Dimm v. R.J. Reynolds Tobacco Co.
| Decision Date | 13 September 2013 |
| Docket Number | No. 2012 CA 1879.,2012 CA 1879. |
| Citation | 186 So.3d 680 |
| Parties | Alice DIMM, Lynn Lewis, Arminthe Brigalia, Peggy Wunstell, Cheryl Crochet, Loretta Lewis, and Sadie Hood v. R.J. REYNOLDS TOBACCO COMPANY; Nabisco, Inc.; Brown & Williamson Tobacco Corporation; Batus, Inc. ; Batus Holdings, Inc. ; The American Tobacco Company, Inc.; American Brands, Inc.; Philip Morris, Inc.; Philip Morris Companies, Inc.; Liggett Group, Inc.; Quaglino Tobacco and Candy Company, Inc.; Imperial Trading Company, Inc.; and George W. Groetsch, Inc. |
| Court | Court of Appeal of Louisiana — District of US |
Jessica W. Hayes, Stephen B. Murry, Charles J. Brown, Jr., Nicole A. Ieyoub, Arthur M. Murray, New Orleans, LA, for Plaintiffs–Appellants, Alice Dimm, Lynn Lewis, Arminthe Brigalia, Peggy Wunstell, Cheryl Crochet, Loretta, Lewis, and Sadie Hood.
Phillip A. Wittmann, Dorothy H. Wimberly, Carmelite M. Bertaut, New Orleans, LA, for Defendants–Appellees, R.J. Reynolds Tobacco Co.
Vance A. Gibbs, Mark A. Marionneaux, Baton Rouge, LA, for Defendants–Appellees, Brown & Williamson Tobacco Corp., as successor by merger to The American Tobacco Co.
Thomas P. Anzelmo, Lynda A. Tafaro, Metairie, LA, for Defendants–Appellees, Quaglino Tobacco and Candy Co., Inc., Imperial Trading Co., Inc., and George W. Groetsch, Inc.
Madeleine Fischer, Ryan E. Johnson, New Orleans, LA, for Defendant–Appellee, Liggett Group, L.L.C.
Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
The trial court dismissed the plaintiffs' lawsuit as abandoned due to the failure of the parties to take any step in the lawsuit's prosecution or defense for over three years. For the following reasons, we amend the trial court's judgment to reflect that the plaintiffs' lawsuit is dismissed "without prejudice," and as amended, we affirm.1
The plaintiffs are the children of decedent, Sadie Lewis, who died prior to the filing of this lawsuit, allegedly due to medical conditions/injuries, including lung cancer, caused by a long-term addiction to cigarettes.2 The plaintiffs sought survival and wrongful death damages from the defendants, who had allegedly manufactured, promoted, distributed, and sold cigarettes to their deceased mother, beginning when she was a minor child.3
The plaintiffs filed this lawsuit on July 19, 2000. The lawsuit was removed to federal district court shortly thereafter, but approximately one year later it was remanded back to the Eighteenth Judicial District Court. Following remand, the various defendants began to file answers to the plaintiffs' petition and conduct limited written discovery. On September 11, 2003, counsel for defendant, R.J. Reynolds Tobacco Co. (R.J. Reynolds), sent a letter to the plaintiffs' counsel with enclosed medical release forms for execution by the plaintiffs as part of the discovery process.
Following the medical release request letter, defendants assert that there was no further activity of record or exchange between any parties' counsel until the plaintiffs filed a motion to set a status conference on January 10, 2011. However our examination of the record reveals that the Clerk of Court's case history ledger indicates that the plaintiffs filed a written request for admission of facts on August 16, 2007. That request for admission discovery pleading is not actually contained in the record on appeal and the case history ledger does not indicate whether the request for admission was served on all of the parties. The record also contains a change of address notice filed on August 16, 2007, by counsel for the plaintiffs, and then nothing else appears in the record until the plaintiffs' motion for status conference filed three-and-a-half years later on January 10, 2011.
