79 So. 3d 1169
La. Ct. App.2011Background
- Deborah Gravlee filed for divorce and partition of community property in 1996; Mitch Gravlee died in 2005.
- Executor Randall Guidry, not substituted as a party, moved in 2011 to dismiss the partition for abandonment.
- Most community property has been partitioned; dispute remains over a $1.4 million jointly controlled bank account from Sonic company sales, which executor claims as Mitch's separate property.
- Deborah received checks from the executor settling claims on various community assets (insurer fire damage, home sale, several property sales) between 2006–2011.
- Court discussed whether abandonment law (Art. 561) applies to partition actions and whether executor’s actions precluded abandonment; trial court denied dismissal and this court affirmed.
- Executor’s involvement in settlements and property sales was deemed to constitute steps that precluded abandonment, supporting continued prosecution of the partition action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Art. 561 to partition actions | Gravlee argues the abandonment statute applies to partition actions. | Gravlee contends abandonment concerns are resolved by steps taken; formal applicability not necessary. | Abandonment not proven; steps preclude abandonment regardless of Art. 561 applicability. |
| Whether executor’s actions precluded abandonment | Actions by executor in settling assets show ongoing prosecution. | Executor’s actions do not count as steps in this partition action. | Executor’s settlements and related steps preclude abandonment. |
Key Cases Cited
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) (liberal construction favoring maintenance of a plaintiff's suit; abandonment doctrine applies with doubt resolved for prosecution)
- Kambur v. Kambur, 583 So.2d 1213 (La.App.4th Cir.1991) (steps in prosecution may be taken by non-parties and need not be on record)
- Am. Eagle, Inc. v. Employers' Liab. Assurance Corp., Ltd., 389 So.2d 1339 (La.App.1st Cir.1980) (unconditional tender or formal steps interrupt abandonment when related to litigation)
- Lima v. Schmidt, 595 So.2d 624 (La.1992) (tender interrupts accrual of abandonment; formal liability considerations)
- Young v. Laborde, 576 So.2d 551 (La.App.4th Cir.1991) (doubt resolved in favor of prosecution of claim)
- Kanuk v. Pohlmann, 338 So.2d 757 (La.App.4th Cir.1976) (abandonment defined; emphasis on substance over form)
- Gueldner v. Allstate Ins. Co., 30 So.3d 1143 (La.App.3 Cir.2010) (case cited regarding abandonment standard and steps)