Brumfield v. Varner

561 So. 2d 1376 (1990)

Lorraine Cuccia BRUMFIELD, Carolyn Cuccia Masson, Jacob Joseph Cuccia, Jr., Joyce Cuccia Wautley, Raymond K. Cuccia and Jay J. Cuccia v. Carl VARNER, Clement J. Curole, Paul J. Richard, George L. Bergman, Rene Woigner, Ivy J. Bourg, Harris Knight, Alcess Thibodeaux, Eunice J. France, Grand Isle Shipyard, Inc., John Doe and Richard Doe.

No. 90-C-0806.

Supreme Court of Louisiana.

June 1, 1990.

PER CURIAM.

Writ granted. Judgments of the district court and court of appeal, 557 So. 2d 479, are reversed. The motion to have plaintiff's petition dismissed as abandoned under La.C.C.P. art. 561 is denied. The case is remanded to the district court for further proceedings.

Within the requisite five year period, counsel for plaintiffs in Brumfield v. Varner, assigned to Division D in the 24th JDC of Jefferson Parish, who was also counsel for the named plaintiffs in Ruel v. Burnett, assigned to Division K in the same 24th JDC, filed two documents with the clerk of court of the 24th JDC. The first document, bearing the docket no. 289-040, (Brumfield) and the division, "D", was an order of transfer designed for the signatures of the judges of Divisions D and K approving and accepting the transfer of Brumfield to Division K. That order was filed on May 9, 1989, but not signed, and was apparently placed in the jacket of the Ruel case.

Simultaneously on May 9, 1989, counsel filed in the Ruel case, No. 247-342 of Division K, a motion to consolidate Ruel with Brumfield, no. 289-040 of Division "D". The order was signed by the judge of Division "K" on July 24, 1989. The coincident filing of the order of transfer bearing the Brumfield docket number, even if placed by the clerk of court in the Ruel jacket,[1] and the motion to consolidate the Brumfield and Ruel cases, bearing the Ruel docket number, constituted formal action on the record and clearly was a "step in its prosecution or defense" in the Brumfield matter in the 24th Judicial District Court. La.C.C.P. art. 561; Chevron Oil Co. v. Triangle, 436 So. 2d 530, 532 (La.1983). Both of these documents were filed on May 9, 1989, less than five years after earlier action in this case.

WATSON, J., dissents, would deny the writ.

[1] The record, for our purposes, must consist of papers, filed with the clerk of court, bearing that docket number regardless of where that document is placed once filed.