Marcus Montgomery v. Ba Van Ta

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-110

MARCUS MONTGOMERY, ET AL.

VERSUS

BA VAN TA, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20031774
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

Kent Anthony Smith
Attorney at Law
2009 Comet Street
New Orleans, LA 70131
(504) 669-8109
Counsel for Plaintiffs/Appellants:
Marcus Montgomery
Cody Montgomery
Jareth Montgomery

Churita H. Hansell
Attorney at Law
2009 Comet Street
New Orleans, LA 70131
(504) 669-8109
Counsel for Plaintiffs/Appellants:
Marcus Montgomery
Cody Montgomery
Jareth Montgomery

Jennifer E. Michel
Catherine M. Landry
Preis & Roy
P.O. Drawer 94-C
Lafayette, LA 70509
(337) 237-6062
Counsel for Defendants/Appellees:
Ba Van Ta
The Miss Kim Anh

DECUIR, Judge.

The plaintiffs appeal a judgment of the trial court dismissing their personal

injury suit on the grounds of abandonment. For the reasons that follow, we affirm.

FACTS

On April 6, 2002, Marcus Montgomery, his son, Cody, and his brother, Jareth,

were allegedly injured while jumping onto the dock from Montgomery’s fishing

vessel as it was struck and overturned by the Miss Kim Anh, a shrimping vessel

owned by Ba Van Ta. Prior to filing suit, the plaintiffs settled their property damage

claims after negotiations with Catherine Landry, counsel for the defendant.

On April 7, 2003, plaintiffs filed suit against the defendant. Service of process

was attempted at the offices of Catherine Landry and at the offices of Shuman

Consulting Services, an agency investigating the accident on behalf of the defendant.

Both of these parties declined service on the grounds that they were not the

appropriate agent for service of process. To date, service has not been effected. Prior

to defendant’s motion to dismiss for abandonment, no party had taken any steps in the

prosecution or defense of this action. On April 12, 2006, the defendant filed a motion

to dismiss on the grounds of abandonment. The motion was granted by the trial court.

Plaintiffs lodged this appeal.

DISCUSSION

Plaintiffs contend on appeal that the trial court abused its discretion in granting

the defendant’s motion to dismiss for abandonment. We disagree.

This court recently discussed the issue of abandonment in Johnson v. Calcasieu

Parish Sheriff’s Department., 06-1179 (La.App. 3 Cir. 2/7/07), 951 So.2d 496, ___

(footnotes omitted) and noted:

Louisiana Code of Civil Procedure Article 561(A)(1) provides in
pertinent part that “[a]n 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.” The party seeking dismissal on the basis of abandonment

may file an ex parte motion “by affidavit which provides that no step has
been taken for a period of three years in the prosecution or defense of
the action.” La.Code Civ.P. art. 561(A)(2). In that event, “the trial court
shall enter a formal order of dismissal as of the date of its
abandonment.” Id. (emphasis added). Thereafter, the party against
whom the ex parte judgment has been rendered may, “within thirty days
of the date of the sheriff’s service of the order of dismissal,” file a
motion to set aside the dismissal order. La.Code Civ.P. art. 561(A)(3).

Whether the plaintiffs’ suits were abandoned is a question of law.
Olavarrieta v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d
566, writ denied, 05-1557 (La. 12/16/05), 917 So.2d 1118. Thus, when
an appellate court reviews a question of law the standard of review is
simply whether the lower court’s interpretive decision is correct.
Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d
412, writ denied, 05-2444 (La. 3/24/06), 925 So.2d 1231.

In attempting to avoid dismissal, counsel for the plaintiffs argued that service

of process was not made because the defendant had not designated a representative

for service, and the attorney and investigating agency being utilized by the defendant

refused service. The trial court properly found that, until enrolled as attorney of

record, service on the attorney was not proper and the plaintiffs’ remedy was to have

a curator appointed for service of process if they were unable to locate the defendant.

La.Code Civ.P. art. 5091.

Plaintiffs next argued that the case should not be dismissed because of the

provisions of La.R.S. 9:5821 et seq. suspending and extending certain legal deadlines

in the wake of Hurricanes Katrina and Rita. The trial court properly found these

statutes inapplicable because on their face they apply only to time periods which

would have lapsed during the period from August 26, 2005 to January 3, 2006.

La.R.S. 9:5822. The time period for abandonment in this case did not accrue until

April 7, 2006.

Finally, counsel for plaintiffs argue that the case should not be dismissed

because her office was damaged during the hurricanes destroying many files, and she

was evacuated to Houston for three months. The trial court correctly found that the

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case had not been pursued for nearly two and one-half years prior to the storms.

Moreover, no evidence was introduced suggesting that the plaintiffs were prevented

by circumstances beyond their control from proceeding or from seeking other counsel

in her absence. Inaction by a plaintiff’s attorney is not an exception to the rule of

abandonment. Pecot v. Calcasieu-Cameron Hosp. Serv. Dist., 03-1102 (La.App. 3

Cir. 2/18/04), 867 So.2d 56, writ denied, 04-0719 (La. 5/7/04), 872 So.2d 1085.

Having reviewed the record and applicable law, we find no error in the trial

court’s decision to grant the motion for dismissal on the grounds of abandonment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to plaintiffs-appellants.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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