Chevron Oil Co. v. Traigle

• Decision Date: 27 June 1983
• Docket Number: 83-C-0164,Nos. 83-C-0161,83-C-0169 and 83-C-0172,s. 83-C-0161
• Parties: CHEVRON OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. PELTO OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. SOUTH COAST CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana. EXCHANGE OIL AND GAS CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
• Court: Louisiana Supreme Court

Page 530

436 So.2d 530

CHEVRON OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.

PELTO OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.

SOUTH COAST CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.

EXCHANGE OIL AND GAS CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.

Nos. 83-C-0161, 83-C-0164, 83-C-0169 and 83-C-0172.

Supreme Court of Louisiana.

June 27, 1983.

Rehearing Denied Sept. 1, 1983.

M. Truman Woodward, Jr., Charles A. Snyder, J. Grant Coleman, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for applicant in No. 83-C-0161.

Thomas C. Keller, William M. Backstrom, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for applicant in No. 83-C-0164.

Gordon O. Ewin, James A. Babst, Harry R. Holladay, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for applicants in Nos. 83-C-0169 and 83-C-0172.

Trudy M. White, Baton Rouge, for respondents in all cases.

Riley F. Boudreaux, Jr., Baton Rouge, for respondents in Nos. 83-C-0161 and 83-C-0164.

DENNIS, Justice.

The issue presented by this case is whether submission of an already abandoned suit for decision constitutes a waiver by the defendant of his right to seek a dismissal for failure to prosecute under article 561 of the Code of Civil Procedure. The trial judge answered this question in the negative and dismissed the plaintiffs' suits. The court of appeal affirmed. 424 So.2d 1221 (La.App. 1st Cir.1982). We reverse. The filing of cross motions for summary judgment constitutes a waiver by the defendant of his right to have the suit dismissed as abandoned.

The context of this controversy is four law suits filed on March 28, 1974 for recovery of Louisiana severance taxes paid under protest pursuant to the provisions of La.R.S. 47:1576. The suits were filed in Divisions B, D, I, and J of the Nineteenth Judicial District. On December 16, 1981, the plaintiffs filed motions and orders to consolidate the cases and transfer them all to Division I. The plaintiffs and the defendant also filed cross motions for summary judgment and joint stipulations of facts, accompanied by memoranda supporting the motions for summary judgment. The cross motions for summary judgment asserted that there was no issue as to the material facts and moved for cross rules to show cause why summary judgment should not be entered in each of the mover's favor. The judge of Division I refused to sign the orders transferring the cases, consolidating them, and setting a hearing date on the joint motions for summary judgment. He noted that it appeared the cases had been abandoned for want of prosecution. The defendant filed motions to dismiss all the cases, and the judge, with the consent of the judges of Division B, D, and J, held a hearing on the matter. Following the hearing, the judge signed an order dismissing the cases.

Article 561 of the Code of Civil Procedure provides in pertinent part:

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 five years. This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of abandonment.

By its clear and unambiguous wording, article 561 requires three things of the plaintiff: (1) that he take some "step" in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last "step" taken by either party. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975).

A party takes a "step" in the prosecution or defense of a suit when he takes formal action, before the court and on the record, intended to hasten the matter to judgment. Melancon v. Continental Casualty Company, supra; National Food Stores of La., Inc. v. Chustz, 361 So.2d 273 (La.App. 1st Cir.), writ denied, 362 So.2d 1120 (La.1978); Murphy v. Hurdle Planting and Livestock Co., Inc., 364 So.2d 167 (La.App. 1st Cir.1978), writ denied, 366 So.2d 562 (La.1979); Guedry Finance Co., Inc. v. Sanderson, 357 So.2d 1338 (La.App. 4th Cir.1978); Melancon v. Wood, 303 So.2d 222 (La.App. 4th Cir.1974); Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2nd Cir.), writ denied, 274 So.2d 708 (La.1973); Better Heating and Air Conditioning Co., Inc., v. United Beneficial Fire Insurance Co., 269 So.2d 502 (La.App. 1st Cir.1972).

The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. The determination that a claim is not being seriously pursued, which results in dismissal of the suit, must be certain; hence, any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the court record. In this way, examination of the record will reveal the status of the litigation with certainty and without resort to extrinsic evidence.

