Hancock Bank of Louisiana (formerly First National Bank of Denham Springs) v. Leonard A. Robinson and Peggy M. Hairston Robinson

n DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0791

HANCOCK BANK OF LOUISIANA (formerly First National Bank of Denham
Springs)

VERSUS

LEONARD A. ROBINSON AND PEGGY M. HAIRSTON ROBINSON

Judgment rendered: MAR 1 12021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C510034, Sec. 25

The Honorable Wilson E. Fields, Judge Presiding

Leonard A. Robinson In Proper Person/ Appellants
Peggy M. Hairston Robinson
Zachary, Louisiana

Jill Craft Attorneys for Defendant/Appellee
W. Brett Conrad, Jr. W. George Bayhi
Baton Rouge, Louisiana

Jonathan G. Wilbourn Attorneys for Defendant/Appellee
Candace B. Ford Fidelity National Title Insurance
Baton Rouge, Louisiana Company

E. Clark Gaudin Attorney for Defendant/Appellee
Baton Rouge, Louisiana Hancock Bank of Louisiana

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

Appellants, Leonard A. Robinson and Peggy M. Hairston Robinson, appeal

the trial court' s judgment dismissing their case as abandoned. For the reasons that

follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In 2003, Hancock Bank of Louisiana filed a petition for executory process

against the appellants seeking to foreclose, via executory process, on certain

immovable property located in East Baton Rouge Parish. On November 26, 2003,

the foreclosure was completed and the property was sold to Millwood One, LLC at

a sheriff' s sale.
Thereafter, nothing was filed in the record after 2003 until July 30,

2019, when appellants and Metropolitan Mutual Mortgages, Inc. ( MMM) filed a

Petition to Declare Judgments, Writs, and Petition for Eviction Absolute Nullities

Pursuant to La. R. S. 2002 and Damages." Therein they named the following

defendants: 1) E. Clark Gaudin and G. Allen Welch, attorneys representing

Hancock Bank; 2) Barbara Lange, recovery adjuster for Hancock Bank; 3) W.

George Bayhi and Kathryn Brown, attorneys for Millwood One, LLC; and 4)

Fidelity National Title Insurance Company.' Appellants and MMM alleged that

MMM and the United States Small Business Administration were indispensable

parties to the foreclosure proceeding, and were intentionally omitted from the

foreclosure proceedings. Therefore, they prayed, among other things, " for a

Judgment of Nullity in suit number 510034[,]" and that the " original foreclosure

suit that the Writ of Possession issued on 510034 day be recognized as a wrongful

seizure ( sic)."

1 This defendant was originally sued as " First National Insurance Company by merger with
Lawyers Title of Baton Rouge." However, it filed an " Ex Parte Motion and Judgment for
Dismissal for Abandonment" as " Fidelity National Title Insurance Company." Therefore, we

will refer to this defendant by the name in which it filed the pleading.
2

The various defendants filed responsive pleadings, with Mr. Bayhi raising

the objections of prescription, res judicata, and no cause of action, and

alternatively, the objections of vagueness, ambiguity, and lack of jurisdiction.

Fidelity National Title Insurance Company filed an " Ex Parte Motion and

Judgment of Dismissal for Abandonment" arguing that plaintiffs' action had been

abandoned given that nothing appeared in the suit record between 2003 and 2019.

On November 25, 2019, the trial court signed a judgment that dismissed

appellants and NI MIMs' claims " in their entirety as being abandoned under Article

561 of Louisiana' s Code of Civil Procedure, such dismissal to be without

prejudice[.]" Appellants filed the instant appeal to seek review of the trial court' s

ruling dismissing their suit as abandoned. The trial court signed an order of appeal

on January 10, 2020. 2 Thereafter, on January 22, 2020, the trial court signed

another judgment that granted " the Exceptions filed by defendant George Bayhi"

and dismissed appellants' action against Mr. Bayhi with prejudice. Mr. Bayhi filed

a motion to dismiss plaintiffs appeal for lack of jurisdiction. Mr. Bayhi argues that

this Court does not have jurisdiction over the January 22, 2020 judgment because it

was signed after the January 10, 2020 order granting appellants' appeal. Due to

our holding in this matter, we pretermit discussion of Mr. Bayhi' s motion to

dismiss.

