STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-356
SUCCESSION OF LINDA DIANN AYMOND ROBERTS
************
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 38,824 DIV “F” HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE
JAMES T. GENOVESE JUDGE
Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery, Judges.
Cooks, J., dissents and assigns reasons.
AFFIRMED.
Jeffrey L. Buelow In Proper Person 1710 Powell Lane Alexandria, Louisiana 71303 (318) 730-3302 William M. Ford Susan Ford Fiser The Ford Law Firm 1630 Metro Drive Alexandria, Louisiana 71301 (318) 442-8899 COUNSEL FOR APPELLEE: Donald Melvin Roberts GENOVESE, Judge.
Jeffrey L. Buelow appeals the trial court’s judgment dismissing his Petition
to Annul Judgment of Possession rendered in the succession of his mother, Linda
Diann Aymond Roberts, on the grounds of abandonment. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Linda Diann Aymond Roberts died on July 28, 2009. Mrs. Roberts was
married three times. Two children were born of Mrs. Roberts’ marriage to her first
husband, William Leo Buelow: namely, William Louis Buelow and Jeffrey Lee
Buelow, Plaintiff herein. These were Mrs. Roberts’ only children. Following a
divorce, Mrs. Roberts married and later divorced Walter Dugas. At the time of her
death, Mrs. Roberts was married to Donald Melvin Roberts.
Mrs. Roberts executed a Last Will and Testament on January 15, 1999,
designating Mr. Roberts as her executor. On August 26, 2009, Mr. Roberts opened
Mrs. Roberts’ succession in the Ninth Judicial District Court, in Rapides Parish,
without the appointment of an executor. On that same day, the trial court signed a
Judgment of Possession in Mrs. Roberts’ succession thereby completing and
closing the succession proceeding.
On May 26, 2010, Jeffrey Buelow filed a Petition to Annul Judgment of
Possession seeking to have the Judgment of Possession issued in his mother’s
succession declared a nullity. Mr. Buelow’s petition was assigned the same docket
number as the succession proceeding and was filed therein.
On June 16, 2010, Mr. Roberts filed a Dilatory Exception of Vagueness.
Following a hearing, the trial court sustained the exception and ordered Mr.
Buelow to amend his petition within fifteen days to remove and cure the defect in his pleadings. On August 9, 2010, the trial court signed an order dismissing Mr.
Buelow’s Petition to Annul Judgment of Possession since he failed to amend his
original pleading within the fifteen days as ordered.
Mr. Buelow filed a second Petition to Annul Judgment of Possession on
August 30, 2010. Mr. Roberts filed an answer thereto on November 18, 2010.
On October 24, 2014, Mr. Roberts filed a Motion to Dismiss on Ground of
Abandonment of Action. The trial court signed an order dismissing the Petition to
Annul Judgment of Possession on November 3, 2014.
Mr. Buelow, pro se, filed a Request Hearing on the Motion to Dismiss on
Ground of Abandonment of Action on November 19, 2014. Following a hearing,
the trial court reaffirmed its dismissal of Mr. Buelow’s action based on
abandonment and signed a concomitant judgment on January 5, 2015. From said
judgment, Mr. Buelow appeals.
ASSIGNMENT OF ERROR
Mr. Buelow contends that the trial court committed legal error in dismissing
his Petition to Annul Judgment of Possession on the grounds of abandonment.
LAW AND DISCUSSION
Louisiana Code of Civil Procedure Article 561 governs the abandonment of
a civil action providing, in relevant part, as follows:
A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, 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, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or
(c) In which a testament has been probated.
2 ....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
....