Melancon v. Continental Casualty Co., supra, 307 So.2d at 312.

According to the record, the last formal actions taken by the parties in these suits prior to the December 16 filings were the following: ¹

Chevron Oil v. Traigle, Collector of Revenue Amended answers to interrogatories filed April 20, 1976. ²

Pelto Oil Co. v. Traigle, Collector of Revenue Answers to interrogatories filed August 21, 1974.

South Coast Corporation v. Traigle, Collector of Revenue Answers to interrogatories filed July 26, 1976.

Exchange Oil and Gas Corporation v. Traigle, Collector of Revenue Answers to interrogatories filed July 26, 1976.

We disregard as steps in the prosecution of suit the motions to substitute counsel of record filed on July 29, 1980 by South Coast Corporation and Exchange Oil and Gas Corporation. Such a motion grants to counsel the right to take "steps" toward prosecution of his client's case, but does not itself constitute such a "step." Prater v. Schuykill Products Co., Inc., 281 So.2d 829 (La.App. 1st Cir.), writ denied 282 So.2d 719 (La.1973); State through Department of Highways v. Jackson, 211 So.2d 93 (La.App. 1st Cir.1968); McClure v. A. Wilbert's Sons Lumber & Shingle Co., 232 So.2d 879 (La.App. 1st Cir.1970).

We also do not consider any of the numerous correspondence filed into the record evidencing extensive negotiations between the parties. The plaintiffs argue that since these negotiations were conducted pursuant to an order to continue the pretrial conference signed by the court, they have somehow become part of the "record" in the various suits, and are therefore formal actions sufficient to constitute interruptions to abandonment. We disagree. As the court of appeal correctly observed, the ongoing negotiations in the instant case did not prevent any counsel from taking some formal action in or before the trial court within the intent of article 561 of the Code of Civil Procedure before April 28, 1981. 424 So.2d at 1224. At all times, the plaintiffs retained the ability to set these cases for trial if they felt the negotiations were not progressing satisfactorily. We do not consider the desire on the part of the parties in this case to proceed via summary judgment, requiring the negotiation of a stipulation of facts, sufficient to overcome the strong policy reasons embodied in the requirement that "steps" in the prosecution of a suit sufficient to interrupt abandonment occur on the face of the record.

We conclude that the trial judge was correct in observing that each of the cases had already been abandoned when they were presented to him for consolidation, transfer and summary judgment on December 16, 1981. The four suits were abandoned on April 20, 1981, August 21, 1979, July 26, 1981 and July 26, 1981, respectively. Therefore, the defendant had the right to file a motion to have each of these suits declared abandoned for failure to prosecute under article 561 of the Code of Civil Procedure. The record reveals, however, that the defendant did not file his motions to dismiss until after he had joined in the filing of a motion for summary judgment and stipulations of fact. The filing was accompanied by memoranda supporting the motion in each party's favor. We consider the filings of December 16, 1981 sufficient to constitute submission of the case for decision. See La.Code Civ.P. arts. 966 & 968. Cf. art. 1637. The issue before us, therefore, is whether the submission of these already abandoned cases by the defendant constituted a waiver of his right to have the suits declared abandoned and therefore dismissed.

The source of article 561 of the Code of Civil Procedure was article 3519 of the Civil Code, which read in part prior to its 1960 amendment:

Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.

La.Civ.Code art. 3519 (1870), as amended by Acts 1954, No. 615, § 1. Under article 3519, two exceptions to the rule of five year abandonment were recognized: (1) when the failure to prosecute was caused by circumstances beyond plaintiff's control, and (2) when the defendant waived his right to plead abandonment by taking any action in the case inconsistent with an intent to treat the case as abandoned. Melancon v. Continental Casualty Co., supra, 307 So.2d at 311. See La.Code Civ.P. art. 561, Comment (c) (1960), and cases cited therein.

Among the differences between article 561 of the Code of Civil Procedure and article 3519 of the Civil Code are two of significance to the concept of waiver: (1) article 561 specifically states that its effect is self-operative, thus codifying the rule of Evans v. Hamner, 209 La. 442, 24 So.2d 814 (1946), and (2) article 561 states that a failure...