STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1179
VIRGINIA JOHNSON
VERSUS
CALCASIEU PARISH SHERIFF’S DEPARTMENT, ET AL.
CONSOLIDATED WITH
06-1180
LONNIE KEMP
VERSUS
CALCASIEU PARISH SHERIFF’S DEPARTMENT, ET AL.
************
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2001-4193 & 2001-4881 HONORABLE ARTHUR J. PLANCHARD, PRO TEMPORE JUDGE
************
JIMMIE C. PETERS JUDGE
************
Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan, Judges.
AFFIRMED.
John F. Lavern Attorney at Law 1111 Ryan Street Lake Charles, LA 70602 (337) 433-1116 COUNSEL FOR PLAINTIFF/APPELLEE: Virginia Johnson Stephen C. Dwight Dwight Law Firm 1400 Ryan Street Lake Charles, LA 70601 (337) 439-3138 COUNSEL FOR DEFENDANTS/APPELLANTS: Calcasieu Parish Sheriff’s Department, et al.
Robert C. McCall Baggett, McCall, Burgess, Watson & Gaughan 3006 Country Club Road Lake Charles, LA 70606 (337) 478-8888 COUNSEL FOR PLAINTIFF/APPELLEE: Lonnie Kemp PETERS, J.
Beth Lundy, the former sheriff of Calcasieu Parish, appeals the trial court’s
judgment setting aside its prior judgment dismissing the plaintiffs’ suits against her
in two consolidated cases. For the following reasons, we affirm the trial court
judgment in all respects.
DISCUSSION OF THE RECORD
Virginia Johnson and Lonnie Kemp brought suit in separate actions against
Beth Lundy in her capacity as sheriff of Calcasieu Parish, seeking a $100,000.00
judgment against the sheriff. The $100,000.00 at issue represents the amount of a
reward offered by Ms. Lundy’s predecessor in office, Wayne F. McElveen,1 for
information leading to the arrest and conviction of the person or persons responsible
for a triple homicide that occurred in Calcasieu Parish on July 6, 1997. Former
Sheriff McElveen posted the reward notice on July 1, 1998. The notice set forth the
names of the three victims and the place and date of the homicides and contained the
instructions on how to provide information and make a claim for the $100,000.00
cash reward.
Thereafter, the State of Louisiana charged Thomas F. Cisco with the three
murders. After a nine-day trial that began on October 9, 2000, a jury convicted Cisco
of three counts of first degree murder. Ms. Johnson filed suit on August 17, 2001,
asserting that she had provided information leading to the arrest and conviction of
Cisco and that she was entitled to the reward. Lonnie Kemp filed a similar suit
seeking the same relief on September 27, 2001. In both suits, the plaintiffs asserted
that they had complied with all the requirements and conditions of the reward offer.
1 Sheriff McElveen left office in 2000. Sheriff Lundy became sheriff in July 2000. She, in turn, was replaced in July 2004 by the current Sheriff Tony Mancuso. After issue was joined in both suits, they were consolidated by a judgment
signed on April 18, 2002. Notice of this judgment of consolidation was mailed to the
parties on April 30, 2002. The plaintiffs took no further steps in the prosecution of
their claims, and the litigation remained dormant until January 24, 2006, when Sheriff
Lundy filed a motion to dismiss the actions pursuant to La.Code Civ.P. art. 561,
asserting that the actions had been abandoned. In response to that motion, the trial
court issued a formal order of dismissal on January 25, 2006, dismissing both actions.
Thereafter, the plaintiffs filed motions to set aside the order of dismissal. After a
hearing, the trial court granted the plaintiffs’ motions. It is this action of the trial
court that Sheriff Lundy appeals.
