Guillory v. Pelican Real Estate, Inc.
143 So. 3d 539
La. Ct. App.2014Background
- Guillorys sued Jones and Pelican-related agents for redhibitory defect and flooding risk in June 2008.
- St. Paul intervened with third-party demands and filed an Ex Parte Motion to Dismiss on June 20, 2013 for abandonment.
- Trial court dismissed with prejudice but later vacated to dismiss without prejudice after Guillorys’ motion to vacate.
- Guillorys argued discovery, including December 2012 interrogatories/production requests and a January 2013 Rule 10.1 conference, interrupted abandonment.
- Major issue: whether service/discovery during abandonment interrupts accrual for all defendants and whether interruption applies to solidary liable parties.
- Court held that discovery on Pelican (and service on all defendants) interrupted abandonment for all solidary defendants and reversed for remand.
- Court treated abandonment as a form of prescription; interruption against one solidary obligor interrupts all.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does service of discovery on some, and a Rule 10.1 conference, interrupt abandonment for all parties? | Guillorys: discovery on Pelican interrupted abandonment; service on all parties. | Jones/St. Paul: discovery on all defendants not served; no interruption. | Yes; discovery on all served parties interrupts for all solidary defendants. |
| Is abandonment applicable to all defendants given solidary liability? | Interruption against one solidary obligor interrupts all. | Abandonment may apply per party; inconsistent with service on all. | Interruption applies to all solidary defendants; abandonment not proper. |
| Do totality of circumstances preclude abandonment? | Actions showed intent to litigate; not abandoned. | Inaction over three years supports abandonment. | No; record supports reversal and remand. |
Key Cases Cited
- Louisiana Dep't of Transportation & Development v. Oilfield Heavy Haulers, L.L.C., 79 So.3d 978 (La. 2011) (clarifies discovery/Rule 10.1 as a 'step' interrupting abandonment when proper service occurs)
- Louisiana Dep't of Transportation & Development v. Bayou Fleet, Inc., 39 So.3d 585 (La. 2010) (serving discovery on all parties satisfies Art. 561 through Art. 1474; discovery can interrupt abandonment)
- Clark v. State Farm Mutual Automobile Insurance Co., 785 So.2d 779 (La. 2001) (abandonment treated as liberative prescription; interruption applies to solidary obligors)
- Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983) (purpose of abandonment; not punitive; focus on avoidance of protracted suits)
- Thibaut Oil Co., Inc. v. Holly, 961 So.2d 1170 (La. App. 1 Cir. 2007) (intent and substance of actions matter over technical compliance)