B. Any 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.
Under La.Code Civ.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.” La.Code Civ.P. art. 561(A)(1). “A party takes a ‘step’ in the prosecution
or defense of a suit when he takes formal action, before the court, intended to
hasten the matter to judgment. Chevron Oil Co. v. Traigle, 436 So.2d 530, 532
(La.1983).” Hercules Offshore, Inc. v. Lafayette Parish Sch. Bd., Sales & Use Tax
Dep’t, 14-701, p. 2 (La.App. 3 Cir. 2/11/15), 157 So.3d 1177, 1180. The court in
Clark v. Southern Tire Service, Inc., 00-1548, p. 2 (La.App. 5 Cir. 2/14/01), 782
So.2d 27, 28, explained:
The article is operative, and the dismissal effective, as soon as this interval has expired. An actual judgment is not necessary to ratify or confirm the fact of abandonment. See Camaille v. Shell Oil Co., 542 So.2d 663, 664 (La.App. 5 Cir.1989). Post abandonment actions are “inefficacious” to counteract application of the article. Semel v. Green, 252 La. 386, 394, 211 So.2d 300, 304 (La.1968). The record here shows without question that three years had passed between Appellee’s answer, filed in August of 1995, and the Clarks’ motion to compel answers to interrogatories, filed in March of 2000. The Clarks’ motion, therefore, could not revive the instant action, abandoned as of August 16, 1998.
3 The Louisiana Supreme Court in Murray v. Brown, 12-2149, p. 1 (La.
12/14/12), 102 So.3d 777, 778, noted “[o]nce abandonment has occurred, action by
the plaintiff cannot breathe new life into the suit. Clark v. State Farm Mut. Auto.
Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779.” This court, in Morgan v.
Louisiana Department of Public Safety & Corrections, 08-750, p. 3 (La.App. 3 Cir.
12/10/08), 24 So.3d 208, 211, writ denied, 09-2834 (La. 3/5/10), 28 So.3d 1012,
similarly wrote:
It is important to note that the abandonment provision is self- executing such that it occurs automatically upon the passing of three- years without a step being taken by either party, and it is effective without court order. La.Code Civ.P. art. 561; Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779.
On appeal, Mr. Buelow, who is representing himself, makes several
arguments as to why his dismissal on the grounds of abandonment was erroneous.
First, he contends that he took action in furtherance of the prosecution of his claim
which was sufficient to interrupt the three-year period found in La.Code Civ.P. art.
561. Specifically, Mr. Buelow asserts that a he filed a Notice of Deposition, and a
subpoena to appear for said deposition was issued on September 23, 2014;
therefore, the abandonment should be set aside. We find no merit to this
contention.
As counsel for Mr. Roberts notes, before the Notice of Deposition was filed
and the subpoena was issued, three years had already elapsed, and the Petition to
Annul Judgment of Possession was automatically abandoned under La.Code Civ.P.
art. 561. We agree and find the record establishes that, after the initial filing of the
Petition to Annul the Judgment of Possession, three years elapsed without a step
being taken in the prosecution of the case. Mr. Buelow’s subsequent action does
4 not serve to “revive” the action. Clark v. S. Tire Serv., Inc., 782 So.2d at 28;
Murray, 102 So.3d 777.
We also find Mr. Buelow’s argument that his attorney allegedly failed to
advance his interests is not a factor that serves to defeat a dismissal based on
abandonment. Mr. Buelow had three years to check on the status of his case, yet
failed to do so until over three years had passed with no action being taken. The
court in Matthews v. Fontenot, 99-484, p. 3 (La.App. 4 Cir. 9/29/99), 745 So.2d
691, 693, addressed a similar argument of attorney neglect, and stated:
Similarly, the plaintiffs’ allegations of attorney neglect and/or misconduct are insufficient, even if proven, to avoid a judgment of dismissal for abandonment. Although an exception to the operation of Article 561 has been recognized when the failure to prosecute results from circumstances beyond the party’s control, this court has previously ruled that an attorney’s inaction does not fall within this exception. Courtney v. Henderson, 602 So.2d 95, 96-97 (La.App. 4th Cir.1992); see also Willey v. Roberts, 95-1037, p. 6 (La.App. 1st Cir.12/15/95), 664 So.2d 1371, 1376, writ denied, 96-0164 (La.3/15/96), 669 So.2d 422; Haisty v. State DOTD, 25,670, pp. 2-4 (La.App. 2d Cir.3/30/94), 634 So.2d 919, 921-22. Therefore, this argument for reversal of the judgment below is unavailing.