OPINION
Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part
that “[a]n 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.” The party seeking dismissal
on the basis of abandonment may file an ex parte motion “by affidavit which provides
that no step has been taken for a period of three years in the prosecution or defense
of the action.” La.Code Civ.P. art. 561(A)(2). In that event, “the trial court shall
enter a formal order of dismissal as of the date of its abandonment.” Id. (emphasis
added).2 Thereafter, the party against whom the ex parte judgment has been rendered
may, “within thirty days of the date of the sheriff’s service of the order of dismissal,”
file a motion to set aside the dismissal order. La.Code Civ.P. art. 561(A)(3).3
2 It is undisputed that Sheriff Lundy’s dismissal motion complied with this provision. 3 It is also undisputed that the plaintiffs timely complied with this provision.
2 Whether the plaintiffs’ suits were abandoned is a question of law. Olavarrieta
v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, writ denied, 05-1557
(La. 12/16/05), 917 So.2d 1118. Thus, when an appellate court reviews a question
of law the standard of review is simply whether the lower court’s interpretive decision
is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412,
writ denied, 05-2444 (La. 3/24/06), 925 So.2d 1231.
It is not disputed by the plaintiffs that they took no steps toward the
prosecution of their claims after their suits were consolidated on April 18, 2002.
Thus, more than three years had lapsed since the last step in the prosecution of their
claims when Sheriff Lundy filed her motion to dismiss. However, the plaintiffs assert
that they were prevented from pursuing their claims because Cisco’s conviction had
been reversed by the Louisiana Supreme Court.4 In making this argument, the
plaintiffs point to the language of the reward notice itself which provided that “[i]n
order to receive payment for the reward, the person or persons responsible for the
crime must be convicted of the crimes, unless the Sheriff makes a finding, in his sole
discretion, of impossibility of conviction due to the death or incapacity of such person
or persons.” (Emphasis added.) The trial court agreed, and we find no legal error in
that judgment.
Abandonment of an action is a species of liberative prescription. Melancon v.
Cont’l Cas. Co., 307 So.2d 308 (La.1975). Given the prescriptive nature of the
action, our jurisprudence has long recognized that, where the cause of the failure to
pursue a claim is due to matters beyond a plaintiff’s control, the prescriptive period
does not run. Barton v. Burbank, 138 La. 997, 71 So. 134 (1916); Bell v. Staring, 170
4 In State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, the supreme court reversed Cisco’s conviction and remanded the matter to the trial court for a new trial.
3 So. 502 (La.App. 1 Cir. 1936). In that regard, our courts have specifically found that
the doctrine of contra non valentem applies when failure to prosecute is caused by
circumstances beyond the plaintiff’s control. Clark v. State Farm Mut. Auto. Ins. Co.,
00-3010 (La. 5/15/01), 785 So.2d 779.
When the plaintiffs filed their individual suits, Cisco had been convicted, but
his conviction was not final. Because Cisco’s conviction was overturned by the
supreme court, his retrial is in the sole discretion of the Calcasieu Parish District
Attorney. La.Code Crim.P. art. 61. Thus, the plaintiffs’ failure to prosecute their
action to completion is caused by circumstances beyond their control.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1179
VIRGINIA JOHNSON
VERSUS
CALCASIEU PARISH SHERIFF’S DEPARTMENT, ET AL.
CONSOLIDATED WITH
06-1180
LONNIE KEMP
VERSUS
CALCASIEU PARISH SHERIFF’S DEPARTMENT, ET AL.
************
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2001-4193 & 2001-4881 HONORABLE ARTHUR J. PLANCHARD, PRO TEMPORE JUDGE
************
JIMMIE C. PETERS JUDGE
************
Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan, Judges.
AFFIRMED.
John F. Lavern Attorney at Law 1111 Ryan Street Lake Charles, LA 70602 (337) 433-1116 COUNSEL FOR PLAINTIFF/APPELLEE: Virginia Johnson Stephen C. Dwight Dwight Law Firm 1400 Ryan Street Lake Charles, LA 70601 (337) 439-3138 COUNSEL FOR DEFENDANTS/APPELLANTS: Calcasieu Parish Sheriff’s Department, et al.
