Barry Giglio and Marla Giglio v. State of Louisiana, Department Child and Family Services

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-405

BARRY GIGLIO AND MARLA GIGLIO

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF CHILD AND FAMILY
SERVICES, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF
PUBLIC SAFETY, DIVISION OF STATE POLICE, MINDY VENABLE,
DWAYNE VENABLE, AND PAM MCGEE

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ON SUPERVISORY WRITS FROM THE
27TH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 12-C-2445
HONORABLE GERARD CASWELL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Shannon J. Gremillion,
Judges.

MOTIONS DENIED. WRIT GRANTED AND MADE PEREMPTORY.

Gregory K. Moroux, Sr.
Special Assistant Attorney General
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502
Telephone: (337) 237-2660
Facsimile: (337) 266-1232
Counsel for Applicants:
State of Louisiana, Department of Public Safety and Corrections

Patrick M. Wartelle
Special Assistant Attorney General
Leake & Andersson LLP
Post Office Drawer Z
Lafayette, LA 70501
Telephone : (337) 233-7430
Facsimile: (337) 233-8403
Counsel for Applicants:
Dwayne and Mindy Venable

Barry Giglio
2774 Chicot Park Rd.
Ville Platte, LA 70876
In Proper Person

Marla Giglio
213 Udstad St.
Port Sulphur, LA 70083
In Proper Person

PICKETT, Judge.

The defendants-relators, State of Louisiana, Department of Public Safety and

Corrections (DPSC), and Mindy and Dwayne Venable (the Venables), seek

supervisory writ from the judgment of the trial court, which denied their motions to

dismiss for abandonment.

STATEMENT OF THE CASE

On May 17, 2013, the plaintiffs, Barry and Marla Giglio, filed suit against

DPSC and the Venables for damages plaintiffs allegedly sustained as a result of

their wrongful arrest and investigation for child molestation arising out of the

defendants’ “malicious, reckless, and false accusations.” DPSC and the Venables

filed their motions for dismissal based on abandonment pursuant to La.Code Civ.P.

art. 561 “after the lapse of three years with no activity to advance the case toward

judgment since October 31, 2013, when a Protective Order was filed in the

record.” Reviewing the record, the trial court found a letter from the Giglios’

counsel to the clerk of court requesting the issuance of a subpoena duces tecum to

the Evangeline Parish Sheriff for records of the plaintiffs’ arrests, stamped with a

clerk’s filing date of July 22, 2016. The trial court then ordered the parties to

appear for a hearing to determine whether the letter would interrupt the running of

abandonment. During the hearing, it was learned that the subpoena was issued, but

the trial court found it was “safe to assume” that DPSC and the Venables were not

served with notice of the subpoena. In fact, the defendants’ counsel did not even

know plaintiffs’ counsel had enrolled or requested the subpoena until the trial

court’s order to appear prompted an investigation of the physical record. While the

defendants’ counsel argued the subpoena was formal discovery and had to be

served on opposing counsel to interrupt the tolling of the abandonment period

under La.Code Civ.P. art. 561(B), plaintiffs’ counsel argued the subpoena issued to

a third party was not discovery and constituted a step in furtherance of the

litigation. After hearing arguments from both sides, the trial court ruled from the

bench:

Here’s my dilemma, there was a request, there was a[n] actual
issuance of the subpoena by this clerk’s office, all of which was in the
record. I am perplexed as to whether that is sufficient to interrupt.. . I
am somewhat concerned that, at the time of the filing of the Motion
for Abandonment, the record did contain both a request for a
subpoena, as well as an actual issuance of the subpoena by this clerk’s
office. I am also convinced that defense counsel did not receive a
copy of that. Whether one was sent or not, I don’t have proof of, but I
do have that they tell me they didn’t receive it. I believe that they
didn’t receive it. However, because I think it’s a question of novelty
for me, and it’s a close question, as I said in the beginning, I don’t
grant an abandonment if I have any doubt whatsoever. Because I do
have doubt, I’m going to deny the abandonment, Request for
Abandonment.

The trial court stated for the record that its “ruling is based upon the assumption
that had [the defendants’ counsel] testified, that they would have testified that they
never received a copy of the subpoena request by Mr. Richard.” DPSC and the
Venables now seek review of the trial court’s ruling.1
DISCUSSION
“The proper procedural vehicle to contest an interlocutory judgment that
does not cause irreparable harm is an application for supervisory writs. See La.
C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.
3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),
“Irreparable injury continues to be an important (but not exclusive) ingredient in an
application for supervisory writs.” (Citation omitted.) “A court of appeal has
plenary power to exercise supervisory jurisdiction over trial courts and may do so
at any time, according to the discretion of the court.” Herlitz Const. Co., Inc. v.
Hotel Inv’rs of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). When the

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There is no formal judgment attached to this application. At the hearing, the trial court tasked
plaintiffs with preparing a judgment. As of filing of this application, no judgment has been
proposed, circulated, or submitted.

