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Bell v. Kreider11/30/2004
REVERSED, RENDERED AND REMANDED
This is a personal injury suit arising out of a 1998 accident on the Lake Pontchartrain Causeway Bridge. The suit was dismissed for abandonment. Plaintiffs filed a motion to vacate the order of dismissal, which was denied, and plaintiffs appealed. We reverse the denial of the motion to vacate and render judgment vacating the dismissal.
On January 3, 1998 the plaintiffs, Arthur Bell and Brennon Bell, were traveling northbound on the Causeway Bridge. Due to foggy conditions, the bridge authority had restricted traffic to the right-hand lane. Mr. Bell decided to pull over into a crossover lane on the double-span bridge. As he crossed the left-hand lane toward the cross-over, his car was struck by a vehicle operated by Karl Kreider, who was traveling in the restricted lane. Kreider, a New Orleans police officer, had been given permission to use the restricted lane by a Causeway officer.
The accident resulted in convoluted litigation. On December 30, 1998 plaintiffs simultaneously filed suits in Orleans Parish and Jefferson Parish against Kreider, Desiree Gaudet (owner of the vehicle Kreider had been driving), and Allstate Insurance Company (their insurer).
On May 14, 2002 plaintiffs amended both suits to add as defendants Officer John Brock of the Greater New Orleans Expressway Commission ("GNOEC"); Timothy Fondren, director of GNOEC; and GNOEC. Also on May 14, 2002, plaintiffs filed a second suit in Jefferson against all six of the defendants.
On November 8, 2002, the Orleans suit was transferred to Jefferson on an exception of improper venue. On December 6, 2002, the second Jefferson suit was dismissed on the ground of prescription. Bell v. Kreider, 03-300 (La.App. 9/16/03), 858 So.2d 58, writ denied, 03-2875 (La. 1/9/04), 862 So.2d 986. On November 21, 2003, the transferred Orleans suit also was dismissed on the ground of prescription. Bell v. Kreider, 03-1492 (La.App. 5 Cir. 12/29/03), writ denied, 04-613 (La. 4/23/04), 870 So.2d 309.
In this case, the May 14, 2002 supplemental and amending petition was filed more than three years after the filing of the petition, which had been the only step taken in prosecution of the case.
On July 8, 2002, newly-added defendants Brock and GNOEC filed an Answer to the supplemental and amending petition.
On December 10, 2002, Brock and GNOEC filed an Ex Parte Motion to Dismiss for Abandonment, asserting they were entitled to have the action dismissed because plaintiffs had failed to take any step in prosecution of the action for a period of three years. The trial court signed the order of dismissal that same date.
On January 13, 2003, plaintiffs filed a Motion To Vacate Ex Parte Order of Dismissal. The district court denied the motion to vacate and plaintiffs appealed.
La.C.C.P. art. 561 provides the time frame for abandonment, as follows:
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..
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years 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..
Plaintiffs assert the trial court erred in granting the motion to dismiss, because defendants filed an answer into the record of the proceedings five months prior to their filing the motion for dismissal. Although the answer was filed after the three-
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