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ANGELO A. CORCEONE NUMBER: 136,741 DIV: B

THE FAMILY COURT VERSUS

EAST BATON ROUGE P~~

KIMBERLYS.CORCEONE STATEOFLOUISIANA UPE~ ***************************************************************************s;ILE:[)

MOTION TO VACATE ALL JUDGMENTS and ORDERS *****************************************************************************

NOW INTO COURT, through undersigned counsel, comes KIMBERLY

CORCEONE, a major resident of the State of Florida, who respectfully represents that:

1.

Attached hereto is a certified copy of a Motion and Order to Dismiss Abandoned Suit

filed on May 2, 2003 and ordered by the Honorable Luke A. LaVergne on May 5, 2003.

2.

Petitioner avers that since the suit was adjudged abandoned by this honorable court, and

all appeal delays have long since passed, the suit entitled Angelo A. Corceone v. Kimberly

Corceone, docket number 136,741 in Division B of the Family Court of East Baton Rouge, State

of Louisiana, no longer exists.

3.

Petitioner avers that since the suit was abandoned, anything purporting to be a judgment

or order of this court in this suit is absolutely null on its face.

WHEREFORE, PETITIONER, KIMBERLY CORCEONE, respectfully prays that

this Honorable Court vacate ALL judgments and orders, including but not limited to all child

custody, child support, visitation, and school attendance judgments and orders rendered in the

above-captioned case.

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ANGELO A. CORCEONE NUMBER: 136,741 DIV: B

THE FAMILY COURT VERSUS

EAST BATON ROUGE PARISH

KIMBERLYS.CORCEONE STATE OF LOUISIANA ******************************************************************************

ORDER TO VACATE ALL JUDGMENTS and ORDERS ******************************************************************************

CONSIDERING THE MOTION and ORDER TO DISMISS SIGNED ON THE s™

OF MAY, 2003:

IT IS ORDERED THAT ALL Judgments and orders, including but not limited to all

child custody, child support, visitation, and school attendance judgments and orders rendered in

Angelo A. Corceone v. Kimberly Corceone, docket number 136,741 in Division B of the Family

Court of East Baton Rouge, State of Louisiana case are hereby vacated.

THUS DONE AND SIGNED in Baton Rouge, Louisiana, on this, the_ day of

___ ,2012.

JUDGE LISA WOODRUFF-WHITE, THE FAMILY COURT

SUBMITTED BY:

Miles Law Firm, LLC 251 Florida St. Suite #311 Baton Rouge, LA 70801 phone: (225) 387-0880 fax: (225) 381 -0096

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ANGELO ARTURO CORCEONE NUMBER 136,741 DIV. "B"

VERSUS " ·~. ;('""' ,.~ r;;:: t·). . THE FAMILY COURT

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it. ·w-·· ··<· , . PARISH OF EAST BATON ROUGE

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KIMBERLY STONEWALL CORCEONE ___ TATE OF LOUISIANA

MOTION~~J~SS ABANDONED Sl!IT

On motion of Kimberly Stonewall Corccone, defendant in the above captioned suit, through undersigned counsel, and on suggesting to the Court that this suit has been abandoned, that service of the petition on the defendant has never been perfected, although an answer was filed into the record on 24 July 2000 and a rule to show cause has not been filed within two years of the service of the original petition or filing of the answer, and that this suit should be dismissed; and

On futiher suggesting that all defendant's costs and commissions due the clerk of comi have been paid, as evidenced by certificates of the officer, attached to this motion in compliance with R.S. 13:4201. /l · j ~~:; /( (:/ By: .~-· - ·- -,_,t /---·

-----;;-\ -· -~ P ARRIS.A. TAYLO , Attorney 3031 Nolih Blvd. P. 0. Box 4413 Baton Rouge, Louisiana 70821-4413 225-3 36-4983 Bar Roll No. 25519

**** ORDER ****

---~ ~ORDERED that the above captioned suit is disrnissed as of tl1e ,!J ~ay of

,2003. ~~

Baton Rouge, Louisiana, this !J -::-day ~0~ ~· ~ Judge

* * * CERTIFICATE OF PAYMENT OF COSTS

I certify that all costs and commissions due the clerk of this Court in the above captioned matter have been paid.

isiana, this __ day of , 2003.

Deputy Clerk

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1 . r . ~ l~~~:~i~y tl~a~ ~ ~opy_of,~his motion to dismiss was mailed to counsel of reco"It,::faf/j.1,E-AM: plam.1fi, J.JJI to 1ts Lt:mg ftkt. M4y ·

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CLERK OF THE 19TH JUDICIAL COURT

08/ 03/2012 13:45 2253810095 DON SIMt•10NS PAGE 02/04

ANGELO ARTURO CORCEONE NUMBER: 136,741 DIV: B

THE FAMILY COURT VERSUS

EAST BATON ROUGE PARISH

KIMBERLYSTONEWALLCORCEONE STATE OF LOUISIANA *****************************************************~***********************

MEMORANDUM IN SUPPORT *****************************************************************************

This memorandum. is filed on behalf of' respondent, IGMBERLY CORCEONE. This

matter comes before the Court pursuant to respondent's .motion to vacate.