In February 2011, the defendants jointly and separately filed motions to dismiss the plaintiffs' lawsuit for abandonment, pursuant to La. Code Civ. P. art. 561. Additionally, the defendants objected to the trial court's setting of a status conference in a case that had been abandoned.4 The trial court granted the defendants' motions ex parte, and dismissed the plaintiffs' lawsuit as abandoned.5 The plaintiffs timely moved to set aside the dismissal, contending that the trial court erred when it dismissed the case for abandonment because of activity taken in a separate lawsuit, a class action entitled Scott v. American Tobacco Co., Inc., that was filed in the Orleans Parish Civil District Court, Civil Docket Number 1996–8461 (). The defendants filed oppositions to the plaintiffs' motion to set aside the dismissals, and the parties argued the merits of the plaintiffs' motion on September 8, 2011. At the conclusion of the hearing, the trial court denied the plaintiffs' motion and signed a judgment to that effect on October 26, 2011. The plaintiffs appealed, arguing that the ongoing activity in the Scott class action lawsuit prevented abandonment in this case; and therefore, the trial court erred in dismissing the plaintiffs' lawsuit.
Whether a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Hutchison v. Seariver Maritime, Inc., 2009–0410 (La.App. 1st Cir.9/11/09), 22 So.3d 989, 992, writ denied, 2009–2216 (La.12/18/09), 23 So.3d 946. However, a determination as to whether a case has been abandoned concerns a question of law that is reviewed by simply determining whether the trial court's interpretive decision was legally correct. Id. An appellate court owes no deference to the legal conclusions of the trial court. Jackson v. Moock, 2008–1111 (La.App. 1st Cir.12/23/08), 4 So.3d 840, 843.
Abandonment of an action is governed by La. Code Civ. P. art. 561, which provides, in pertinent part:
Louisiana Code of Civil Procedure article 561 has been construed as imposing three requirements to avoid an abatement of plaintiffs' action. Clark v. State Farm Mut. Auto. Ins. Co., 2000–3010 (La.5/15/01), 785 So.2d 779, 784. First, a party must take some "step" in the prosecution or defense of the action. In this context, a "step" is 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. James v. Formosa Plastics Corp. of La., 2001–2056 (La.4/3/02), 813 So.2d 335, 338. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Clark, 785 So.2d at 784.
The jurisprudence has recognized two categories of causes outside the record that are permitted to prevent the running of abandonment: (1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiff's control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, 785 So.2d at 784–785. Further, the jurisprudence has uniformly held that La. Code Civ. P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Paternostro v. Falgoust, 2003–2214 (La.App. 1st Cir.9/17/04), 897 So.2d 19, 21, writ denied, 2004–2524 (La.12/17/04), 888 So.2d 870. Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned. Id.
In this case, the record reveals that no party to this lawsuit took a step in the prosecution or defense of the action between August 16, 2007 and January 10, 2011, a period of more than three years.6 The plaintiffs do not dispute this fact. At the hearing on the plaintiffs' motion to set aside the dismissal, the plaintiffs made no attempt to demonstrate that any formal discovery that may not have been included in the record had been exchanged between the parties during the dormant time period. Likewise, the plaintiffs did not seek to establish that their inaction arose from circumstances that were beyond their control, i.e., contra non valentem, or that the defendants waived their rights to assert abandonment by taking actions inconsistent with their intent to treat this action as abandoned.
The plaintiffs argue that because their deceased mother met the definition of a class member in the Scott class action, the ongoing activity in Scott during the three-year period of inactivity in this lawsuit shows that the plaintiffs had no intent to abandon their lawsuit.7 Thus, the plaintiffs claim that the activity in the Scott class action prevented abandonment in this case. Contrarily, the defendants contend that the plaintiffs' deceased mother was not, and could not have been, a class member in the Scott class action, because the Scott class was defined to include those who would participate in a smoking-cessation program, which the plaintiffs' mother could not participate in due to her death, and further, the Scott class action specifically...
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