The opinion
BERTHA COLEMAN, SARAH * NO. 2023-CA-0233
COUSIN, TYRONE DOSS,
STERLING DOUCETTE, *
DAVID GILYOT, JAMES COURT OF APPEAL
ELLIS, DIANA HAYES, *
RODNEY LEMON, RICHARD FOURTH CIRCUIT
LEON, DAVID NIXON, *
AUGUSTINE OGBUEFI, STATE OF LOUISIANA
CHARLES WILLIAMS, *******
YOLANDA DUPATY
ZEIGLER, ET AL.
VERSUS
THE BOARD OF DIRECTORS
OF EASTOVER PROPERTY
OWNERS ASSOCIATION,
EASTOVER NEIGHBORHOOD
IMPROVEMENT AND
SECURITY DISTRICT, THE
GOLF CLUB OF NEW
ORLEANS, LLC, DELTA
MINING, INC., EASTOVER
COMMERCIAL PROPERTIES,
LLC, A/K/A EASTOVER
COMMERCIAL PROPERTY,
LLC, ET AL.
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2014-07707, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Karen
K. Herman)
Shermin S. Khan
THE KHAN LAW FIRM
2714 Canal St., Suite 300
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT
Colin D. Sherman
C.E. Sorey, II (Pro Hac Vice)
Brett E. Emmanuel
SHERMAN & LACEY, LLP
118 N. Royal Street, Suite 702
Mobile, AL 36602
COUNSEL FOR DEFENDANT/APPELLEE, THE BOARD OF
DIRECTORS OF EASTOVER PROPERTY OWNERS ASSOCIATION,
INC.
Lance B. Williams
McCRANIE SISTRUNK ANZELMO HARDY MCDANIEL & WELCH, LLC
195 Greenbriar Boulevard, Suite 200
Covington, LA 70433
COUNSEL FOR DEFENDANTS/APPELLEES, EASTOVER
EXCAVATORS, LLC, UTILITY CONSTRUCTORS, INC., AND
BRIERFIELD INSURANCE COMPANY
APPEAL DISMISSED
SEPTEMBER 21, 2023
DLD The plaintiffs, Tyrone Doss, Sterling Doucette, David Nixon, and Leon
PAB
KKH Richard, seek review of the district court’s judgment granting an ex parte motion
to dismiss on the grounds of abandonment in favor of the defendants, Eastover
Excavators, LLC, Utility Constructors, Inc., Brierfield Insurance Company, and the
Board of Directors of Eastover Property Owners Association, Inc. For the
following reasons, we dismiss this appeal as untimely.
The events giving rise to this case involve the creation and excavation of a
borrow pit on the Gator Golf Course at Eastover Country Club in New Orleans
East, which had been refurbished after Hurricane Katrina. On August 8, 2014, the
plaintiffs filed a petition for injunctive relief, and on then on March 30, 2015, they
filed a “Superseding Petition for Injunctive Relief, For Conservatory Writ of
Attachment, For Seizure of the Borrow Pit into Custodia Legis, For an Order that
All Net Funds Generated From Pit Excavation be Deposited to the registry of the
Court for the Assessment of Special Damages to Plaintiffs, for Judgment Against
All Defendants Responsible Pursuant to Civil Code Articles 667, 2315, 2322, and
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2324(A), and for Other Legal and Equitable Relief.” Active litigation before the
court continued up until August 12, 2019, when plaintiffs’ counsel filed a motion
to set trial/status conference, which was scheduled for September 5, 2019, but
never took place. On May 18, 2020, plaintiffs’ counsel sent a letter to his clients
informing them of his termination of representation.
On September 16, 2022, the defendants filed an ex parte motion to dismiss
on the basis of abandonment pursuant to La. C.C.P. art. 5611 because no party had
taken any “step” in the prosecution of this matter for over three years. The
plaintiffs enrolled new counsel and filed an opposition to the motion on October
14, 2022. Rather than issuing an ex parte judgment as required by La. C.C.P. art.
