Arthur Truitt, Individually and as Administrator of the Estates of the Minor Children Derek Truitt, Shaunda Truitt, and Davonte Truitt and Brenda Truitt Versus Graco, Inc., Graco, Inc. of Minnesota, and Michael J. McAlvanaugh, M.D. ( 2019 )

ARTHUR TRUITT, INDIVIDUALLY AND AS NO. 19-CA-121
ADMINISTRATOR OF THE ESTATES OF
THE MINOR CHILDREN DEREK TRUITT, FIFTH CIRCUIT
SHAUNDA TRUITT, AND DAVONTE TRUITT
AND BRENDA TRUITT COURT OF APPEAL
VERSUS STATE OF LOUISIANA
GRACO, INC., GRACO, INC. OF
MINNESOTA, AND MICHAEL J.
MCALVANAUGH, M.D.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 499-621, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
November 20, 2019
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED
MEJ
SJW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
ARTHUR TRUITT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE
ESTATES OF THE MINOR CHILDREN DEREK TRUITT, SHAUNDA
TRUITT, AND DAVONTE TRUITT AND BRENDA TRUITT
Jack H. Tobias
COUNSEL FOR DEFENDANT/APPELLEE,
GRACO, INC.
Lynn M. Luker
JOHNSON, J.
Plaintiffs/Appellants, Arthur Truitt, individually and as administrator of the
estates of the minor children, Derek Truitt, Shaunda Truitt, and Davonte Truitt, and
Brenda Truitt, appeal the judgment that found their action was abandoned and
dismissed it in favor of Defendant/Appellee, Graco, Inc. (hereinafter referred to as
“Graco”), from the 24th Judicial District Court, Division “L,” and the subsequent
denial of their motion to set aside and vacate the judgment of dismissal and motion
for new trial. For the following reasons, we affirm the trial court’s judgments.
FACTS AND PROCEDURAL HISTORY
The pertinent facts for this appeal are as follows.
On October 4, 1996, Appellants filed a petition against Graco, Graco, Inc. of
Minnesota, and Dr. Michael J. McAlvanaugh, alleging they incurred damages
when Mr. Truitt suffered injuries resulting from the use of an airless spray paint
gun and the subsequent treatment of those injuries.1 Years later, in 2000, Avondale
Industries, Inc. (hereinafter referred to as “Avondale”) was served with a notice of
deposition for records by Appellants, seeking information regarding the spray gun
and personnel information for Mr. Truitt. At that time, Avondale was not a party
to the action. However, in 2002, Avondale filed a petition for intervention, seeking
reimbursement for payments made on behalf of Mr. Truitt for medical benefits and
indemnity payments. Over the years, the matter had been set for trial on a number
of occasions, but the trial was continued each time.
Graco filed an ex parte motion to dismiss for abandonment on October 23,
2017. In its motion, Graco alleged that Appellants’ action was abandoned because
they failed to take a step in the prosecution of the action for a period of greater than
three years and the action was considered abandoned on October 16, 2017. Graco
1
Dr. McAlvanaugh was dismissed from the action on August 28, 2002, pursuant to a voluntary motion
for dismissal filed by Appellants.
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attached a copy of a letter dated October 16, 2014 from attorney Richard Vale
addressed to Appellants’ attorney, stating that responses to the second request for
admissions were enclosed with the letter; Mr. Vale did not recall his law firm
having possession of the spray gun at any time; and Mr. Vale’s client was not a
party to the matter.2 The trial court granted Graco’s motion on October 23, 2017.
The next month, on November 30, 2017, Appellants filed a motion to set
aside judgment of abandonment. Appellants argued that Avondale was purchased
by Northrop Grumman Ship Systems, Inc. (hereinafter referred to as “Northrop
Grumman”), and the attorney for Northrop Grumman, Richard Vale, responded to
Avondale’s outstanding notice of records of deposition for records on October 22,
2014, which constituted a step in the defense of the matter. Appellants attached a
letter dated October 22, 2014 from Mr. Vale to its motion. Because October 22,
2017 fell on a Sunday, Appellants further argued that their action could not have
abandoned until October 24, 2017, and the action had not been abandoned on the
day Graco filed its motion for abandonment because it was filed one day early.
Appellants contended that Graco’s premature filing of its motion to dismiss for
abandonment was actually a step in the defense of the case.
Graco opposed Appellants’ motion to set aside judgment by arguing that Mr.
Vale’s client, Huntington Ingalls Incorporated, was not a party to the lawsuit at the
time the October 22, 2014 letter was sent because it had previously dismissed its
petition for intervention. Graco also argued that the October 22nd letter was not
formal discovery and was not a step in the prosecution or defense of the case
because it was not served on all of the parties.
