Norma Henry v. United Southern Assurance Co. and Lionel D. Rosette, Jr.

• Court: Louisiana Court of Appeal
• Decided: February 2, 2005
• Docket: CA-0004-1093
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1093

NORMA HENRY

VERSUS

UNITED SOUTHERN ASSURANCE CO. AND LIONEL D. ROSETTE, JR.

**********

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 96-C-0645-D HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and James T. Genovese, Judges.

AFFIRMED.

Jarvis Jerome Claiborne P. O. Box 1033 Opelousas, LA 70571-1033 Telephone: (328) 948-4336 COUNSEL FOR: Plaintiff/Appellant - Norma Henry

Lionel D. Rosette, Jr. 1746 Evans Street Opelousas, LA 70570 THIBODEAUX, Chief Judge.

Plaintiff, Norma Henry, appeals the judgment of the trial court which

dismissed her lawsuit on the basis of abandonment. The trial court concluded that

no steps had been taken for a period greater than three years after the submission of

evidence during a hearing to confirm a preliminary default. Initially, the trial court

allowed the record to remain open for the submission of further proof. We affirm

pursuant to La.Code Civ.P. art. 561.

I.

ISSUE

We shall consider whether the three-year time limitation on

abandonment in La.Code Civ.P. art. 561 applies solely to pre-trial procedures.

II.

FACTS

Plaintiff, Norma Henry, filed a petition for damages against Lionel D.

Rosette and United Southern Assurance Company on August 2, 1995, for an alleged

automobile accident. Both defendants were served personally and neither defendant

filed an answer or a responsive pleading. Ms. Henry filed for and obtained an order

for preliminary default against both defendants on July 11, 1996. On May 11, 1997,

the trial court did not confirm the default and left the note of evidence open for

remaining testimony, and an affidavit to establish the driver of the vehicle and the

insurance status.

On September 10, 2003, the deposition of the defendant, Lionel D.

Rosette, Jr., was taken. On March 5, 2004, plaintiff filed the deposition with the

clerk’s office. The plaintiff requested that this deposition be entered into the note of

1 evidence. The trial court considered this suit to be abandoned pursuant to La.Code

Civ.P. art. 561. As a result, the request to enter the deposition into evidence was

denied and the case was dismissed.

III.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 561 governs the issue of

whether a suit has been abandoned. The article provides, in pertinent part, 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[.]” La.Code Civ.P. art. 561(A)(1). The

purpose of [this article] was to “put an end to the then prevailing practice of filing suit

to interrupt prescription, and then letting the suit hang perpetually over the head of

the defendant unless he himself should force the issue.” Sanders v. Luke, 92 So.2d

156, 157 (La.App. 1 Cir. 1957). More importantly, it has been described as a

balancing concept, “on the one hand, the desire to see every litigant have his day in

court, and not to lose same by some technical carelessness or unavoidable delay; on

the other hand, the legislative purpose that suits, once filed, should not indefinitely

linger, preserving stale claims from the normal extinguishing operation of

prescription.” Id. at 159.

The Louisiana Supreme Court has explained that Article 561 imposes

three requirements:

First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a ‘step’ is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either

2 party; sufficient action by either plaintiff or defendant will be deemed a step. (emphasis added).

Clark v. State Farm Mut. Auto Ins. Co., 00-3010, p. 6, (La. 5/15/01), 785 So.2d 779,

784 (footnotes omitted). In this case, the plaintiff, Norma Henry, failed to take any

formal action to interrupt the three-year period set forth by the legislature. The

deposition of the defendant was taken over six years after the initial attempt to

confirm the default. Ms. Henry suggests that Article 561 applies only to pre-trial

issues. We disagree. The phrase ‘steps in its prosecution’ as used in this article

providing that an action is abandoned when parties fail to take any steps in its

prosecution or defense in trial court for period of [three] years “requires some formal

action before the court intended to [h]asten suit to judgment.” State Through Dep’t.

of Highways v. Jackson, 211 So.2d 93, 95 (La.App. 1 Cir. 1968). Neither the

language of the article nor the purpose of the abandonment mechanism suggests that

the three year prescribed period is limited to pre-trial issues. Furthermore, in Nora

v. Stanford, 93-3061 (La. 2/14/94), 633 So.2d 1209, where a plaintiff presented

evidence sufficient for confirmation of default judgment, but failed to present formal

judgment to trial for nine years, the supreme court found the action was properly

dismissed as abandoned because of non-prosecution for the prescribed time.

Similarly here, the evidence for confirmation of default, namely the deposition of Mr.

Rosette, was not introduced in a timely manner.

In addition, we find no merit in the argument that the trial judge did not

place a time limit as to when the evidence is to be admitted. The law provides the

time limit. Although parties can agree to renounce prescription or waive a

prescriptive period, a court cannot unilaterally circumvent a prescribed period. In

Putch v. Straughan, 397 So.2d 38, 40 (La.App. 2 Cir.), writ denied, 401 So.2d 976

(La.1981), the appellate court deemed the action abandoned and opined that, “[a]fter

3 the [trial] court’s statement that the case was being continued for argument, it was

plaintiff’s responsibility to request the trial judge fix a date for that argument.” In this

case, no waiver occurred nor was there an agreement to renounce prescription. Ms.

Henry had the responsibility to take steps in the prosecution of the action and submit

the case to the judge for a decision within three years of the first attempt to confirm

the default. Her failure is fatal to her lawsuit.

IV.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s dismissal of the

plaintiff’s claim pursuant to La.Code Civ.P. art. 561. Costs are assessed to plaintiff,

Norma Henry.