Stephen McCready Versus Douglas J. Cook

STEPHEN MCCREADY NO. 24-CA-391

VERSUS FIFTH CIRCUIT

DOUGLAS J. COOK COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 749-161, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

January 29, 2025

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Timothy S. Marcel

AFFIRMED
JJM
SMC
TSM

COUNSEL FOR PLAINTIFF/APPELLANT,
STEPHEN MCCREADY
Adrian A. D'Arcy
Andrew G. Vicknair
Margaret N. Davis

COUNSEL FOR DEFENDANT/APPELLEE,
DOUGLAS J. COOK
Stephen O. Scandurro

MOLAISON, J.

After this Court previously granted a writ application that reversed the trial

court’s ruling that set aside a judgment of abandonment and reinstated the court’s

original judgment that dismissed the suit without prejudice, the appellant filed the

instant appeal that challenged the judgment of dismissal. For the following

reasons, we affirm the trial court’s reinstated judgment.

PROCEDURAL HISTORY

McCready v. Cook, 24-78 (La. App. 5 Cir. 5/31/24), 391 So.3d 1072, 1073-

74, details the procedural history of this case. In relevant summary, the appellant,

Stephen McCready (“McCready”), filed suit against appellee Douglas Cook

(“Cook”) on April 28, 2015, for “contribution” to a promissory note payoff related

to the development of a fast-food restaurant. On September 7, 2023, Cook filed an

Ex Parte Motion to Dismiss for Abandonment under La. C.C.P. art. 561. The court

granted Cook’s ex parte motion on October 17, 2023, dismissing the suit without

prejudice. On November 8, 2023, McCready timely filed a Motion to Set Aside

Dismissal under Article 561(A)(3), which the trial court granted on October 17,

2023. Cook sought supervisory review of that ruling, which this Court granted.

We reinstated the trial court’s original judgment that dismissed McCready’s

lawsuit without prejudice. McCready now seeks a review of the reinstated

judgment. The record does not show any additional trial court proceedings after

remand.

The issues on appeal

The prior writ application before this Court addressed whether the trial court

erred in granting McCready’s Motion to Set Aside Dismissal. In granting the writ,

the panel opined, “We conclude the court erred in relying on hearsay,

unauthenticated, and insufficient evidence to set aside the judgment which

24-CA-391 1

previously had dismissed the suit based on abandonment.” McCready v. Cook,

supra, at 1073. On appeal, McCready currently assigns the following errors:

1. Defendant-Appellee Cook did not file a writ application in
this matter, and this Court should have denied the application filed by
a non-party and therefore, the District Court’s ruling on the Motion to
Set Aside Dismissal filed by Plaintiff-Appellant McCready should
have been left intact.
2. This case was not abandoned because McCready took a step
recognized by La. C.C.P. art. 561 within three years of the alleged
abandonment; the Notice of Deposition that interrupted abandonment
was issued on June 17, 2020 and was properly served to Cook’s
counsel.
3. The affidavit of McCready’s prior counsel regarding that
Notice of Deposition was properly admitted and considered by the
trial court, which can take judicial notice of its own record.
4. La. C.C.P. art. 561 is ambiguous and should be construed in
favor of the Appellant, McCready.

Allegations of a non-party filing the prior writ application

We first address the appellant’s claim that our prior disposition in this

matter, McCready v. Cook, supra, is null because a non-party, Douglas Cook

Enterprises, LLC, sought review of the trial court’s December 18, 2023 ruling.

The appellant previously raised this claim in opposition to the related writ

application. The record shows that Douglas Cook personally filed the notice of

intent for that writ at the district court. However, the filing before this Court

indicated that the relator was “Douglas Cook Enterprises, LLC.” In response to

this Court, the respondent/appellee clarified that the cover and signature pages to

the writ application “inadvertently refer to the Applicant’s company.” The panel

considering the writ application found this to be a sufficient explanation for the

discrepancy. Our disposition references Mr. Cook personally, both in the caption

of the case and throughout this Court’s disposition itself. Also, the appellant did

not seek the Supreme Court’s review of the typographical issue after this Court

rendered its disposition. Accordingly, we find this assignment to be without merit.

