131 So. 3d 1128
La. Ct. App.2014Background
- Heirs filed original petition in 1999, with amendments in 2000, 2001, and 2004; no answers were filed to any petitions.
- Counsel for heirs moved for a status conference on March 26, 2008 to set deadlines and move toward resolution; conference set for August 28, 2008.
- A telephone conference occurred on August 28, 2008, resulting in an indefinite continuance to discuss settlement; no minute entry memorializes the call.
- Hei rs filed a Motion for Status Conference again on August 23, 2011 and a conference was scheduled for October 18, 2011.
- Appellees moved to dismiss on September 2, 2011 on grounds of abandonment asserting no prosecution steps since March 2008; the trial court dismissed on September 7, 2011, retroactive to March 26, 2008.
- On appeal, the sole issue is whether the trial court erred in finding abandonment under La. Code Civ. Proc. art. 561; the court ultimately reverses and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the suit was abandoned under Article 561 | Heirs contend the August 28, 2008 conference/continuance interrupted abandonment | Defendants argue the 2008 continuance was a waiver/step toward prosecution | Abandonment tolling begins August 28, 2008; reverse and remand for further proceedings |
Key Cases Cited
- Dean v. Delacroix Corp., 106 So.3d 283 (La.App. 4 Cir. 2012) (tolling begins with ultimate step toward trial)
- Meyers ex rel. Meyers v. City of New Orleans, 932 So.2d 719 (La.App. 4 Cir. 2006) (abandonment; last step and exceptions)
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La.2001) (pre-abandonment waiver and exceptions)
- Oilfield Heavy Haulers, L.L.C. v. Department of Transportation, 79 So.3d 978 (La.2011) (consolidates exceptions to abandonment)
- Argence, L.L.C. v. Box Opportunities, Inc., 95 So.3d 539 (La.App. 4 Cir. 2012) (on-record step requirement; no waiver by continuance)
- London Livery, Ltd. v. Brinks, 3 So.3d 13 (La.App. 4 Cir. 2008) (extension of time not a prosecution step; waiver analysis)
- Bourg v. Entergy La., LLC., 115 So.3d 45 (La.App. 5 Cir. 2013) (continuance not a cognizable step toward abandonment)
- Hutchison v. SeaRiver Mar., Inc., 22 So.3d 946 (La.App. 1 Cir. 2009) (continuances generally not steps toward judgment)