748 So. 2d 522 | La. Ct. App. | 1999
Trevis LEWIS
v.
CITY OF NEW ORLEANS.
Court of Appeal of Louisiana, Fourth Circuit.
Norman Mopsik, William Legrand, New Orleans, La., Attorneys for Plaintiff/Appellant, Trevis Lewis.
Richard P. Ieyoub, Attorney General, M. Chadwick Pellerin, Assistant Attorney General, New Orleans, La., Attorneys for Defendant/Appellee, The State of Louisiana.
Court composed of Judge WILLIAM H. BYRNES, III, Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY, III.
WALTZER, Judge.
Defendant, the State of Louisiana, moved to dismiss the action pursuant to LSA-C.C.P. art. 561. The trial court found that the action had been abandoned and dismissed it.
FACTS AND PROCEDURAL HISTORY
Trevis Lewis suffered injuries after a fall on 2 August 1990. She filed suit against the City of New Orleans in August 1991. The City answered the suit in September 1991.
On 29 June 1993, plaintiff requested a trial date. Trial was scheduled for 4 February 1994. On 15 December 1993, the City filed a notice of deposition. On 4 January 1994, the City filed a Witness List. On 2 February 1994, plaintiff moved to continue the trial.
On 9 March 1995, plaintiff filed a First Supplemental and Amended Petition to add the State as a defendant. On 16 October 1998, plaintiff filed a second First Supplemental and Amended Petition to add again the State as a defendant. The State was served on 16 November 1998.
On 5 January 1999, the State moved to dismiss the action, arguing that it had *523 been abandoned. The trial court heard this motion on 12 February 1999 and dismissed the action.
Plaintiff appeals the dismissal of her action. She argues that the action was not abandoned, because she alleges she took certain steps in the prosecution of her claim.
DISCUSSION
The State argues that plaintiffs action must be dismissed because the parties abandoned it under LSA-C.C.P. art. 561. An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. LSA-C.C.P. art. 561. By Act 1997, No. 1221, Section 1, LSA-C.C.P. art. 561 was amended to provide that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Section 2 of this Act provides that the Act shall become effective on 1 July 1998 and shall apply to all pending actions. By its very terms the amendment applies retroactively. This statute is self-actuating, and "No formal order is necessary." Picone v. Lyons, 94-2428 (La.App. 4 Cir. 4/26/95); 653 So.2d 1375, 1377.
The trial court found that the parties failed to take any step in the prosecution or defense of this action from 9 March 1995 until 16 October 1998. Plaintiff alleges that service was attempted on 13 November 1996 on the State of Louisiana and that she requested a trial on both 9 January 1997 and 19 February 1998. To preclude a finding that the action has been abandoned, the record must contain evidence of the alleged "step in the prosecution or defense." Richey v. Fetty, 96-2762 (La.App. 1 Cir. 4/8/98); 715 So.2d 1, 4. From our review of the record, we find no support for plaintiffs allegations that she took any step in the prosecution of the claim for more than three years after 9 March 1995. The action was abandoned after 9 March 1998. The trial court properly dismissed the action.
CONCLUSION
For the above reasons, we affirm the judgment of the trial court dismissing plaintiff's action.
AFFIRMED.
