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.

2

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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