I agree with the lead opinion that a reversal of the trial court is warranted in this case, and I concur in the result. However, I disagree with the majoritys decision and finding that Plaintiffs Assignment of Error #1 is without merit.
I. December 2020 Communications: Interruption of Abandonment
The central issue presented by Ms. Benjamins first assigned error is whether, as a matter of law, factually undisputed communications among the parties in December 2020, interrupted the three-year abandonment period.
The parties concur as to the last “step” taken in the trial proceedings, but they differ as to whether the last “step” taken in the prosecution or defense of the case occurred October 1, 2018, or December 4, 2020.
Defendants maintain that the last “step” was Ms. Benjamins service of supplemental discovery responses sent via certified mail, dated September 27, 2018, and received on October 1, 2018. If Defendants’ argument is correct, Benjamins case became abandoned as of October 1, 2021, mandating our affirmation of the trial courts judgment.
Contrarily, Plaintiff argues that the last “step” occurred by virtue of discovery related communications, and other exchanges, among the parties commencing December 4, 2020. If Plaintiffs argument is correct, then as a matter of law, the three-year abandonment period would have been extended to December 2023, rendering the trial courts Ex Parte Order premature, and requiring its reversal.
With issue joined, this panels focus should then turn, as to Plaintiffs Assignment of Error #1, to whether the parties’ December 2020 communications tolled the running of the three-year abandonment period.
As the Louisiana Supreme Court stated in Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01) at pp. 5-6, 785 So.2d 779, 784:
Article 561 has been construed as imposing three requirements on plaintiffs. 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 the 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 party; sufficient action by either plaintiff or defendant will be deemed a step.
The generally prevailing rules pertaining to abandonment are set forth in La. Code of Civ. P. article 561, excerpted here with emphasis:
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 ․
(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. ․
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.
Additionally, Article 561 (B) of this provision is especially relevant to when the sharing of discovery related matters constitutes a “step” in the prosecution or defense of an action. So is La. Code of Civ. P. article 1474 (C)(4), as if to essentially underscore the point: “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.”
At the heart of this assignment of error lies the latter exception. Defendants maintain that the last “step” Ms. Benjamin took occurred October 1, 2018, when Appellants service of supplemental discovery responses was received by Defendant, thus meaning her case was legally abandoned as of October 1, 2021, six weeks prior to Defendant filing its November 12, 2020, Motion to Dismiss.
Plaintiff argues that she took a “step” long after October 1, 2018, via discovery related communications among the parties in December 2020, thus extending her three-year abandonment period to December 2023, well beyond Defendants Motion to Dismiss filed November 12, 2021, thus rendering said Order of Dismissal premature and invalid.
Therefore, the merits of Plaintiffs first assigned error turn exclusively on whether her counsels communication of December 2020, or Defense counsels response, prior to Dismissal Order was signed, along with Plaintiffs transmission of supplemental discovery and medical records in November 2021, shortly after the Dismissal was signed, interrupted the three-year tolling and abandonment.
The record and evidence before us contain plaintiff counsels December 4, 2020, correspondence emailed to Defendants, the pertinent part of which states:
Regarding my client, Ms. Benjamin, I have additional medical information to provide you as a means of supplementing the responses to your interrogatories and the request for production of documents, which should be forth coming within the next two weeks.
Toward the objective of concluding this matter, I contacted the docket clerk for some possible jury trial dates in 2021. The dates available are:
1. June 28 (currently 2nd fixing).
2. August 9 (currently 3rd fixing)
3. November 15 (currently – 1st fixing);
I would appreciate your reviewing your calendar and letting me know which of the date(s) are convenient for you, so we may have the matter calendared. If any questions, please feel free to inquire.
In response, Defendants emailed separate replies, both captioned “Mona Lisa Benjamin v Cajundome Commission, et al – Trial Setting.” The record demonstrates that Mr. James Mayer, counsel for Schindler Elevator, replied to Plaintiffs counsel with a copy to all counsel, on December 8, 2020, and states (emphasis added):
Date: Tuesday, December 8, 2020, 06:02 PM CST
Mr. Dangerfield,
It was good to hear from you. The last time our office heard from you was on September 27, 2018, when you provided a supplemental document production. In your letter of December 7, 2020, you state you have additional medical information you are going to provide to me “as a means of further supplementing the responses to interrogatories and the request for production of documents, which should be forth coming within the next two weeks.”
Until I receive and review the documents, I cannot agree to setting this case for trial. Further, before I can agree to scheduling a trial date, I need to take an updated deposition of the plaintiff. She was last deposed on December 4, 2015, and based on your representations, Ms. Benjamin has undergone additional medical treatment. After I receive the supplemental records and depose Ms. Benjamin, we can contact the court about setting a trial date. Alternatively, we can contact the court to schedule a Status Conference to set deadlines, but not a trial date. I look forward to moving this case forward.
Regards,
James P. Meyer
The Aubert Law Firm
222 North Vermont Street
Covington, LA 70433-3240
Likewise, using the same caption, “Mona Lisa Benjamin v Cajundome Commission, et al – Trial Setting,” Mr. Jeffery Clayman, co-counsel for the Cajundome Commission, replied on December 10, 2020, with copies to all counsel, stating (emphasis added):
Date: Thursday, December 10, 2020, 01:51 PM CST
Thank you, Lloyd. I would agree with Jimmy that, given this matter has been pending for some time with periodic, long lapses in activity, it makes sense for us to review any updated information and evaluate where things stand. To that end, we would appreciate receiving, in addition to any updated medical records, supplemental responses to discovery where appropriate. I wanted to also remind both you and Jimmy that my client has a third-party demand that was effectively stayed as a result of the third party defendants military service. We will need to determine where that stands, as well.