561, the district court set the matter for hearing. At the hearing on November 17,
2022, the district court heard the arguments of counsel and allowed for the
introduction of evidence. Following the November 17, 2022 hearing, the district
court entered a judgment granting the defendants’ ex parte motion to dismiss on
the grounds of abandonment. The judgment was signed, and the notice of signing
the judgment was mailed on November 17, 2022. On January 19, 2023, the
plaintiffs filed a motion for devolutive appeal. The defendants filed a motion to
dismiss the appeal as untimely on June 12, 2023.
1 La. C.C.P. art. 561was amended by Act 5 (H.B. 230) of the 2023 Regular Session of the
Louisiana Legislature, with an effective date of August 1, 2023. However, when the instant case
was before the district court and this appeal was taken, the version of La. C.C.P. art. 561
amended by Act 361 (H.B. 966) of the 2007 Regular Legislative Session, with an effective date
of July 9, 2007, was in effect. Accordingly, for purposes of this opinion, it will be the 2007
version of La. C.C.P. art. which is referenced in this opinion.
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“An action, except as provided in Subparagraph (2) of this Paragraph, 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, unless it is a succession proceeding[.]” La.
C.C.P. art. 561(A)(1). “This provision shall be operative without formal order, but,
on ex parte motion . . . [and] the trial court shall enter a formal order of dismissal
as of the date of its abandonment.” La. C.C.P. art. 561(A)(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.” La. C.C.P. art. 561(A)(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 [of a motion to
set aside a dismissal] may be taken only within sixty days of the date of the clerk’s
mailing of the order of denial.” La. C.C.P. art. 561(A)(5).
The dismissal of a case as abandoned is a final, appealable judgment. See
Yates v. Bailey, 34,274 (La. App. 2 Cir. 12/6/00), 774 So.2d 1103. As described
above, an appeal of an order of dismissal may only be taken within sixty days of
the date of the clerk’s mailing of the order of denial of a motion to set aside or
within sixty days of the date of the sheriff’s service of the order of dismissal. See
La. C.C.P. art. 561.
In the instant case, the defendants filed an ex parte motion to dismiss on the
grounds of abandonment pursuant to La. C.C.P. art. 561 in order to reflect what
occurred on August 12, 2022 (the last date on which a step in the prosecution or
defense of the case took place) by operation of law. Thereupon, the district court
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should have issued an order of dismissal on that date. See La. C.C.P. art.
561(A)(3). However, due to outstanding fees owed by the plaintiffs, the judgment
of dismissal was not signed by the district court. The plaintiffs filed an
“Opposition to the Motion to Dismiss” and attached exhibits to the motion. The
district court apparently treated the opposition as a motion to set aside under La.
C.C.P. art. 561(A)(4) and a contradictory hearing was held on November 17, 2022,
where the plaintiffs submitted evidence as to why they believed the order of
dismissal should not be granted. Following the hearing, the district court took the
matter under advisement, and then agreed with the defendants’ position that the
matter was abandoned as a matter of law. The district court also mailed the notice
of judgment and written reasons on November 17, 2022. The plaintiffs did not file
their notice of appeal until January 19, 2023.
As discussed above, a plaintiff only has sixty days to appeal “an order of
dismissal” after “service.” Likewise, a plaintiff only has sixty days to appeal the
denial of a “motion to set aside a dismissal” from the date of “mailing.”
Considering that the district court treated the plaintiffs’ opposition as a motion to
set aside, pursuant to the clear language of La. C.C.P. art. 561(A)(5), the plaintiffs
had sixty days from November 17, 2022 in which to take their appeal. Under
normal circumstances, January 16, 2023 would have been the sixtieth day, but
because Martin Luther King, Jr. Day, a legal holiday, fell on that date, the plaintiffs
had until January 17, 2023 to file their notice of appeal. This did not happen. The
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plaintiffs waited until January 19, 2023 to file their notice of appeal. Accordingly,
the plaintiffs’ appeal is untimely.
For the foregoing reasons, the defendants’ motion to dismiss appeal is
GRANTED and this appeal is DISMISSED.
APPEAL DISMISSED
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