Thus, even assuming that there was attorney neglect on the part of Mr. Buelow’s
prior counsel, this does not serve to avoid the entry of a judgment of dismissal on
the grounds of abandonment.
Mr. Buelow also argues that his Petition to Annul Judgment of Possession
was erroneously dismissed on the grounds of abandonment because it falls within
the exception contained in La.Code Civ.P. art. 561(A)(1), which provides an
exception to the three-year period for abandonment if “it is a succession
proceeding: (a) Which has been opened; (b) In which an administrator or executor
has been appointed; or (c) In which a testament has been probated.” We find that
this exception is inapplicable in this case.
5 The record reflects that the succession of Mrs. Roberts was opened and
completed on August 26, 2009, that no administrator or executor was appointed,
and that the testament was probated on the same date, along with the trial’s court
signing a Judgment of Possession. Therefore, two of the three requirements
contained in La.Code Civ.P. art. 561(A)(1) are satisfied. However, we do not
agree with Mr. Buelow that his Petition to Annul Judgment of Possession is “a
succession proceeding.” Id.
Our conclusion herein is supported by the following jurisprudence cited by
Mr. Roberts in his brief to this court. The second circuit has considered this issue
in the matters of Succession of Knox, 579 So.2d 1164 (La.App. 2 Cir. 1991), and
Succession of Wright, 37,670 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, writ denied,
03-2969 (La. 1/16/04), 864 So.2d 632.
In Succession of Knox, 579 So.2d 1164, following the death of Ms. Knox,
her will was probated and the heirs were put into possession on August 31, 1983.
On March 14, 1984, Ms. Williams, who was not an heir, filed a Petition for Nullity
of the Judgment within the succession proceeding. The heirs answered and
reconvened on April 10, 1984. On April 25, 1989, pursuant to an ex parte motion,
the trial court dismissed the Petition for Nullity of the Judgment on the grounds of
abandonment. Thereafter, Ms. Williams filed a petition seeking to have the trial
court’s dismissal of her suit set aside, and the heirs responded with an exception of
no cause of action. The trial court sustained the exception, and Ms. Williams
appealed. On appeal, the second circuit considered “whether the trial court erred in
6 dismissing plaintiff’s petition to nullify the judgment of possession for failure to
take any step in its prosecution for five years.”1 Id. at 1165. Discussing La.Code
Civ.P. art. 561, the court reasoned as follows:
A suit for nullity of a judgment of possession is not a succession proceeding as described in [La.Code Civ.P. art.] 561(A) and is subject to the five year abandonment rule. See and compare Succession of Kinchen, 391 So.2d 1278 (La.App. 1st Cir.1980), in which a petition filed after rendition of a judgment of possession in an intestate succession was dismissed as abandoned under the provisions of [La.Code Civ.P. art.] 561. In Succession of John Everett Overton, Sr., 422 So.2d 1356 (La.App. 1st Cir.1982), an action to set aside a sale to one of decedent’s children as a donation in disguise and to return the property to the mass of the father’s estate was dismissed under [La.Code Civ.P. art.] 561 for failure to prosecute even though it related to a succession proceeding.
Id. at 1166 (footnote omitted). Thus, the second circuit found no error in the trial
court’s grant of the exception of no cause of action and held that “[t]he ex parte
motion to dismiss the original action to nullify the judgment of possession for
failure to prosecute was in order.” Id. at 1167.
In Succession of Wright, 855 So.2d at 928, the second circuit cited
Succession of Knox, and reiterated that “[a]n action for nullity of a judgment of
possession is not such a succession proceeding as contemplated in [La.Code Civ.P.
art. 561(A)(1),] and is subject to the three year abandonment rule.” The court
went on to opine: “The exception in [La.Code Civ.P.] art. 561 applies to
uncontested opened successions and recognizes that uncontested proceedings may
remain open for years while assets are collected and managed. There is no
1 Louisiana Code of Civil Procedure Article 561 was amended in 1997 to change the abandonment period from five to three years.