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trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and
there is no dispute of fact to be resolved, judicial efficiency and fundamental
fairness to the litigants dictate that the merits of the application for supervisory
writs should be decided in an attempt to avoid the waste of time and expense of a
possibly useless future trial on the merits. Id.
Louisiana Code of Civil Procedure Article 561 sets forth the rules governing

abandonment, providing (emphasis added):

A. (1) 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,
....

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.

Abandonment occurs automatically upon the passing of three years without a step

being taken by either party and is effective without court order. La.Code Civ.P. art.

561(A)(3). In this context, a “step” has long been defined as taking formal action

before the court, which is intended to hasten the suit toward judgment, or the

taking of a deposition with or without formal notice. Clark v. State Farm Mut.

Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784. To preserve their

suit, plaintiffs must, therefore, met three requirements: (1) plaintiffs must take

some “step” towards prosecution of their lawsuit; (2) the step must be taken in the

proceeding 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 from the last step taken by either party. James, 813 So.2d 335. Because

abandonment is not meant to dismiss actions on mere technicalities, but to dismiss

actions which in fact clearly have been abandoned, our courts liberally construe

Article 561 in favor of maintaining a plaintiff’s suit. Clark, 785 So.2d 779.

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Our Code of Civil Procedure allows a party to request by letter the issuance

of a subpoena duces tecum on non-parties. While the purpose of La.Code Civ.P.

art. 1354 is to compel production of designated documents and things in trials or

hearings, La.Code Civ.P. art. 1463 regulates pretrial discovery of documents and

things. Relevant herein, La.Code Civ.P. art. 1463(B) provides (emphasis added):

B. In addition, a party may have a subpoena duces tecum served
on a person not a party directing that person to produce documents . . .
. A reasonable notice of the intended inspection, specifying the date,
time, and place shall be served on all other parties.

The first circuit, in Paternostro v. Falgoust, 03-2214, pp. 6-7 (La.App. 1 Cir.

9/17/04), 897 So.2d 19, 23, writ denied, 04-2524 (La. 12/17/04), 888 So.2d 870,

interpreted this provision in the context of abandonment, holding:

According to the plain language of La. C.C.P. art. 1463,
requests for production of documents may be directed to non-parties.
However, the exception to the formal action requirement, found in La.
C.C.P. art. 561(B), only applies to formal discovery that is authorized
by the Code and served on all parties. See Clark, 00-3010, p. 6 n. 6,
785 So.2d at 784 n. 6. This requirement of service is in keeping with
the concept of notice, which the supreme court recently addressed as
follows: The rule requiring a party’s action to be on the record is
designed to protect a defendant. The rule is intended to ensure notice
to the defendant of actions taken that interrupt abandonment. Clark,
00-3010, at p. 17, 785 So.2d at 790. Otherwise, actions interrupting
abandonment could occur without opposing parties formally learning
of them for months or years, to their possible prejudice. Clark, 00-
3010 at p. 17, 785 So.2d at 790.

Therefore, we find that in order for request for production of
documents to a non-party to be considered a step in the prosecution of
a case, it must be served on all parties. In the instant action, plaintiff
did not serve Dr. Falgoust with notice as required by La. C.C.P. art.
561(B) and did not file his requests for production of documents to
non-parties into the record of the suit. Therefore, we find that plaintiff
failed to establish that his requests for production of documents
directed to non-parties qualified as steps in the prosecution of his suit.

DPSC and the Venables assert that the trial court erred in (1) denying their

motions to dismiss, (2) considering the plaintiffs’ arguments after they failed to file

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any briefs on the issues, and (3) failing to consider that the plaintiffs have the

burden of proof to show that a step was taken in the prosecution. Ultimately, the

defendants’ position rests on their submission that the last step taken in the case

toward prosecution sufficient to interrupt the running of the three-year

abandonment period occurred on October 31, 2013, when the trial court entered the

protective order. Under the terms of Article 561(B), they argue that the letter

requesting a subpoena duces tecum cannot be deemed a step in the prosecution,

because notice of same was not “served on all the parties, whether or not filed of

record.” Citing Mosely v. Missouri Pacific R.R. Co., 36,907 (La.App. 2 Cir.

