194 So. 3d 720
La. Ct. App.2016Background
- Plaintiffs sued Wasserman; trial court dismissed the suit with prejudice by final judgment in 2006. Notice of judgment mailed Feb 8, 2007.
- Plaintiffs timely filed a motion and proposed order for a devolutive appeal within the appellate delay, but the trial judge did not sign the order.
- In 2015 plaintiffs asked a successor judge to sign the order; the successor judge declined and, sua sponte, dismissed the case as abandoned under La. C.C.P. art. 561(A)(1) for over three years of inactivity.
- Plaintiffs appealed the 2015 dismissal; the appellate court reviewed the dismissal de novo.
- The court concluded Article 561(A)(1) (three-year abandonment of actions pending in trial court) does not apply where the action has been reduced to a final judgment. Instead, the applicable provision concerns abandonment of appeals (Art. 561(C) / Art. 2165), which incorporates appellate rules that require lodging of the record before default-abandonment procedures apply.
- Because the order of appeal was timely filed but never signed (a defect not imputable to appellants), the record was never lodged in the court of appeal and the appeal was not abandoned; the 2015 dismissal was vacated and the case remanded with instructions to sign the order of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La. C.C.P. art. 561(A)(1) three-year abandonment of actions applies after a final judgment | Art. 561(A)(1) is inapplicable because the action was reduced to final judgment | Trial judge treated the passage of time post-judgment as abandonment under Art. 561(A)(1) | Court: Art. 561(A)(1) applies only to actions pending in trial court; not to matters already reduced to final judgment — judge erred |
| Whether plaintiffs’ timely-filed but unsigned order of devolutive appeal resulted in abandonment | Timely filing of the motion/order for appeal manifests intent; delay in obtaining judge’s signature is not imputable to appellants | Unsigned order meant no valid appeal was perfected; delay justified dismissal | Court: Failure to obtain judge’s signature is not imputable to appellant (Traigle/Scales); appellants did not abandon the appeal |
| Whether appellate-abandonment provisions (Art. 561(C), Art. 2165, appellate rules) justify dismissal where record never lodged | Appellate-abandonment rules trigger only after record is lodged; here record never lodged because order was unsigned and costs not estimated/paid | Dismissal appropriate for lack of prosecution | Court: Art. 561(C)/Art. 2165 incorporate appellate rules which presuppose lodging; because lodging never occurred, those abandonment procedures were not triggered |
| Whether Art. 2126 (failure to pay estimated costs) authorizes dismissal here | Art. 2126 procedures (cost estimate, notice) only commence after order of appeal is granted/signed; plaintiffs never received notice | Trial judge relied on abandonment for delay and lack of steps | Court: Art. 2126 could not be applied because the clerk never estimated costs (order unsigned), so dismissal on that basis was improper |
Key Cases Cited
- Wilson v. King, 96 So.2d 641 (La. 1957) (abandonment statute not intended to apply where suit prosecuted to final judgment)
- Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La. 1981) (timely-filed order of appeal not signed by judge is not a defect imputable to appellant)
- Barton v. Burbank, 71 So. 134 (La. 1916) (parties not responsible for judge’s delay in performing ministerial duties after submission)
- Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983) (policy underlying abandonment rule: prevent protracted, harassing litigation)
- Scales v. State of Louisiana, 391 So.2d 871 (La. App. 4th Cir. 1980) (failure to obtain trial judge’s signature on timely order of appeal not attributable to appellant)
- Lopez v. Southern Natural Gas Co., 287 So.2d 211 (La. App. 4th Cir. 1973) (delay after submission for judgment is not chargeable to parties; Art. 561 inapplicable)