Appellants’ motion to set aside judgment was heard on April 30, 2018. At
the conclusion of the hearing, the trial court denied Appellants’ motion. A written
2
The letter did not indicate who Mr. Vale represented. Nevertheless, the enclosed responses indicated
they were on behalf of Huntington Ingalls Incorporated (Avondale Operations), formerly known as
Northrop Grumman.
19-CA-121 2
judgment denying the motion was rendered on the same day. Appellants filed a
motion for new trial3 on May 9, 2019. In their motion, Appellants reasserted their
argument that the October 22, 2014 letter from Mr. Vale was a response to formal
discovery and was a step in the defense of the action. They further reasserted the
argument that Graco’s premature filing of its motion to dismiss for abandonment
interrupted abandonment and was also considered a step in the defense of the
action. Appellants’ motion for new trial was denied by the trial court on July 9,
2018. The instant devolutive appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Appellants allege the trial court committed manifest error in: 1)
failing to grant their motion to set aside and vacate the judgment of dismissal, and
2) denying their motion for rehearing.
LAW AND ANALYSIS4
Appellants allege the trial court committed manifest error by failing to grant
their motion to set aside and vacate the judgment of dismissal. They contend that
counsel for Northrop Grumman, Richard Vale, responded to a notice of records
deposition on October 22, 2014. Because October 22, 2017 fell on a Sunday,
Appellants argue that abandonment of the matter could not have occurred until
October 23, 2017, which was the same date Graco filed its motion for
abandonment. As a result, Appellants maintain that Graco’s October 23 rd motion
was prematurely filed, and the motion interrupted the abandonment period. Thus,
Appellants assert their motion for new trial should have been granted.
In response, Graco contends that the trial court’s judgment should not be
disturbed. It argues that the October 22, 2014 response relied upon by Appellants
was sent by an attorney representing a non-party to the lawsuit. Consequently,
3
Appellants actually titled the pleading “Motion for Rehearing;” however, we will refer to it as a motion
for new trial.
4
The assignments of error are interrelated and will be discussed jointly.
19-CA-121 3
Graco maintains that the October 22nd letter does not qualify as a “step” in the
prosecution or defense of the case. Graco further argues that the October 22nd
letter does not constitute a step in the matter because it was not served on all
parties, as required by La. C.C.P. art. 561(B).
In this appeal, Appellants raise the denial of their motion for new trial as an
error of the trial court. The denial of a motion for new trial is an interlocutory
judgment, which is not appealable. 9029 Jefferson Highway, L.L.C. v. S&D
Roofing, LLC, 15-686 (La. App. 5 Cir. 2/24/16); 187 So.3d 522, 524, citing Burns
v. Sedgwick Claims Mgmt. Servs., 14-421 (La. App 5 Cir. 11/25/14); 165 So.3d
147, 151. The denial of a motion for new trial is reviewable only under the
appellate court’s supervisory jurisdiction for abuse of discretion. Id. Thus, an
appeal from the order denying a new trial, rather than from the judgment from
which the new trial is sought, is improper. Id. However, the Louisiana Supreme
Court has directed us to consider an appeal of the denial of a motion for new trial
as an appeal of the judgment on the merits as well, when it is clear from the
appellant’s brief that he intended to appeal the merits of the case. Roubion Shoring
Company, LLC v. Crescent Shoring, L.L.C., 16-540 (La. App. 5 Cir. 5/17/17); 222
So.3d 921, 924, citing Smith v. Hartford Acc. & Indem. Co., 254 La. 341, 223
So.2d 826, 828-29 (1969). It is obvious from Appellants’ brief that they intended
to appeal the April 30, 2018 judgment, which denied their motion to set aside
judgment. Thus, we will address the merits of that judgment.
Before determining whether Graco’s motion for abandonment was
prematurely filed, we will first determine whether the October 22, 2014 letter at
issue was a step in the prosecution or defense of the matter.
Pursuant to La. C.C.P. art. 561, 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
19-CA-121 4
years.5 Abandonment shall be operative without formal order; however, on the ex
parte motion and affidavit of any party or other interested person that no step has
been taken in the prosecution or defense of the action, the trial court shall enter a
formal order of dismissal as of the date of its abandonment. Id. Any formal
discovery authorized by the Louisiana Code of Civil Procedure 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. Id. Once abandonment occurs, action by the plaintiff cannot breathe
new life into the suit. Lacassagne v. Oster Development, Inc., 16-596 (La. App. 5
Cir. 3/15/17); 215 So.3d 914, 917.
Article 561 imposes three requirements to avoid abandonment: 1) a party
must take some “step” in the prosecution or defense of the action; 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 three years of
the last step taken by either party. Louisiana Dep’t of Transp. & Dev. V. Oilfield
Heavy Haulers, L.L.C., 11-912 (La. 12/6/11); 79 So.3d 978, 981, citing Clark v.