7 prosecution or defense under these circumstances. Succession of Mexic, 97-1745
(La.App. 4th Cir.04/08/98), 712 So.2d 223.” Id.2
In this case, we find that Mr. Buelow failed to take a step in the prosecution
of this action within La.Code Civ.P. art. 561’s requisite three-year period. His
efforts relative to the taking of the deposition were done after the three-year period
had run and did not serve to preclude the granting of the ex parte motion for
abandonment. Murray, 102 So.3d 777; Clark v. S. Tire Serv., Inc., 782 So.2d 27.
Any allegation of his lawyer’s negligence being the cause of his failure to act does
not change this result. Matthews, 745 So.2d 691. Finally, the present Petition to
Annul Judgment of Possession is not a succession proceeding pursuant to La.Code
Civ.P. art. 561, the succession having been opened and completed on August 26,
2009. Succession of Knox, 579 So.2d 1164; Succession of Wright, 855 So.2d 926.
This was not an active and ongoing succession during the three-year abandonment
period. Therefore, for the foregoing reasons, we find no error in the trial court’s
judgment dismissing Mr. Buelow’s petition on the grounds of abandonment.3
2 In reaching our conclusion herein, we are mindful of Succession of Mizell, 97-127, p. 3 (La.App. 1 Cir. 2/20/98), 708 So.2d 805, 806, n.4, writ denied, 98-1056 (La. 5/29/98), 720 So.2d 670, in which, in dicta, the first circuit stated: “The trial court erred in concluding that Mr. Jarrell’s petition to annul the probated testament was not excepted from the 5-year abandonment rule of La.[Code Civ.P.] art. 561, as his petition was part of the succession proceeding filed herein.” However, the first circuit acknowledged that it did not actually reach that issue, since it found that Mr. Jarrell’s challenge to the dismissal on the grounds of abandonment was itself untimely, having been filed over three years after the trial court dismissed his petition to annul a probated testament. Moreover, in Succession of Mizell, although the testament had been probated, other matters were still being contested including whether Mr. Jarrell was actually married to the decedent; thus, the succession proceeding had not yet been concluded. 3 In Gravlee v. Gravlee, 11-509, pp. 2-3 (La.App. 3 Cir. 12/7/11), 79 So.3d 1169, 1172, this court has stated the appropriate standard of review as follows:
Whether a party has taken a step in the prosecution of a case is a question of fact, subject to a manifest error standard of review. Gueldner v. Allstate Ins. Co., 09-720 (La.App. 3 Cir. 2/10/10), 30 So.3d 1143 (citing Hutchison v. Seariver Mar., Inc., 09-410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, writ denied, 09-2216 (La. 12/18/09), 23 So.3d 946). On the other hand, whether the act precludes abandonment is a question of law that is reviewed de novo. Id.
8 DECREE
For the reasons assigned, the judgment of the trial court dismissing Jeffrey
L. Buelow’s Petition to Annul Judgment of Possession on the grounds of
abandonment is affirmed. Costs of this appeal are assessed to Jeffrey L. Buelow.
9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
SUCCESSION OF LINDA AYMOND ROBERTS
COOKS, J., dissenting.
I respectfully dissent from the majority’s affirmance of the trial court’s
judgment dismissing Mr. Buelow’s petition to annul the judgment of possession on
the grounds of abandonment. I find merit in Mr. Buelow’s argument that his
petition to annul cannot be dismissed on abandonment grounds because it fits into
the Article 561 exception for succession proceedings. Article 561 clearly provides
an exception to an abandonment proceeding for “a succession proceeding: (1)
Which has opened; (2) In which an administrator or executor has been appointed;
or (3) In which a testament has been probated.” In this case, although Linda
Robert’s testament designated Donald Roberts as her executor, no executor was
appointed nor confirmed by the trial court. The succession was opened on August
26, 2009, and a Judgment of Possession was signed and entered in the succession
proceeding by the district judge that same day, completing and closing the probate
proceeding. Concerning the three listed characteristics set forth, Article 561
clearly states “or,” thus indicating not all three are required for the exception to be
applicable. As two of the three are met in this case (on its face), it appears the
exception is applicable here.
