London Livery, Ltd. v. Brinks

• Decision Date: 10 December 2008
• Docket Number: No. 2008-CA-0230.,2008-CA-0230.
• Citation: 3 So.3d 13
• Parties: LONDON LIVERY, LTD. v. Michael BRINKS and Eugene Golizio.
• Court: Court of Appeal of Louisiana — District of US

3 So.3d 13

LONDON LIVERY, LTD. v. Michael BRINKS and Eugene Golizio.

No. 2008-CA-0230.

Court of Appeal of Louisiana, Fourth Circuit.

December 10, 2008.

Jacques F. Bezou, Richard R. Ray, The Bezou Law Firm, Covington, LA, for London Livery, Ltd. and Alan B. Fisher.

Salvador Anzelmo, Thomas Milliner, Brian J. Burke, Metairie, LA, for Defendants/Appellants.

(Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD).

CHARLES R. JONES, Judge.

Appellants, Michael Brinks and Eugene Golizio, appeal the district court's judgment denying their motion to dismiss on grounds of abandonment. For the reasons set forth below, we reverse and remand.

In 1997, the Appellee, London Livery, Ltd., initiated this action for defamation and unfair trade practices against the defendants, two of its former employees. The only issue before the Court at that time was whether London Livery's action should be deemed abandoned pursuant to La. C.C.P. art. 561.

In their motion to dismiss on the grounds of abandonment, Appellants asserted that more than three years lapsed between December 9, 2002, and December 22, 2006, without any steps taken in the prosecution or defense of the claim. The record reflects the following: 1) December 9, 2002, London Livery filed a request for notice; 2) May 5, 2005, David Halpern enrolled as counsel of record for London Livery; and on 3) December 22, 2006, Reginald Laurent, enrolled as attorney of record and requested a status conference on behalf of London Livery.

The Appellants originally filed an ex parte motion to dismiss on grounds of abandonment in June of 2007. The motion to dismiss was denied on July 27, 2007. However, the district court's clerk of court did not mail a notice of the order of denial until November 15, 2007. In the interim, the Appellants re-urged their motion to dismiss on September 6, 2007, and the matter was set for hearing on November 2, 2007. The district court denied the motion to dismiss from the bench. This timely devolutive appeal follows.

In their sole assignment of error, the Appellants assert that the district court erred in denying the motion to dismiss due to abandonment.

DISCUSSION

Whether an action has been abandoned is a question of law. Olavarrieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568. This Court has held that with regard to abandonment actions pursuant to La. C.C.P. art. 561, the standard of review of the appellate court is simply to establish whether the lower court's interpretive decision is correct. Escoffier v. City of New Orleans, 2006-1005, p. 2 (La.App. 4 Cir. 4/11/07), 957 So.2d 216, 218.

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. La. C.C.P. art. 561. In the present case, the only step that occurred between December 9, 2002, and December 22, 2006, was the May 5, 2005 motion to enroll as counsel of record filed on behalf of London Livery. However, as the Appellants correctly point out, it is well established that motions to withdraw, enroll or substitute counsel are not considered formal steps in the prosecution as contemplated by La. C.C.P. art. 561. Brumfield v. McElwee, 2007-0548, p. 2 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 237.

Since the May 5, 2005 motion to enroll cannot be considered a step in the prosecution or defense of an action, this date cannot be considered. The next filing date is December 22, 2006, wherein London Livery filed a motion to enroll counsel and a request for status conference. The time period between December 9, 2002, and December 22, 2006, is over three years. Because nothing was filed by either party within the legislatively prescribed period, the action is abandoned.

In opposition to the motion to dismiss, London Livery relies on the jurisprudentially created exception to La. C.C.P. art. 561 concerning a defendant's post-abandonment conduct. This exception holds that an otherwise abandoned cause of action may be ineligible for a claim of abandonment, either before or after the three-year period elapses, "when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned." Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, p. 7 (La.5/15/01), 785 So.2d 779, 785.

In May of 2007, Appellants filed a motion for extension of time to respond to plaintiff's first supplemental petition. The motion was denied on May 29, 2007. A second motion for extension of time filed by Appellants on September 10, 2007, was granted. London Livery maintains that the motions for extension of time created an exception to article 561, thereby serving as a waiver to Appellants' right to plead abandonment.

Louisiana jurisprudence does recognize that certain actions taken by a defendant after the accrual of the abandonment period can constitute a waiver of the right to have a case dismissed for abandonment. Id.; Brown v. Michaels Stores, Inc., 2007-0772, p. 3 (La.App. 5 Cir. 2/19/08), 980 So.2d 62, 64; Thibaut Oil Co., Inc. v. Holly, 2006-0313, p. 7 (La.App. 1 Cir. 2/14/07), 961 So.2d 1170, 1174; Slaughter v. Arco Chem. Co., 2005-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387; In Re Succession of Wright, 37,670, p. 6 (La. App. 2 Cir. 9/24/03), 855 So.2d 926, 930. However, the waiver exception to article 561 has been applied only where, after the abandonment period has accrued, a defendant has taken steps that facilitated the judicial resolution of the dispute on the merits and were an expression of the defendant's willingness or consent to achieve judicial resolution of the dispute. Satterthwaite v. Byais, 2005-0010, p. 4 (La.App. 1 Cir. 7/26/06), 943 So.2d 390, 393.

Addressing the abandonment exception, the Clark Court explained:

An inherent distinction has been noted between a plaintiff's acts in relation to abandonment and those of a defendant. Unlike a plaintiff whose post-abandonment actions cannot serve to revive an abandoned action, a defendant's post-abandonment actions can serve to waive his right to plead abandonment. "Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit." Maraist & Lemmon, supra § 10.4 at 243. "No `definite action' by a plaintiff or inaction by a defendant after accrual of the [three-]year period can be construed as a waiver of abandonment by ...