SIMONNE ST. PE NO. 25-C-299
VERSUS FIFTH CIRCUIT
ROTO-ROOTER SERVICES COMPANY, COURT OF APPEAL TONY GAGLIANO, JR., AND OLD REPUBLIC INSURANCE COMPANY STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 808-157, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
August 13, 2025
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and E. Adrian Adams, Pro Tempore
WRIT DENIED SJW SMC EAA COUNSEL FOR DEFENDANT/RELATOR, ROTO-ROOTER SERVICES COMPANY, TONY GAGLIANO, JR., AND OLD REPUBLIC INSURANCE COMPANY Donald E. McKay, Jr. Jeffrey C. Brennan Mason C. Bonnaffons Leila A. D'Aquin
COUNSEL FOR PLAINTIFF/RESPONDENT, SIMONNE ST. PE Jerry W. Sullivan WINDHORST, J.
Defendants/relators, Roto-Rooter Services Co., Tony Gagliano, Jr., and Old
Republic Ins. Co., seek review of the trial court’s June 9, 2025 judgment, which
denied defendant’s motion to dismiss on grounds of abandonment.
In their motion to dismiss, defendants asserted that the last step in the
prosecution of this case was a deposition on February 4, 2022. In response, plaintiff
asserted that defendants produced an expert during mediation on September 29,
2022, which constituted a step in the prosecution of the case. Plaintiffs filed a motion
for status conference on April 2, 2025.
The issue presented is whether the production of an expert report during
mediation constitutes a step in the prosecution of the case.
LAW and ANALYSIS
Under La. C.C.P. art 561 A(1), 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.
To avoid abandonment, plaintiffs must take some “step” toward the prosecution of
their lawsuit intended to hasten the suit toward judgment, or the taking of a
deposition, with or without formal notice. Clark v. State Farm Mutual Automobile
Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784. Id. The step must be taken in
the proceeding and appear in the record of the suit, with the exception of formal
discovery. Id. The step must also be taken within the legislatively prescribed time
period, and sufficient action by either plaintiff or defendant will be deemed a step.
Id.
Whether or not a step in the prosecution of a case has been taken in the trial
court for a period of three years is a question of fact subject to manifest error analysis
on appeal. Lewis v. Digital Cable & Commc’ns N., 15-345 (La. App. 5 Cir. 11/19/15),
179 So. 3d 840, 844, Florreich v. Entergy Corp., 09–414 (La. App. 5 Cir. 2/23/10),
32 So.3d 965, 969, writ denied, 10-1057 (La.9/3/10), 44 So.3d 691. Louisiana
25-C-299 1 jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed
in favor of maintaining a plaintiff’s suit. Clark, 785 So.2d at 785. Abandonment is
not meant to dismiss actions on mere technicalities, but to dismiss actions which in
fact clearly have been abandoned. Id. at 786. Moreover, given that dismissal is the
harshest of remedies, the general rule is that “any reasonable doubt [about
abandonment] should be resolved in favor of allowing the prosecution of the claim
and against dismissal for abandonment.” Id. at 787, quoting Young v. Laborde, 576
So.2d 551, 552 (La. App. 4 Cir. 1991).
Under La. C.C.P. art. 561B, “[a]ny formal discovery as authorized by this
Code and served on all parties whether or not filed of record, including the taking of
a deposition with or without formal notice, shall be deemed to be a step in the
prosecution or defense of an action.” Lewis, 179 So.3d at 844. La. C.C.P art. 1474
C(4) states that “The serving of any discovery materials pursuant to the provisions
of this Article shall be considered a step in the prosecution or defense of an action
for purposes of Article 561, notwithstanding that such discovery materials are not
filed in the record of the proceedings.”
Production of Expert Report at Mediation
On the showing made, we cannot say the trial court was manifestly erroneous
in denying defendants’ motion to dismiss considering defendants produced an expert
report September 29, 2022. In plaintiff’s interrogatories and request for production
of documents, plaintiff requested information regarding whether defendants had
retained an expert and documents and reports related to the expert’s review of the
case. Defendants initially responded that no experts had been retained. Defendants
reserved the right to supplement and amend their responses. In fact, defendants had
an ongoing duty to supplement their responses under La. C.C.P. art. 1428. We
therefore find that the production of the expert report constituted a step in the
prosecution of the case.
25-C-299 2 Defendants argue that because the production was made during mediation it
does not constitute a step in the prosecution of the case under La. R.S. 9:4112 A.
Section A of this statute states “all oral and written communications and records
made during mediation, whether or not conducted under this Chapter and whether
before or after the institution of formal judicial proceedings, are not subject to
disclosure, and may not be used as evidence in any judicial or administrative
proceeding.” Section C, however, states:
C. The confidentiality provisions of this Section do not extend to statements, materials and other tangible evidence, or communications that are otherwise subject to discovery or are otherwise admissible, merely because they were presented in the course of mediation, if they are based on proof independent of any communication or record made in mediation. [Emphasis added.]