24-CA-391 2

Assignments of error two and three

As the respondent in McCready v. Cook, supra, McCready argued, in his

opposition brief:

A. The Notice of Deposition Issued on June 17, 2020 Was
Properly Served to Cook’s Counsel and Interrupted Abandonment.

B. The Affidavit of McCready’s Prior Counsel Was Properly
Admitted into Evidence and Considered by the Trial Court.

The panel on the prior writ application directly addressed the issues of whether the

notice of deposition was served correctly on Cook’s counsel and if the affidavit of

his previous counsel was properly admitted at the hearing on his motion to set

aside the judgment:

The record reflects that Cook’s counsel objected to the
admissibility of McCready’s former counsel’s affidavit, which
objection was overruled. While Article 561(A)(2) specifically allows
an affidavit to be used in the ex parte procedure concerning a motion
to dismiss a suit based on abandonment, paragraph (A)(3), which
concerns a motion to set aside the dismissal, does not contain such an
authorization. Further, no testimony was presented at the hearing; the
only evidence admitted at the hearing, over Cook’s objection, was
McCready’s four exhibits attached to his Motion to Set Aside
Dismissal. Accordingly, we conclude that McCready’s current
counsel’s assertions at the hearing that the deposition notice was
served upon defense counsel by McCready’s former counsel, via
email, are uncorroborated and based on inadmissible hearsay
evidence. Therefore, we conclude that McCready failed to present
sufficient competent evidence to support his Motion to Set Aside the
original judgment of dismissal based on abandonment.

McCready v. Cook, at 1075. Thus, the appellant’s second and third assignments of

error are repetitive.

Law of the case

In Normand v. Mr. Mudbug, Inc., 19-272 (La. App. 5 Cir. 12/30/19), 286

So.3d 1260, 1265, we observed:

Generally, when an appellate court considers arguments made
in supervisory writ applications or responses to such applications, the
court’s disposition on the issue considered usually becomes the law of
the case, foreclosing re-litigation of that issue either at the district
court on remand or in the appellate court on a later appeal. Jeff
Mercer, L.L.C. v. State, Dep’t of Transp. & Dev., 14-1752 (La. App. 1

24-CA-391 3

Cir. 6/5/15), 174 So.3d 1180, 1185, writ denied, 15-1624 (La.
10/30/15), 179 So.3d 618.

The reasons for the law of the case doctrine are to avoid relitigation of the same

issue, to promote consistency of results in the same litigation, and to promote

efficiency and fairness to both parties by affording a single opportunity for the

argument and decision of the matter at issue. Shaffer v. Stewart Const. Co., Inc.,

03-971 (La. App. 5 Cir. 1/13/04), 865 So.2d 213, writ denied, 04-420 (La. 4/2/04),

869 So.2d 886, citing Jones v. McDonald’s Corp., 97-2287 (La. App. 1 Cir.

11/6/98), 723 So.2d 492, 494. However, reconsidering a prior ruling is warranted

when, in light of a subsequent trial record, it is apparent that the determination was

patently erroneous and produced unjust results. State v. Falcon, 13-849 (La. App.

5 Cir. 3/12/14), 138 So.3d 79, 87-88, writ denied, 14-769 (La. 11/14/14), 152

So.3d 877.

After reviewing the previous disposition in this case and considering that no

further proceedings occurred following remand, we find no basis for disturbing our

prior ruling that the evidence introduced by McCready at the Motion to Set Aside

the original judgment was inadmissible and insufficient.

Assignment of error four

McCready argues in his final assignment of error that La. C.C.P. art. 561 is

ambiguous and should be construed in his favor. A record review indicates that

this argument is raised for the first time on appeal. Appellate courts generally will

not consider issues raised for the first time on appeal. Uniform Rule—Courts of

Appeal, Rule 1-3. Considering this long-standing rule of law, we pretermit

McCready’s fourth assignment of error.

Conclusion and decree

In this Court’s previous ruling on the issues raised by McCready in the

instant appeal, the writ panel thoroughly and carefully considered the merits of his

24-CA-391 4

claims. Without any new facts or additional case law suggesting that this Court’s

previous determination was patently erroneous, we decline to disturb that ruling.

We find no merit in McCready’s argument that the prior writ application was void

because it was sought by a non-party to the litigation; an explanation for the

discrepancy in the pleadings is clear from the record. Finally, we decline to

address an assignment of error that raises an issue not first presented to the district

court.

For the reasons stated, the reinstated judgment of October 17, 2023,

dismissing the suit between the parties without prejudice, is affirmed.

AFFIRMED

24-CA-391 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-391
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
ADRIAN A. D'ARCY (APPELLANT) ANDREW G. VICKNAIR (APPELLANT) MARGARET N. DAVIS (APPELLANT)
STEPHEN O. SCANDURRO (APPELLEE) TIMOTHY D. SCANDURRO (APPELLEE)

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