DISCUSSION

Louisiana Code of Civil Procedure article 561 governs abandonment of

cases, providing, in pertinent part:

2 As noted in Fidelity National Title Insurance Company' s brief, appellants' motion for appeal
references a " November 19, 2019" judgment, and the order of appeal is silent as to which
judgment is being appealed. Given the foregoing, Fidelity National Title Insurance Company
contends that this Court has no jurisdiction to entertain the merits of the appeal because the
incorrect date of the judgment is listed on appellants' notice of appeal. We find that although
appellants' devolutive appeal references the incorrect date of the final judgment, this Court will
consider the merits of this appeal in light of appellants' status as self r-epresented litigants. See
Montecino v. Louisiana Department of Public Safety and Corrections, 2017- 0735 ( La. App.
1 Cir. 12/ 21/ 17), 240 So. 3d 229, 230; Putman v. Quality Distribution, Inc., 2011- 0306 ( La.
App. 1 Cir. 9/ 30/ 11), 77 So. 3d 318, 320.
3

A. ( 1) 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[.]

3) This provision shall be operative without formal order, but, on
ex parte motion of any party or other interested person by affidavit
which provides 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.

4)
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).

5) 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.

Louisiana Code of Civil Procedure article 561 provides the exclusive

procedure for a judgment dismissing an action on the basis of abandonment. See

In re Succession of Roberts, 2015- 356 ( La. App. 3 Cir. 11/ 4/ 15), 178 So. 3d 261,

263, writ denied, 2015- 2227 ( La. 1/ 25/ 16), 185 So. 3d 753. First, the provisions for

abandonment of an action becomes operative without a formal order. La. C. C. P.

art. 561( A)(3). It occurs automatically on the passing of three years without a step

being taken by either party, and it is effective without a court order. McNealy v.

Englade, 2019- 0573 ( La. App. 1 Cir. 2/ 21/ 20), 298 So. 3d 182, 186. Second, on

the ex parte motion to dismiss on the basis of abandonment of any party or other

V

interested person, with an affidavit,' " 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). ( Emphasis

added.) It is improper for the trial court to set a motion to dismiss on the basis of

abandonment instead of signing an order of dismissal ex parte as required by La.
C. C. P. art. 561( A)(3). See Id. at 185. Third, the plaintiff may file a motion to set

aside the dismissal within thirty days of the date of the sheriff's service of the order

of dismissal. La. C. C. P. art. 561( A)(4). See Id. at 185. The hearing on the motion

to set aside dismissal is a contradictory hearing wherein the plaintiff must produce

evidence as to why the order of dismissal shall not be set aside. See Woodward v.

Lumbermens Mut. Cas. Co., 2000- 0399 ( La. App. 1 Cir. 3/ 28/ 01), 808 So. 2d

554, 556. Alternatively, the plaintiff may appeal the order of dismissal within

sixty days of the date of the sheriff' s service of the order of dismissal. See La.

C. C.P. art. 561( A)(5). If an appeal is taken from the order of dismissal, there is a

contradictory hearing, and on appeal, the appellate court shall only consider the

evidence in the record since a contradictory hearing was not requested wherein

evidence could have been introduced. The failure to file a " motion to set aside

dismissal" and introduce evidence is particularly relevant if the interruption of the

abandonment period is dependent upon formal discovery which was not filed in the

record. See La. C. C.P. art. 561( B). 4

In this case, appellants did not file an ex parte motion to set aside the

November 25, 2019 trial court judgment of dismissal for abandonment pursuant to

La. C. C. P. art. 561( A)(4). See Bourg v. Entergy Louisiana, LLC, 2012- 829 ( La.

App. 5 Cir. 4/ 10/ 13), 115 So. 3d 45, 48, writ denied, 2013- 1064 ( La. 6/ 21/ 13), 118

3
Fidelity National Title Insurance Company submitted with its motion and order an affidavit of
its counsel of record attesting that no step in the prosecution or defense of the action had taken
place during the three year abandonment period.

4 Since the formal discovery may not be included in the record, the trial court and appellate court
cannot consider such evidence if it is not admitted into evidence at the motion to set aside
dismissal or if that motion is not filed. See Clark v. State Farm Mut. Auto. Ins. Co., 2000-
3010 ( La. 5/ 15/ 01), 785 So. 2d 779, 784.
5

So. 3d 421. Instead, appellants devolutively appealed the judgment of dismissal

pursuant to La. C. C. P. art. 561( A)(5). The record does not reflect service of the

November 25, 2019 judgment of dismissal on appellants pursuant to La. C. C. P.

arts. 1313 or 1314. However, the absence of proof of service from the record does

not affect the timeliness of appellants' appeal. See Payton v. Lake Lawn Park_,

Inc., 2015- 0274 ( La. App. 4 Cir. 11/ 10/ 15), 179 So. 3d 809, 811 n. 6. Based upon

the record before us, the delay never started in this case for a motion for new trial

or an appeal of the November 25, 2019 judgment since the record does not contain

any service information. Therefore, the appellants' devolutive appeal was timely

filed. See Lewis v. Southern University and Agricultural and Mechanical

College, 2013- 2213 ( La. App. 1 Cir. 12/ 30/ 14), 2014 WL 7455047, at * 1 n.2

unpublished), writ denied, 2015- 0495 ( La. 5/ 15/ 15), 170 So. 3d 968; see also

Wilkerson v. Buras, 2013- 1328 ( La. App. 1 Cir. 8/ 12/ 14), 152 So. 3d 969, 976.