The majority disagrees that the exception applies herein, pointing to the case
of Succession of Knox, 579 So.2d 1164, 1166 (La.App. 2 Cir. 1991), as indicative
that “[a] suit for nullity of a judgment of possession is not a succession proceeding
as described in [La.Code Civ.P.] Art. 561(A) and is subject to the five year abandonment rule.”1 This opinion was cited favorably in another second circuit
case, Succession of Wright, 37,670 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, writ
denied, 03-2969 (La. 1/16/04), 864 So.2d 632, which also cited a fourth circuit
case, Succession of Mexic, 97-1745, p. 3 (La.App. 4 Cir. 04/08/98), 712 So.2d 223,
224, wherein that court opined that the exception in La.Code Civ.P. art. 561 “for
opened successions is in recognition of the fact that uncontested succession
proceedings may remain open for years while assets are collected and managed,
and as nothing is contested, there is no prosecution or defense under these
circumstances.” The court in Mexic adopted a very restrictive reading of the
exception provided in Article 561, concluding:
It is the succession proceeding itself that is referred to in [Article] 561, not proceedings within the succession proceeding that are contested. Cf. Succession of Knox, 579 So.2d 1164 (La.App. 2 Cir.1991). The judgment of the trial court that is the subject of this appeal did not dismiss the succession. It merely dismissed a contested action within the succession that was abandoned.
Id. at 225. I respectfully disagree with the above view for several reasons. Initially, the
statute and comments do not expressly provide that any and all “contested”
proceedings arising out of an opened succession are excluded from the Article 561
exception for succession proceedings. If the legislature had desired to exclude
“proceedings within the succession proceeding that are contested” from the
exception provided in Article 561, it could have clearly stated such.
Secondly, “[t]he jurisprudence has uniformly held that [Article] 561 is to be
liberally construed to maintain a plaintiff’s suit.” Clark v. State Farm Mut. Auto.
Ins. Co, 785 So.2d at 785. The off-quoted statement by the court in Kanuk v.
Pohlmann, 338 So.2d 757, 758, (La.App. 4 Cir. 1976), writ denied, 341 So.2d 420
(La.1977), set forth the reasoning behind the liberal construction of Article 561:
1 Article 561 was amended in 1997 to change the abandonment period from five to three years. 2 The purpose of [Article] 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff's inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. The Louisiana Supreme Court in Clark v. State Farm Mut. Auto. Ins. Co., 785
So.2d at 785 (footnotes omitted), noted that in adhering to the language in Kanuk,
“the appellate courts have declined to allow form to prevail over substance in
determining whether an action has been abandoned. This court has likewise
declined to allow suits to be dismissed as abandoned based on technical
formalities.” The Clark court went on to conclude “abandonment is not meant to
dismiss actions on mere technicalities, but to dismiss actions which in fact clearly
have been abandoned.” Id. The law is clear that for the purpose of determining
abandonment, "the intent and substance of a party’s actions matter far more than
technical compliance.” Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy
Haulers, 11-912, p. 4 (La. 12/6/11), 79 So.3d 978, 982. If the plaintiff has clearly
demonstrated before the court during the prescribed period that he does not intend
to abandon his lawsuit, dismissal is not warranted. Wilkerson v. Buras, 13-1328
(La.App. 1 Cir. 8/12/14), 152 So.3d 969.
I also note, in contrast to the cases of Succession of Knox, Succession of
Wright and Succession of Mexic, there is case law that takes a different view of
whether a petition to annul a judgment of possession is a succession proceeding as
described in Article 561.
In Succession of Mizell, the appellant challenged a trial court judgment
dismissing his petition to annul a probated testament based on the trial court’s
conclusion that the action had been abandoned. In that case, Alda Mizell died on
October 16, 1986. On December 3, 1986, Joseph Jarrell, claiming he was Ms.