State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01); 785 So.2d 779, 784.
Sufficient action by either plaintiff or defendant will be deemed a step. Id. A
“step” is a formal action before the court intended to hasten the suit towards
judgment or is the taking of formal discovery. Id., citing James v. Formosa
Plastics Corp. of La., 01-2056 (La. 4/3/02); 813 So.2d 335, 338. Extrajudicial
efforts, such as informal discussions and correspondence between the parties, have
uniformly been considered insufficient to constitute a step for purposes of
interrupting or waiving abandonment. Clark, 785 So.2d at 790; See also,
Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549 (La.
App. 1 Cir. 2/13/09); 6 So.3d 275, 281, writ denied, 09-575 (La. 4/24/09); 7 So.3d
5
La. C.C.P. art. 561 provides exceptions for certain succession proceedings.
19-CA-121 5
1200.
La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a
plaintiff’s suit. Nunez v. Burgos, 16-568 (La. App. 5 Cir. 3/15/17); 215 So.3d 931,
934. Abandonment is not meant to dismiss actions on mere technicalities but to
dismiss actions which, in fact, clearly have been abandoned. Id.In the case at bar, Appellants claim that Mr. Vale’s October 22, 2014 letter
was a step in the defense of the case. The letter at issue, which was admitted into
evidence at the motion hearing, simply states,
As you know, I recently responded to your Requests for
Admissions. I do not recall ever having the gun and made a diligent
search to confirm that we don’t have the gun.
If you will recall, Bill Vincent was the attorney who
represented Mr. Truitt in the compensation case. Perhaps, he has the
gun. I suggest you contact him.
The letter was solely addressed to the attorney for Appellants, and no evidence was
presented to prove that the letter was served on any other party in the matter. It is
unclear from the record whether Northrop Grumman was a party to the action at
the time Mr. Vale’s letter was sent.6 Because there is evidence in the record that
Avondale filed a petition for intervention but there is no evidence that the petition
on behalf of Avondale was ever dismissed, we must presume that Northrop
Grumman was still a party to the action at the time Mr. Vale sent the October 22nd
letter to Appellants’ attorney.
Despite Appellants’ argument, we find that the October 22, 2014 letter was
not a response to a notice of deposition. A plain reading of the letter clearly shows
that it was an informal correspondence between Appellants and Northrop
Grumman. Accordingly, we find that the October 22nd letter was an extrajudicial
correspondence and was insufficient to constitute a step for purposes of
6
In a letter dated October 14, 2014, Mr. Vale pointedly explained that he was responding to Appellants’
request for admissions, even though Northrop Grumman was not a party to the matter. However, there is
no proof in the record that Avondale’s petition for intervention had been dismissed.
19-CA-121 6
interrupting abandonment.
Even if we were to consider the October 22, 2014 letter to be formal
discovery, there was no evidence presented that the letter was served on all of the
parties. La. C.C.P. art. 561(B) provides that any formal discovery as authorized by
the Code and served on all parties whether or not filed of record shall be deemed to
be a step in the prosecution or defense of an action. In Paternostro v. Falgoust,
03-2214 (La. App. 1 Cir 9/17/04); 897 So.2d 19, 23, writ denied, 04-2524 (La.
12/17/04); 888 So.2d 870, the Louisiana First Circuit explained that
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. This requirement of service is in
keeping with the concept of notice, which the supreme court recently
addressed as follows: The rule is intended to ensure notice to the
defendant of actions taken that interrupt abandonment. Otherwise,
actions interrupting abandonment could occur without opposing
parties formally learning of them for months or years, to their possible
prejudice. (Emphasis in original)(Internal citations omitted).
Like the First Circuit, we find that, in order to ensure notice to a defendant of
actions taken that interrupt abandonment, all parties must be served with the formal
discovery. Thus, we hold that the October 22nd letter was insufficient to interrupt
abandonment because it was not served on all of the parties to the instant action.
Therefore, we do not find that the trial court was manifestly erroneous in
denying Appellants’ motion to set aside and vacate the judgment of dismissal and
motion for rehearing. Based upon the record before us, we further find that the last
step in the prosecution or defense of the matter occurred on October 16, 2014, and
abandonment had become operative when Graco filed its motion to dismiss for
abandonment.
DECREE
For the foregoing reasons, we affirm the trial court’s judgments in favor of
Graco, Inc. and against Arthur Truitt, individually and as administrator of the
estates of the minor children, Derek Truitt, Shaunda Truitt, and Davonte Truitt, and
19-CA-121 7
Brenda Truitt. Appellants are to bear the costs of this appeal.
AFFIRMED
19-CA-121 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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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
NOVEMBER 20, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-121
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
JACK H. TOBIAS (APPELLANT) LYNN M. LUKER (APPELLEE) BENJAMIN P. KAHN (APPELLEE)
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