Louisiana Code of Civil Procedure article 561 imposes three requirements

on a plaintiff to avoid having a case dismissed due to abandonment. First, plaintiff

must take a " step" towards prosecution of his lawsuit. A " step" is defined as

taking formal action before the court that is intended to hasten the suit toward

judgment. Clark, 785 So. 2d at 784. Second, the step must be taken in the

proceeding and, with the exception of formal discovery, must appear in the record

of the suit. Id. Third, the step must be taken within the three- year period

prescribed by Article 561. Id. " When the parties take no steps in the prosecution

or defense of their claims during the period set forth in [ La. C. C.P. art.] 561, "` the

logical inference is that the party intends to abandon the claim and the law gives

effect to this inference'." Id. at 786- 7, oting Young v. Laborde, 576 So.2d 551,
u

552 ( La. App. 4 Cir. 1991).

9

Whether a step in the prosecution or defense of a case was taken in the trial

court within a period of three years is a question of fact subject to a manifest error

analysis on appeal. Wilkerson, 152 So. 3d at 974. On the other hand, whether a

particular act, if proven, qualifies as a step in furtherance of the action and thereby

precludes abandonment is a question of law that we review by simply determining

whether the trial court' s interpretative decision is correct. Id., citing Hinds v.

Global Intern. Marine, Inc., 2010- 1452 ( La. App. 1 Cir. 2/ 11/ 11), 57 So. 3d 1181,

1183.

From our review of the record, it is clear that after the foreclosure was

completed in 2003, no action has been taken in this matter by any party until 2019

when appellants and MMM filed a " Petition to Declare Judgments, Writs, and

Petition for Eviction Absolute Nullities Pursuant to La. R.S. 2002 and Damages"

against the defendants.5 This is clearly beyond the three year abandonment period

mandated by La. C. C. P. art. 561. Thus, we find that the trial court properly

dismissed appellants' claims as abandoned.

We note that the November 25, 2019 judgment dismissed appellants' claims

without prejudice. Louisiana Code of Civil Procedure article 1673 states, in

pertinent part, that "... [ a] judgment of dismissal without prejudice shall not

constitute a bar to another suit on the same cause of action." The Official Revision

Comment notes that "[ a] case dismissed without prejudice can be reinstituted; the

judgment is neither final nor definitive." See La. C. C. P. 1673, comment 1960.

Thus, the trial court' s ruling in this case may not preclude appellants from refiling

a petition for absolute nullities and damages against defendants if the appellants'

claims are not expired, prescribed, or perempted. See Rose v. Computer Sciences

5 We note that a petition for executory process uses executory procedure and a petition for
declaratory judgment and damages are ordinary procedure. See La. C. C. P. art. 851. Those
procedures may not be cumulated in the same action since they employ different procedures.
See La. C. C. P. art. 463. We pretermit any discussion of the improper cumulation since
appellants' claims are abandoned.

7

Corp., 2015- 813, 2017 WL 2911580, at * 4 ( E.D. La. July 2017); NorthShore

Regional Medical Center, L.L.C. v. Dill, 2011- 2271 ( La. App. 1 Cir. 6/ 8/ 12), 94

So. 3d 155, 165 n.7, writ denied, 2012- 1494 ( La. 10/ 8/ 12), 98 So. 3d 862.

Accordingly, we find no error in the trial court' s November 25, 2019

judgment granting the " Ex Parte Motion and Judgment of Dismissal for

Abandonment" dismissing appellants' claims against defendants without prejudice.

See Wells v. Banks, 2018- 1612 ( La. App. 1 Cir. 6/ 3/ 19), So. 3d , 2019

WL 2335860, at * 2.

CONCLUSION

For the foregoing reasons, we affirm the November 25, 2019 judgment of

the trial court. All costs of this appeal are assessed to appellants, Leonard A.

Robinson and Peggy M. Hairston Robinson.

AFFIRMED.