 So.2d 1207 (La. 1986) (citing Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La. 1983). Therefore, the trial court’s initial judgment of dismissal on grounds of abandonment was proper, and should not have been set aside.

Although the trial court set aside its November 17, 2021 judgment because it was entered with prejudice, this is not the appropriate remedy. Although dismissals for abandonment under La. C.C.P. art. 561 shall be without prejudice, the judgment can be amended. Total Sulfide Servs., Inc. v. Secorp Indus., Inc., 96- 589 (La. App. 3 Cir. 12/11/96), 685 So.2d 514, 515; D & S Builders, Inc. v. Mickey Const. Co., Inc., 524 So.2d 245, 247 (La. App. 5 Cir. 1988).

Therefore, we grant the relator’s writ application and reverse the February 15, 2022 judgment granting the respondents’ Motion to Set Aside Judgment of Dismissal. The trial court’s November 17, 2021 judgment granting the relator’s Ex Parte Motion to Dismiss on Grounds of Abandonment shall be amended to state the dismissal is “without prejudice.”

Gretna, Louisiana, this 27th day of April, 2022.

JJM SMC JGG

1 There was no motion to consolidate the two cases filed in different divisions of the Twenty-Fourth Judicial District Court. See Sutton v. Adams, 19-0394 (La. App. 4 Cir. 5/29/19), 273 So.3d 1276, 1279.

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 04/27/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-107 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald A. Rowan, Jr. (DISTRICT JUDGE) E. John Litchfield (Respondent) Jason M. Cerise (Relator) Michael J. Marsiglia (Respondent)

MAILED Omer F. Kuebel, III (Relator) Natalie M. Dawson (Relator) Attorneys at Law 601 Poydras Street Suite 2660 New Orleans, LA 70130

• • Complete Items 1, 2, and 3. • Print your name and address on the rwenie so that we can return the card to you. • Attach this card to the back of the mallplece, or on the front If space permits. 1.,btiee ~to: Natalie M. Dawson Omer F. Kuebel, III Attorneys at Law 50 l Poydras Street- Suite 2660 New Orleans, LA 70130

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