115 So. 3d 45
La. Ct. App.2013Background
- Bourg sued Entergy Louisiana, L.L.C. and Essex Insurance for damages to his home allegedly due to Entergy’s post‑Katrina power restoration.
- Over two years, the parties filed pleadings; Essex’s December 2008 motion to reset its summary judgment was set for January 28, 2009 and then continued without date.
- No record activity occurred from January 2009 until January 27, 2012, when Bourg filed answers to Essex’s requests for admissions and a status conference motion.
- Entergy filed an ex parte motion to dismiss for abandonment on February 13, 2012, supported by an affidavit stating no steps had been taken since Essex’s 2008 motion.
- The trial court granted the abandonment dismissal; Bourg sought a devolutive appeal, which the court granted on March 5, 2012.
- The appellate court affirmed the dismissal, holding Bourg’s January 27, 2012 activity did not interrupt abandonment and that no waiver occurred absent timely, on-record steps.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether January 27, 2012 filings interrupted abandonment | Bourg argues the January 27, 2012 activity interrupted accrual. | Entergy argues the activity did not constitute a prosecutorial step toward judgment. | No; January 27, 2012 filings did not constitute a qualifying step. |
| Whether prior actions by Essex/Entergy waived abandonment | Bourg contends settlement negotiations and related activity interrupted abandonment. | Defendants contend such informal activity does not interrupt abandonment absent on-record steps. | No waiver shown; no on-record steps or timely motion to vacate. |
| Whether discovery propounded outside the record defeats abandonment | Bourg asserts discovery responses served Jan 27, 2012 undermine abandonment. | Propounded discovery occurred outside the record and was not shown to interrupt accrual. | Filing discovery outside the record after accrual does not defeat abandonment. |
Key Cases Cited
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) (definition of what constitutes a 'step' toward judgment under Art. 561)
- Hutchison v. Seariver Mar., Inc., 22 So.3d 989 (La.App. 1 Cir. 2009) (indefinite continuances do not interrupt abandonment)
- Gravlee v. Gravlee, 79 So.3d 1169 (La.App. 3 Cir. 2011) (informal settlement negotiations generally do not interrupt abandonment absent on-record activity)