Mizell’s husband, filed a petition to be appointed administrator of the succession,
3 which was granted by order of the trial court on December 9, 1986. On February
27, 1987, Floyd Mizell, Ms. Mizell’s son, filed a petition for probate of an
olographic testament allegedly written by Ms. Mizell, in which she left all of her
property to Mr. Mizell and named him executor of her estate. The trial court
ordered the testament be executed on March 2, 1987. Subsequently, on May 29,
1987, Mr. Jarrell filed a petition to annul the probated testament, claiming it was
not in Ms. Mizell’s handwriting. Mr. Jarrell also claimed entitlement to one-fourth
of Ms. Mizell's estate pursuant to La.Civ.Code art. 2432, which provided for a
necessitous surviving spouse to make a claim for the marital portion of the
succession. On September 21, 1987, Mr. Mizell filed a petition for appointment as
executor of his mother’s estate, which was granted by order of the trial court dated
September 22, 1987. Ten days later, Mr. Mizell answered Mr. Jarrell’s petition to
annul, generally denying the allegations of Mr. Jarrell’s petition. By petition filed
on September 19, 1988, Mr. Jarrell sought to have his entitlement to the marital
portion recognized.
On May 18, 1993, Mr. Mizell filed a motion to have Mr. Jarrell’s petition to
annul the probated testament dismissed, because more than five years elapsed
without any steps in the prosecution or defense of the action having been taken.
The trial court granted the motion on May 20, 1993, ordering the petition
dismissed. Over three years later, on June 20, 1996, Mr. Jarrell filed a rule to show
cause why the judgment of dismissal should not be annulled. On November 21,
1996, the trial court signed a judgment dismissing Mr. Jarrell’s rule to show cause.
From this adverse judgment, Mr. Jarrell appealed, contending that the trial court
erred in applying La.Code Civ.P. art. 561 to determine that his action to annul the
probated testament was abandoned. Mr. Mizell answered the appeal, contending
that the trial court judgment should be reversed insofar as it declared that Mr.
Jarrell was married to Ms. Mizell.
4 The court in Mizell, in its holding, did not directly address whether the trial
court correctly dismissed Mr. Jarrell’s petition to annul the probated testament on
the grounds of abandonment, because it found Mr. Jarrell’s challenge to the May
20, 1993 order of dismissal was untimely. However, pertinent to the issue before
us, the court in Mizell wrote:
Although we need not address the merits of Mr. Jarrell’s appeal to decide this case, we note that if Mr. Jarrell had timely challenged the trial court’s dismissal of his petition to annul the probated testament, he would have prevailed. The trial court erred in concluding that Mr. Jarrell's petition to annul the probated testament was not excepted from the 5-year abandonment rule of [Article] 561, as his petition was part of the succession proceeding filed herein. Id. at 806 (emphasis added). Thus, the court in Mizell, albeit in dicta, clearly found
the petition to annul the succession proceeding was part of the succession
proceeding as contemplated by Article 561.
I also find compelling this court’s finding in Succession of Bernat, 13-277
(La.App. 3 Cir. 10/9/13), 123 So.3d 1277, writ denied, 13-2640 (La.2/7/14), 131
So.3d 865, that a petition to annul is rooted in the execution and interpretation of
the testament of the decedent. Although, not discussing the issue of abandonment,
this court noted:
We also find that the suit for declaratory judgment and the petition to annul the will find their basis rooted in the execution and interpretation of Frank Bernat’s will. Therefore, both actions arise out of the same transaction or occurrence. Id. at 1284. I find a similar situation herein. The petition to annul filed by Mr.
Buelow is obviously rooted in and arises out of the succession proceeding opened
on August 26, 2009. Further evidencing this, is the fact a new suit number was not
assigned to the petition to annul, but rather the probate proceeding number was
used.
Accordingly, I would conclude the trial court erred in dismissing Mr.
Buelow’s petition to annul on the grounds of abandonment. Mr. Buelow’s petition
5 to annul the probated testament should have been excepted from the three year
abandonment rule of Article 561, as that petition was part of the succession
proceeding. This finding is consistent with the well-settled principles that Article
561 is to be liberally construed and that “any reasonable doubt about abandonment
should be resolved in favor of allowing the prosecution of the claim.” Dean v.
Delacroix Corp., 12-917, p. 8 (La.App. 4 Cir. 12/26/12), 106 So.3d 283, 288
(citing Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d at 787). Therefore, I
dissent from the majority opinion and would reverse the trial court’s judgment and
remand for further proceedings.