Robert C. McCall Baggett, McCall, Burgess, Watson & Gaughan 3006 Country Club Road Lake Charles, LA 70606 (337) 478-8888 COUNSEL FOR PLAINTIFF/APPELLEE: Lonnie Kemp PETERS, J.
Beth Lundy, the former sheriff of Calcasieu Parish, appeals the trial court’s
judgment setting aside its prior judgment dismissing the plaintiffs’ suits against her
in two consolidated cases. For the following reasons, we affirm the trial court
judgment in all respects.
DISCUSSION OF THE RECORD
Virginia Johnson and Lonnie Kemp brought suit in separate actions against
Beth Lundy in her capacity as sheriff of Calcasieu Parish, seeking a $100,000.00
judgment against the sheriff. The $100,000.00 at issue represents the amount of a
reward offered by Ms. Lundy’s predecessor in office, Wayne F. McElveen,1 for
information leading to the arrest and conviction of the person or persons responsible
for a triple homicide that occurred in Calcasieu Parish on July 6, 1997. Former
Sheriff McElveen posted the reward notice on July 1, 1998. The notice set forth the
names of the three victims and the place and date of the homicides and contained the
instructions on how to provide information and make a claim for the $100,000.00
cash reward.
Thereafter, the State of Louisiana charged Thomas F. Cisco with the three
murders. After a nine-day trial that began on October 9, 2000, a jury convicted Cisco
of three counts of first degree murder. Ms. Johnson filed suit on August 17, 2001,
asserting that she had provided information leading to the arrest and conviction of
Cisco and that she was entitled to the reward. Lonnie Kemp filed a similar suit
seeking the same relief on September 27, 2001. In both suits, the plaintiffs asserted
that they had complied with all the requirements and conditions of the reward offer.
1 Sheriff McElveen left office in 2000. Sheriff Lundy became sheriff in July 2000. She, in turn, was replaced in July 2004 by the current Sheriff Tony Mancuso. After issue was joined in both suits, they were consolidated by a judgment
signed on April 18, 2002. Notice of this judgment of consolidation was mailed to the
parties on April 30, 2002. The plaintiffs took no further steps in the prosecution of
their claims, and the litigation remained dormant until January 24, 2006, when Sheriff
Lundy filed a motion to dismiss the actions pursuant to La.Code Civ.P. art. 561,
asserting that the actions had been abandoned. In response to that motion, the trial
court issued a formal order of dismissal on January 25, 2006, dismissing both actions.
Thereafter, the plaintiffs filed motions to set aside the order of dismissal. After a
hearing, the trial court granted the plaintiffs’ motions. It is this action of the trial
court that Sheriff Lundy appeals.
OPINION
Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part
that “[a]n 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.” The party seeking dismissal
on the basis of abandonment may file an ex parte motion “by affidavit which provides
that no step has been taken for a period of three years in the prosecution or defense
of the action.” La.Code Civ.P. art. 561(A)(2). In that event, “the trial court shall
enter a formal order of dismissal as of the date of its abandonment.” Id. (emphasis
added).2 Thereafter, the party against whom the ex parte judgment has been rendered
may, “within thirty days of the date of the sheriff’s service of the order of dismissal,”
file a motion to set aside the dismissal order. La.Code Civ.P. art. 561(A)(3).3
2 It is undisputed that Sheriff Lundy’s dismissal motion complied with this provision. 3 It is also undisputed that the plaintiffs timely complied with this provision.
2 Whether the plaintiffs’ suits were abandoned is a question of law. Olavarrieta
v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, writ denied, 05-1557
(La. 12/16/05), 917 So.2d 1118. Thus, when an appellate court reviews a question
of law the standard of review is simply whether the lower court’s interpretive decision
is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412,
writ denied, 05-2444 (La. 3/24/06), 925 So.2d 1231.