3/5/03), 839 So.2d 1218, writ denied, 03-989 (La. 5/30/03), 845 So.2d 1055

(holding notice of informal discovery must be served on opposing counsel to

constitute a step in the prosecution). The defendants even note that, to date, they

have received nothing from plaintiffs’ counsel and that there is no indication in the

record that the subpoena was issued, served, satisfied, or returned. They are

likewise critical of the manner in which the plaintiffs’ counsel requested the

subpoena, as no notice of deposition under La.Code Civ.P. art. 1421 and 1438 were

shown with the letter.

In opposition, plaintiffs assert the filing of the letter in the record was a step

in the prosecution, as counsel had no intention other than proceeding to trial.

While discovery is specifically mentioned in Article 561, the use of the court’s

subpoena powers to mandate a third party’s production of records is not.

Regardless, they claim it is still preparation and a step in the prosecution, which is

not required to be disclosed to opposing counsel or formally served other than by

regular U.S. mail. They argue that the record is proof and protection for all

counsel, the court, and parties as to actions outside of discovery requests. The

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Giglios also take exception with the lack of candor evidenced in the affidavits,

executed by the defendants’ counsel and attached to the motions to dismiss, in

which counsel attested to personal knowledge of no existence in the record of a

step in the prosecution when, in fact, it had discovered filings and yet still allowed

said motions to remain before the court.

At issue herein is whether plaintiffs’ request for the issuance of a subpoena

duces tecum on a third party constitutes a step in the prosecution so as to interrupt

the running of abandonment when it was filed in the record but not served on

opposing counsel. Jurisprudentially, a step in the prosecution must appear in the

record to ensure notice to the defendant of actions taken that interrupt

abandonment. Clark, 785 So.2d 779. “When any party to a lawsuit takes formal

action in the trial court, it is effective as to all parties.” Delta Dev. Co., Inc. v.

Jurgens, 456 So.2d 145, 146 (La.1984). Louisiana Code Civil Procedure Article

561(B) sets forth an exception to this formal action requirement for formal

discovery that is “authorized by this Code and served on all parties, whether or not

filed of record.” Codification of this exception was directly prompted by criticism

from judges and commentators of the formal requirement in formal discovery,

namely depositions taken with the consent of both parties and in which both parties

participated. Clark, 785 So.2d 779.

Here, the letter and subpoena both meet the formal action requirement, but

were never served on the opposing parties, who did not even know they were filed.

This flies in the face of the whole rationale for the judicial engraftment of the

formal action requirement onto Article 561 in the first place. As Judge Tate

explained, allowing informal, ex parte actions to serve as a step in the prosecution

“might interrupt prescription against abandonment without the opposing parties

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formally learning of them for months or years, to their possible prejudice.”

DeClouet v. Kansas City Southern Ry. Co., 176 So.2d 471, 476 (La.App. 3 Cir.),

writ refused, 178 So.2d 662 (La.1965)(Tate, J., dissenting from denial of

rehearing). That is exactly what happened in this case, as the relators had no

knowledge of the request or subpoena for about seven months.

We find that the letter requesting the issuance of a subpoena is properly

classified as a discovery request, a particular type of step in the prosecution of a

case. Article 561(B) requires that for a discovery request to interrupt prescription,

it must be served on all parties. The trial court clearly found that notice of the

subpoena was not served on the defendants. Therefore, the matter should have

been adjudged abandoned. The trial court’s ruling is reversed, and the case is

remanded for the trial court to enter a formal order of dismissal as of October 31,

2016. See La.Code Civ.P. art. 561(A)(3).

Finally, DPSC and the Venables have filed a Motion for Sanctions and/or

Dismissal for Failure to Comply with Signed Certificate, citing the failure of the

plaintiffs to serve copies of their briefs to the defendants. Uniform Rules – Courts

of Appeal Rules 2-14.1 and 2-14.2. There is no authority for this court to award

sanctions for failure to comply with these rules. See Williams v. Andrus, 11-239

(La.App. 3 Cir. 10/5/11), 74 So.3d 818, writ denied, 11-2464 (La. 1/20/12), 78

So.3d 144. Furthermore, in order to award sanctions, this court would have to take

evidence to determine if the briefs were properly served, and we are not a court of

record. The motions for sanctions and/or dismissal is denied.

MOTIONS DENIED. WRIT GRANTED AND MADE PEREMPTORY.

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