Bryon P. Guillory, Et Ux. v. Pelican Real Estate, Inc.
165 So. 3d 875
La.2015Background
- Guillorys filed suit on June 25, 2008 against Pelican Real Estate and others, alleging a redhibitory defect in their home.
- On March 4, 2010, depositions occurred; on December 17, 2012, the discovery was served only on Pelican and not on all defendants.
- Plaintiffs moved to vacate the dismissal after the court dismissed as abandoned for over three years without action.
- The district court held that discovery to Pelican and the Rule 10.1 conference were not service on all parties, so they did not interrupt abandonment.
- A court of appeal panel reversed, holding the discovery/notice potentially interrupted abandonment; the Supreme Court granted certiorari to review.
- The Supreme Court held the December 17, 2012 discovery and the Rule 10.1 conference notice, sent only to Pelican, did not interrupt abandonment, reversed the court of appeal, and reinstated the district court’s dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does discovery served only on Pelican interrupt abandonment under Art. 561(B)? | Guillory argued discovery and related actions interrupt abandonment. | Pelican argued service was not on all parties, so it did not interrupt abandonment. | No; not an interruption. |
| Does the Rule 10.1 conference notice to Pelican count as a step in prosecution? | Plaintiffs contend it shows active prosecution. | Defendants argue it was not a valid step since not served on all parties. | No; not a valid interruption. |
| Does Pelican counsel’s participation at the conference waive abandonment defense? | Plaintiffs rely on implied waiver. | Defendants deny waiver; extrajudicial discussions do not interrupt abandonment. | Waiver not shown. |
Key Cases Cited
- Louisiana Dept. of Transportation & Development v. Oilfield Heavy Haulers, L.L.C., 79 So.3d 978 (La. 2011) (Rule 10.1 conference not an interruption unless service on all parties)
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) (extrajudicial efforts insufficient to interrupt abandonment)
- Louisiana Dept. of Transp. & Develop. v. Bayou Fleet, Inc., 39 So.3d 585 (La. 2010) (disposition limited to facts; service on all parties required)