Sydiryl Lewis v. Iberia Bank

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT P.O. Box 16577 Lake Charles LA 70616 (337) 433-9403 NOT DESIGNATED FOR PUBLICATION Francis X. Neuner, Jr. Jeffrey K. Coreil Laborde & Neuner LaBorde & Neuner P.O. Box 52828 P. O. Drawer 52828 Lafayette LA 70505-2828 Lafayette LA 70505 REHEARING ACTION: February 12, 2014 Docket Number: 13 00927-CW SYDIRYL LEWIS VERSUS IBERIA BANK Writ Application from Lafayette Parish Case No. C-20124763 BEFORE JUDGES: Hon. Sylvia R. Cooks Hon. Jimmie C. Peters Hon. Shannon J. Gremillion As counsel of record in the captioned case, you are hereby notified that the ruling for the application for rehearing filed by Iberia Bank is: MOTION FOR REHEARING GRANTED. We hereby grant the application for rehearing filed by the defendant, IberiaBank, and modify this court’s ruling of October 23, 2013, to state the following: WRIT GRANTED; RELIEF DENIED. This court’s original ruling on the instant writ application was based on an incomplete record. As pointed out by the defendant, on December 12, 2012, the plaintiff, Sydiryl Lewis, was personally served with notice of the hearing set for January 22, 2013, on the exception of prescription. The plaintiff’s sole argument advanced against the trial court’s ruling granting the exception of prescription and dismissing his suit is that he was not present at the January 22 hearing. We find that the defendant is correct in noting that the issue of whether to proceed in a civil action without the presence of an incarcerated party who received proper notice of the hearing is at the discretion of the trial court. See Leeper v. Leeper, 44,777 (La.App. 2 Cir. 9/23/09), 21 So.3d 1006 . Under the facts of this case, we find no abuse in the trial court’s decision to proceed with this hearing in the plaintiff’s absence. Since this is the sole argument advanced by the plaintiff against the trial court’s decision and since we hold that the trial court did not abuse its discretion in this regard, we affirm the trial court’s judgment granting the exception of prescription and dismissing the plaintiff’s suit. cc: Sydiryl Lewis, Pro Se