Sheila Williams v. Angela Montgomery and Foremost Insurance Company
2019CA0580
| La. Ct. App. | Aug 18, 2020Background
- On May 3, 2013 Williams allegedly suffered a slip-and-fall on property she leased from April ("April") Montgomery. Williams sued Montgomery and Montgomery's insurer, Foremost, on May 2, 2014.
- Williams withheld service on Montgomery while pursuing settlement; Foremost was served and filed an answer on February 2, 2017.
- Foremost moved for abandonment as to Montgomery (Aug. 8, 2017), asserting no step was taken against Montgomery for >3 years; the trial court signed a defective February 9, 2018 order purporting to grant abandonment but lacking decretal language.
- Williams filed a first amended petition (Feb. 8, 2018); Montgomery was served Feb. 15, 2018. Montgomery later moved to dismiss for abandonment; the trial court dismissed Williams' claims against Montgomery with prejudice on Jan. 8, 2019.
- On appeal the court held Foremost's Feb. 2, 2017 answer constituted a "step" in the prosecution that interrupts abandonment as to all parties, reversed the trial-court dismissals, and remanded for further proceedings (including development of prescription evidence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action was abandoned as to Montgomery under La. C.C.P. art. 561 | Williams: the case was not abandoned because steps were taken in the record (e.g., Foremost answered) | Montgomery/Foremost: no step was taken regarding Montgomery for >3 years; service on Montgomery occurred after the abandonment period | The court held the action was not abandoned as to Montgomery because Foremost's Feb. 2, 2017 answer was a "step" that interrupts abandonment for all parties |
| Whether a formal "step" by one party applies to unserved defendants | Williams: any formal step in the record by any party interrupts abandonment as to all parties | Montgomery: argues interruption did not apply to her because she was not served within the period | The court applied established precedent: a step by any party is effective as to all parties, including unserved defendants |
| Validity of the trial court's February 9, 2018 order purporting to grant abandonment | Williams: the February 9 order was defective and interlocutory (lacked decretal language) | Foremost: treated the February 9 order as a dismissal | The court found the February 9 order lacked required decretal language and was interlocutory; reviewable with the final judgment on appeal |
| Whether Williams' claims are prescribed (liberative prescription) | Williams: because action was not abandoned, she may show interruption/suspension/renunciation of prescription; remand needed to develop evidence | Montgomery: asserts claims are prescribed (one-year delictual prescriptive period) and that earlier abandonment meant no interruption | The court remanded the prescription objection to the trial court for evidentiary development and resolution |
Key Cases Cited
- Delta Dev. Co. v. Jurgens, 456 So. 2d 145 (La. 1984) (a formal step by any party in the trial court interrupts abandonment as to all parties)
- Louisiana Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 79 So. 3d 978 (La. 2011) (elements and requirements for what constitutes a "step" to avoid abandonment)
- Bissett v. Allstate Ins. Co., 567 So. 2d 598 (La. 1990) (Supreme Court per curiam approving that a step in the record interrupts abandonment even as to unserved defendants)
- Brown v. Kidney & Hypertension Assocs., L.L.P., 5 So. 3d 258 (La. App. 1st Cir. 2009) (definition of a "step" must be a formal action in court or formal discovery appearing in the record)
- Laird v. St. Tammany Parish Safe Harbor, 836 So. 2d 364 (La. App. 1st Cir. 2002) (judgment must be precise and contain decretal language to be final)