STATEMEN:f .. OF CASE

On or about June 2000, plaintiff, ANGELO ARTURO CORCEONE, filed a petition

for divorce and ancillary matters. Defendant. KIMBERLY CORCEONE, filed an answer on

July 24,2000. According to statute, p1ain.tiffbad two (2) years from the time of the answer to

file a rule to show cause. Plaintiff did not, and as a result, the suit was abandoned. Defendant's

attorney filed a motion to dismiss the above-captioned suit which was signed by this Honorable

Court on the 5 th of May, 2003.

LAW

La. CCP Art. 3954. Abandonment of action

A. A divorce action instituted under Civil Code Article 102 is abandoned if the rule to show

cause provided by that Article is not filed within two years of the service of the original petition

or execution of written waiver of service of the original petition.

B. This provision shall be operative without formal order, but on ex parte motion of any party

or other interested person, the trial court shall enter a formal order of dismissal as of the date of

abandonment. (Emphasis added).

08!03/2012 13:46 22538100'36 DON SifviMONS

La CCP Art. 1673. Effect of dismissal with or without prejudice

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute

dismissal after trial. A judgment of dismissal without p~judice shall not constitute a bar to

another suit on the same cause of action. (Emphasis added).

ARGUMENT

PAGE 03/04

At issue is whether your Honor can vacate orders and judgments of the court ex-parte in

this matter. By orders of this honorable court, ••the above captioned suit is dismissed as of the

5th day of May, 2003". This is a final judgment. Since this was an involuntary dismissal

without prejudice, Mr. Corceone bad the option of filing anothe:r suit according to La. CCP art

1673 or appealing. A judgment of dismissal without prejudjce is appealable if it involves an

involuntary dismissal without prejudice. Yamaha Motor Corporation, U.S.A. v. Bonfanti

.Industries, Inc., 589 So.2d 575, 579 n.7 (La. App. 1st Cir. 1991 ); see also Dusenbery v.

McMo.Ran Exploration Co., 425 So.2d 249, 251 (La. App. 1st Cir.. 1982) (noting that a

judgment of dismissa1 without pr~judice is a final judgment and therefore is appealahle; the

exception to this rule occurs when a party voluntarily obtains a judgment of dismissal without

prejudice, then ther.e is no right to an appeal because the party acquiesced in the judgment).

Because the dismissal was entered on May 5, 2003, the time for a suspensive and/or

devolutive appeal has long since run. According to law, Mr. Corceone has one other option and

that is to file another suit.

"What l'vfr_ Corcenne. ~~nnnt no, howeve'r, :is $l~l himself of any roJiof in the in3tant .,uit.

Quite logically the dismissal would then have no effi.lct if it did not serve its intended purpose. A

judgment of dismissal. terminates the subject lawsuit and all orders and judgments. My client is

simply asking your Honor to terminate those orders which were erroneously made in this suit.

1'be motion to dismiss was entered on ex parte motion as provided by La. CCP 3954. Requiring

a summary proceeding to vacate the judgment and orders which comprise the dismissed suit is

anathema to the spirit and intent of the article. In essence, requiring a rule to show cause on this

issue circumvents the article which allows and manc'l:ttP.~ th::~t tb~ dis:mi!i:£al of this oa.oe bo done

by ex-parte motion. Asking that the Court vacate orders on a case it dismissed is an issue that

bs/03/2012 13:45 2253810095 DON SIMiv10NS PAGE 04/04

should be done ex proprio motu, however, defendant has provided the court with the certified

copy of the judgment of dismissal. The dismissal was handled ex-parte, certainly asking the

court to enforce its own dismissal should not require a show cause hearing. That would. arguably

be an unauthorized use of a summary proceeding.

In conclusion, my client posits that this case was dismissed as ofMay 5, 2003. The

Court, upon recognizing this overlooked fact, has the duty to enforce its own jud.gment. The case

was properly dismissed and there has been no appeal; therefore, this suit is dead and there is no

mechanism in law to revive it. Because the dismissal was done ex-parte, vacating ali orders and.

judgments (in essence recognizing the court's own judgment of dismissal) should also be done

ex-parte.

Miles Law Firin, LLC 251 Florida St. Suite 311 Baton Rouge, LA 70801 phone: (225) 387-0880 fax: (225) 381-0096