It is not disputed by the plaintiffs that they took no steps toward the
prosecution of their claims after their suits were consolidated on April 18, 2002.
Thus, more than three years had lapsed since the last step in the prosecution of their
claims when Sheriff Lundy filed her motion to dismiss. However, the plaintiffs assert
that they were prevented from pursuing their claims because Cisco’s conviction had
been reversed by the Louisiana Supreme Court.4 In making this argument, the
plaintiffs point to the language of the reward notice itself which provided that “[i]n
order to receive payment for the reward, the person or persons responsible for the
crime must be convicted of the crimes, unless the Sheriff makes a finding, in his sole
discretion, of impossibility of conviction due to the death or incapacity of such person
or persons.” (Emphasis added.) The trial court agreed, and we find no legal error in
that judgment.
Abandonment of an action is a species of liberative prescription. Melancon v.
Cont’l Cas. Co., 307 So.2d 308 (La.1975). Given the prescriptive nature of the
action, our jurisprudence has long recognized that, where the cause of the failure to
pursue a claim is due to matters beyond a plaintiff’s control, the prescriptive period
does not run. Barton v. Burbank, 138 La. 997, 71 So. 134 (1916); Bell v. Staring, 170
4 In State v. Cisco, 01-2732 (La. 12/3/03), 861 So.2d 118, the supreme court reversed Cisco’s conviction and remanded the matter to the trial court for a new trial.
3 So. 502 (La.App. 1 Cir. 1936). In that regard, our courts have specifically found that
the doctrine of contra non valentem applies when failure to prosecute is caused by
circumstances beyond the plaintiff’s control. Clark v. State Farm Mut. Auto. Ins. Co.,
00-3010 (La. 5/15/01), 785 So.2d 779.
When the plaintiffs filed their individual suits, Cisco had been convicted, but
his conviction was not final. Because Cisco’s conviction was overturned by the
supreme court, his retrial is in the sole discretion of the Calcasieu Parish District
Attorney. La.Code Crim.P. art. 61. Thus, the plaintiffs’ failure to prosecute their
action to completion is caused by circumstances beyond their control.
Sheriff Lundy argues on appeal that the doctrine of contra non valentem as an
exception to the interruption of the abandonment period is limited to only two
circumstances—a plaintiff’s service in the United States Military or his confinement
to a mental institution. While we note that in Pounds v. Yancy, 224 So.2d 1 (La.App.
1 Cir.), writ denied, 254 La. 810, 227 So.2d 145 (1969), these two circumstances
were listed as examples of exceptions, we do not find that they are exclusive. In fact,
policy considerations require that La.Code Civ.P. art. 561 be liberally construed in
favor of maintaining a plaintiff’s suit. Clark, 785 So.2d 779. Abandonment is not
meant to dismiss actions on mere technicalities, but to dismiss actions which in fact
clearly have been abandoned. Id. The presumption of abandonment that arises under
La.Code Civ.P. art. 561 as a result of three years of litigation inactivity is not
conclusive. Id. Dismissal being 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.
4 Sheriff Lundy next argues that the plaintiffs could and should have protected
their rights by obtaining a stay order. This argument is equally without merit. As
noted in Faust v. Greater Lakeside Corp., 03-808 (La.App. 4 Cir. 11/26/03), 861
So.2d 716, writ denied, 04-424 (La. 4/2/04), 869 So.2d 887, it would have been a
useless gesture for the plaintiffs to have obtained a stay of proceedings and left it in
place as an explanation for their failure to take action in the cases, when the actual
reason thwarting their ability to take action was a matter well understood by all
parties to be entirely beyond the plaintiffs’ control.
DISPOSITION
For the foregoing reasons, we affirm the trial court judgment in all respects and
tax all costs of this appeal to Beth Lundy, sheriff of Calcasieu Parish, Louisiana, in
the amount of $482.20 as required by La.R.S. 13:5112.
AFFIRMED.