Article 561(A)(3) requires a party or interested persons ex parte motion for dismissal to be supported by an affidavit stating that no step has been taken in the prosecution or defense of the action for a period of three years. A review of the record reflects that Schindler Elevators Ex Parte Motion to Dismiss was accompanied by an affidavit, yet none of the parties’ communications of December 2020 were referenced in the Affidavit submitted by Schindler Elevator in support of its Motion to Dismiss.
Additionally, and as to the issue of plaintiffs “clear intention” to abandon her suit, the record reflects that even after the trial court granted Defendants Ex Parte Motion to Dismiss on November 12, 2021, Plaintiffs counsel on November 23, 2021, emailed counsel for both Defendants, attaching a “CD”, additional discovery materials, including Plaintiffs Supplemental Responses to Interrogatories, Plaintiffs medical reports and medical specials, and also detailed charts including treatment dates, billings, and types of treatment. The record reflects that Defense counsel, Mr. Clayton, received and accepted said additional discovery on November 23, 2021; and Defense counsel, Mr. Meyer, received and accepted said additional discovery on November 26, 2021.
Far from evidencing Plaintiffs “clear intention” to abandon her suit, all of these parties by their December 2020 exchange, along with Plaintiffs November 2021 supplemental discovery responses, confirmed that it was not Plaintiffs “clear intention” to abandon her suit.
While La. Code of Civil Procedure Articles 561 and 1474 (C)(4) offer some protections to ensure that parties are not wrongly aggrieved by dismissals on grounds of abandonment, they are not litigants’ exclusive protections.
In fact, Louisiana courts have long been admonished that it is our duty not to deny litigants their day in court, and certainly not when it was clearly not their intention to abandon their suit.
The jurisprudence has uniformly held that La. C. Civ. Pro. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. The jurisprudence has echoed some general policy considerations that dictate this result. Oft quoted is the following statement by Justice (then Judge) Lemmon in Kanuk v. Pohtmann, 338 So.2d 757, 758 (La.App. 4th Cir.1976), writ denied, 341 So.2d 420 (La. 1977):
The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiffs 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.
Quoting the above language from 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.
In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.
Clark, 785 So.2d at 785–86. (Emphasis added; notes omitted, including citations.)
“For the purpose of determining abandonment, ‘the intent and substance of a partys actions matter far more than technical compliance.’ ” Roubion Shoring Co., LLC v. Crescent Shoring, L.L.C., 21-237 (La. App. 5 Cir. 12/22/21), 335 So.3d 354, 361, writ denied, 22-00282 (La. 4/20/22), 336 So.3d 468, quoting Thibaut Oil Co., Inc. v. Holly, 06-0313 (La. App. 1 Cir. 2/14/07), 961 So.2d 1170, 1172-73. See also Louisiana Dept of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La. 12/6/11), 79 So.3d 978, 982.
In addition to the two discovery exceptions legislatively codified in Civil Procedure Articles 561 and 1474 (C)(4), the Supreme Court in Clark identified two others:
Those two exceptions are: (1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Only the latter, defendant-oriented exception is relevant to this case.
Clark, 785 So.2d at 784–85.
I would vote to conclude that, as a matter of law, the parties’ communications of December 2020, along with Plaintiffs communications of November 2021, patently constituted “actions inconsistent with an intent to treat the case as abandoned,” Clark, supra, 785 So.2d at 785, and thus constituted acts taken by a defendant who “waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned,” State, Dept. of Transp. v. Cole Oil, 822 So.2d 229, 232 (La. App. 2 Cir. 2002), if only because they constitute acts by defendants “provoking or responding to discovery.” Clark v. State Farm Mut. Auto. Ins. Co., at p. 14, 785 So.2d at 789, footnote 15, quoting 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 10.4 at 244 (1999).
Additionally, a review of the record, and specifically the trial courts oral reasons, shows a reluctant trial court succinctly stating for the record (emphasis added):
The problem that I have is that, obviously, in December of 2020, there was communication between parties. Mr. Dangerfield communicated about his discovery and those things that happened. I mean, yeah, it certainly seems to me, you know, when I usually see these cases of abandonment, its when somebody really, really abandons a case. Its hard for me to believe that the plaintiff abandons a case when they send a CD, answers some interrogatory discoveries, and after that even send a communication by e-mail that, hey, lets get this matter set for a trial. That doesnt sound like a plaintiff who abandoned their case.
Further, the record reflects that the trial court purposefully did not retract these candid remarks even after being reminded by Schindler Elevators Counsel that Plaintiff did not send her responses at the time of this December 2020 communication, but only did so later.
I would find that to uphold dismissal of Plaintiffs claim, in light of the unique facts of this case, would be to deny Plaintiff her day in court based on a technicality given that Schindler Elevator, and its codefendant, as of December 2020 were not only “fully aware of the actions” taken by Plaintiff to move the parties’ case along but further they were “participating in them.” In re Med. Rev. Panel of Jones, 801 So.2d. at 475-476.
Taking “substance over form,” Id., and given the unique facts of this case, I feel this panel should find that this action taken by Plaintiff was a “step” in furtherance of this litigation. I therefore join in the reversal of the trial court under the specific facts of this case.
ORTEGO, Judge, concurring in the result