Here, defendants had an ongoing obligation, independent of any
communication in mediation, to supplement their responses to plaintiff’s
interrogatories and requests for production of documents. Defendants’ required
supplemental responses were provided independent of the mediation.
An expert report can clearly have a substantial impact on a case. Defendants’
use of an expert report requires production to plaintiff where plaintiff has issued
discovery requests relative thereto, defendants have responded in the negative, and
reserved their right to supplement. This obligation to supplement responses was an
ongoing obligation which had continued uninterrupted since the discovery had been
propounded.
Timing of Production of the Expert’s Report
Relators do not specifically argue the timing of production of the expert’s
report as a reason the report cannot interrupt the three-year abandonment period,
i.e., that production of the expert report came after the date that the rebuttable
presumption1 of abandonment began on February 4, 2025. However, because
1 Presumption of abandonment due to three years of inactivity is not conclusive. Clark, 785 So.2d at 787.
25-C-299 3 relators emphatically argue that abandonment is self-activating, and contend that no
step in the prosecution of the case occurred before the three-year period lapsed, we
address that issue to the extent that it is implicated by section “C” of the writ
application.
The Louisiana Supreme Court in Clark, supra, made clear that where there is
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SIMONNE ST. PE NO. 25-C-299
VERSUS FIFTH CIRCUIT
ROTO-ROOTER SERVICES COMPANY, COURT OF APPEAL TONY GAGLIANO, JR., AND OLD REPUBLIC INSURANCE COMPANY STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 808-157, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
August 13, 2025
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and E. Adrian Adams, Pro Tempore
WRIT DENIED SJW SMC EAA COUNSEL FOR DEFENDANT/RELATOR, ROTO-ROOTER SERVICES COMPANY, TONY GAGLIANO, JR., AND OLD REPUBLIC INSURANCE COMPANY Donald E. McKay, Jr. Jeffrey C. Brennan Mason C. Bonnaffons Leila A. D'Aquin
COUNSEL FOR PLAINTIFF/RESPONDENT, SIMONNE ST. PE Jerry W. Sullivan WINDHORST, J.
Defendants/relators, Roto-Rooter Services Co., Tony Gagliano, Jr., and Old
Republic Ins. Co., seek review of the trial court’s June 9, 2025 judgment, which
denied defendant’s motion to dismiss on grounds of abandonment.
In their motion to dismiss, defendants asserted that the last step in the
prosecution of this case was a deposition on February 4, 2022. In response, plaintiff
asserted that defendants produced an expert during mediation on September 29,
2022, which constituted a step in the prosecution of the case. Plaintiffs filed a motion
for status conference on April 2, 2025.
The issue presented is whether the production of an expert report during
mediation constitutes a step in the prosecution of the case.
LAW and ANALYSIS
Under La. C.C.P. art 561 A(1), 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.
To avoid abandonment, plaintiffs must take some “step” toward the prosecution of
their lawsuit intended to hasten the suit toward judgment, or the taking of a
deposition, with or without formal notice. Clark v. State Farm Mutual Automobile
Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784. Id. The step must be taken in
the proceeding and appear in the record of the suit, with the exception of formal
discovery. Id. The step must also be taken within the legislatively prescribed time
period, and sufficient action by either plaintiff or defendant will be deemed a step.
Id.
Whether or not a step in the prosecution of a case has been taken in the trial
court for a period of three years is a question of fact subject to manifest error analysis
on appeal. Lewis v. Digital Cable & Commc’ns N., 15-345 (La. App. 5 Cir. 11/19/15),
179 So. 3d 840, 844, Florreich v. Entergy Corp., 09–414 (La. App. 5 Cir. 2/23/10),
32 So.3d 965, 969, writ denied, 10-1057 (La.9/3/10), 44 So.3d 691. Louisiana
25-C-299 1 jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed
in favor of maintaining a plaintiff’s suit. Clark, 785 So.2d at 785. Abandonment is
not meant to dismiss actions on mere technicalities, but to dismiss actions which in
fact clearly have been abandoned. Id. at 786. Moreover, given that dismissal is the
harshest of remedies, the general rule is that “any reasonable doubt [about
abandonment] should be resolved in favor of allowing the prosecution of the claim
and against dismissal for abandonment.” Id. at 787, quoting Young v. Laborde, 576
So.2d 551, 552 (La. App. 4 Cir. 1991).
