John Lee Davis, Et Ux. v. Kansas City Southern Railway Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1546

JOHN LEE DAVIS, ET UX
VERSUS
KANSAS CITY SOUTHERN RAILWAY COMPANY

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 13,242
HONORABLE ROBERT JACKSON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.

APPEAL DISMISSED. APPELLANT IS PERMITTED TO
FILE AN APPLICATION FOR SUPERVISORY WRITS.

Arthur R. Carmondy, Jr.
Post Office Box 1707
Shreveport, LA 71166
COUNSEL FOR DEFENDANT/APPELLANT:
Kansas City Railway Company

Shelly D. Dick
Forrester & Dick
4981 Bluebonnet Boulevard
Baton Rouge, LA 70809
COUNSEL FOR DEFENDANT/APPELLANT:
Kansas City Railway Co.

Dorwan G. Vizzier
Post Office Box 1311
Alexandria, LA 71309
(318) 487-4589
COUNSEL FOR PLAINTIFFS/APPELLEES:
John Lee Davis, et ux

AMY, Judge.

On December 11, 2007, this court issued a rule for the defendant-appellant,

Kansas City Southern Railway Company (hereinafter “KCS”), to show cause, by brief

only, why the instant appeal should not be dismissed as having been taken from a

non-appealable, interlocutory ruling. For the reasons assigned below, we dismiss the

appeal.

The instant case is a suit for personal injuries. KCS filed a Motion for

Abandonment on December 22, 2006. On January 3, 2007, the suit was dismissed by

the trial court for want of prosecution. Plaintiffs subsequently filed a Motion to Set

Aside Order of Dismissal for Abandonment which the trial court granted orally on

February 26, 2007. KCS filed a notice of intent to apply for writ of review on

February 28, 2007. Judgment was signed on March 14, 2007, and notice of the

signing of the judgment was mailed on March 15, 2007. Despite initially filing a

notice of intent to seek supervisory review, KCS filed a Petition for Appeal on April

16, 2007. The record in the instant appeal was lodged December 10, 2007.

The judgment appealed, which granted plaintiffs’ Motion to Set Aside Order

of Dismissal for Abandonment, does not decide the merits of this case and is

interlocutory. La.Code Civ.P. art. 1841. Therefore, we hereby dismiss the instant

appeal at KCS’s cost. KCS is hereby permitted to file a proper application for writs

in compliance with Uniform Rules—Courts of Appeal, Rule 4, no later than thirty

days from date of issuance of this opinion. KCS is not required to file a notice of

intent to seek writs nor obtain an order setting a return date pursuant to Uniform

Rules—Courts of Appeal, Rule 4–3, as we hereby construe the motion for appeal as

a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN
APPLICATION FOR SUPERVISORY WRITS.