Under La. C.C.P. art. 561B, “[a]ny formal discovery as authorized by this
Code and served on all parties whether or not filed of record, including the taking of
a deposition with or without formal notice, shall be deemed to be a step in the
prosecution or defense of an action.” Lewis, 179 So.3d at 844. La. C.C.P art. 1474
C(4) states that “The serving of any discovery materials pursuant to the provisions
of this Article shall be considered a step in the prosecution or defense of an action
for purposes of Article 561, notwithstanding that such discovery materials are not
filed in the record of the proceedings.”
Production of Expert Report at Mediation
On the showing made, we cannot say the trial court was manifestly erroneous
in denying defendants’ motion to dismiss considering defendants produced an expert
report September 29, 2022. In plaintiff’s interrogatories and request for production
of documents, plaintiff requested information regarding whether defendants had
retained an expert and documents and reports related to the expert’s review of the
case. Defendants initially responded that no experts had been retained. Defendants
reserved the right to supplement and amend their responses. In fact, defendants had
an ongoing duty to supplement their responses under La. C.C.P. art. 1428. We
therefore find that the production of the expert report constituted a step in the
prosecution of the case.
25-C-299 2 Defendants argue that because the production was made during mediation it
does not constitute a step in the prosecution of the case under La. R.S. 9:4112 A.
Section A of this statute states “all oral and written communications and records
made during mediation, whether or not conducted under this Chapter and whether
before or after the institution of formal judicial proceedings, are not subject to
disclosure, and may not be used as evidence in any judicial or administrative
proceeding.” Section C, however, states:
C. The confidentiality provisions of this Section do not extend to statements, materials and other tangible evidence, or communications that are otherwise subject to discovery or are otherwise admissible, merely because they were presented in the course of mediation, if they are based on proof independent of any communication or record made in mediation. [Emphasis added.]
Here, defendants had an ongoing obligation, independent of any
communication in mediation, to supplement their responses to plaintiff’s
interrogatories and requests for production of documents. Defendants’ required
supplemental responses were provided independent of the mediation.
An expert report can clearly have a substantial impact on a case. Defendants’
use of an expert report requires production to plaintiff where plaintiff has issued
discovery requests relative thereto, defendants have responded in the negative, and
reserved their right to supplement. This obligation to supplement responses was an
ongoing obligation which had continued uninterrupted since the discovery had been
propounded.
Timing of Production of the Expert’s Report
Relators do not specifically argue the timing of production of the expert’s
report as a reason the report cannot interrupt the three-year abandonment period,
i.e., that production of the expert report came after the date that the rebuttable
presumption1 of abandonment began on February 4, 2025. However, because
1 Presumption of abandonment due to three years of inactivity is not conclusive. Clark, 785 So.2d at 787.
25-C-299 3 relators emphatically argue that abandonment is self-activating, and contend that no
step in the prosecution of the case occurred before the three-year period lapsed, we
address that issue to the extent that it is implicated by section “C” of the writ
application.
The Louisiana Supreme Court in Clark, supra, made clear that where there is
an interruption or waiver of abandonment occurring as a result of a “definite action”
of the defendant, the timing (whether during or after the abandonment period) is
irrelevant. The court in Clark stated:
Timing of Defendant’s Actions Constituting a Waiver 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 the defendant, although a defendant by ‘definite action’ may waive the abandonment.” Middleton, 526 So.2d at 860. That a defendant’s conduct occurred before the abandonment period elapsed as opposed to after is thus a distinction without a difference. The timing of a defendant’s conduct cannot logically be construed as altering its character insofar as whether it is sufficient to constitute a waiver of the right to plead abandonment. Logic dictates that the same standard for determining if action of the defendant results in waiver and thereby an interruption of abandonment should apply regardless of whether the conduct occurred before or after the abandonment period elapsed. [Internal emphasis added; heading as in original.] Clark, 785 So.2d at 789.
We conclude that the timing and circumstances of the tender of the expert
report on September 29, 2022 in the instant case was a “definite action” by
defendants, similar to and as contemplated in Clark. Therefore, the timing of it
is irrelevant.
25-C-299 4 CONCLUSION
For these reasons, we find that the trial court’s denial of defendants’ motion
to dismiss on grounds of abandonment was not erroneous. This result is consistent
with the doctrine that La. C.C.P. art. 561 is to be liberally construed in favor of
maintaining a plaintiff's suit, and that abandonment is not meant to dismiss actions
on mere technicalities. Clark, 785 So.2d at 785-86.
Based on the circumstances presented and applicable law, we find no error in
the trial court’s denial of defendants’ motion to dismiss. We therefore deny this writ.
WRIT DENIED
25-C-299 5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. TRAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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25-C-299 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) JEFFREY C. BRENNAN (RELATOR) LEILA A. D'AQUIN (RELATOR) JERRY W. SULLIVAN (RESPONDENT)
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