Bryon P. Guillory, Et Ux. v. Pelican Real Estate, Inc.

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #013

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 17th day of March, 2015, are as follows:

PER CURIAM:

2014-C -1539 BRYON P. GUILLORY, ET UX. v. PELICAN REAL ESTATE, INC., ET AL.
C/W (Parish of St. Landry)
2014-C -1593
C/W For the reasons assigned, the judgment of the court of appeal is
2014-C-1624 reversed. The judgment of the district court dismissing
plaintiffs' action as abandoned is reinstated. All costs in this
court are assessed against plaintiffs.

03/17/15

SUPREME COURT OF LOUISIANA

NO. 2014-C-1539

CONSOLIDATED WITH

NO. 2014-C-1593

CONSOLIDATED WITH

NO. 2014-C-1624

BRYON P. GUILLORY, ET UX.

VERSUS

PELICAN REAL ESTATE, INC., ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF ST. LANDRY

PER CURIAM

At issue in these consolidated applications is whether the court of appeal

erred in reversing the judgment of the district court which dismissed plaintiffs’ suit

as abandoned. For the reasons that follow, we conclude the suit is abandoned, and

we therefore reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On June 25, 2008, plaintiffs, Byron and Margo Guillory, filed suit against

several defendants, including Pelican Real Estate, Inc. (“Pelican”) and its

professional liability insurer, St. Paul Fire and Marine Ins. Co. (“St. Paul”).1

Essentially, plaintiffs alleged the home they purchased contained a redhibitory

defect.

On March 4, 2010, all parties participated in depositions. On December 17,

1
The other defendants were Johnny Jones (the seller of the home); Maria Landry (Mr.
Jones's real estate agent); Brandi McKnight (plaintiffs’ real estate agent); and Linda Krupke
(another real estate agent). All the real estate agents were employed by Pelican.

2012, plaintiffs sent written discovery directed to Pelican, but did not serve the

other parties. When Pelican did not timely respond, plaintiffs scheduled a Rule

10.1 discovery conference, sending the notice of the conference to Pelican only.

On January 28, 2013, counsel for plaintiffs and Pelican participated in the

Rule 10.1 discovery conference. Plaintiffs thereafter presented Pelican with a

written settlement demand, but Pelican did not respond to the demand, and did not

reply to the discovery.2

On June 20, 2013, St. Paul filed an ex parte motion to dismiss plaintiffs’ suit

as abandoned pursuant to La. Code Civ. P. art. 561. St. Paul alleged the suit was

abandoned because no steps were taken in the prosecution or defense of the matter

in more than three years since the March 4, 2010 depositions. The district court

signed the ex parte judgment of dismissal.

Plaintiffs then filed a motion to vacate/set aside the order of dismissal,

arguing the discovery sent to Pelican and the subsequent Rule 10.1 discovery

conference with that defendant interrupted the abandonment period. After a

hearing, the district court determined that because neither the discovery nor the

notice of discovery conference was “served on all parties,” these actions did not

constitute a step sufficient to interrupt the abandonment period under La. Code

Civ. P. art. 561. The district court thus denied plaintiffs’ motion to vacate the

order of dismissal.

Plaintiffs appealed the dismissal. A five-judge panel of the court of appeal

reversed the district court’s ruling in a split decision. Guillory v. Pelican Real

Estate, Inc., 2014-58 (La. App. 3 Cir. 6/25/14), 143 So. 3d 539. The majority

concluded plaintiffs’ service of the notice of Rule 10.1 conference and service of

2
Plaintiffs contend defendant requested an extension of time to respond to the discovery,
thus lulling plaintiffs into inaction, and also evidencing no intent by defendant to treat the action
as abandoned; defendant denies requesting an extension.

2

written discovery on Pelican constituted a step in the prosecution of their actions

against all of the defendants. However, the dissenting judge disagreed, pointing

out La. Code Civ. P. art. 561 required service of discovery on all defendants.

Upon defendants’ applications, we granted certiorari to review the

correctness of that decision. Guillory v. Pelican Real Estate, Inc., 14-1539, 14-

1593, 14-1612 (La. 11/7/14), ___ So. 3d ___.

DISCUSSION

We begin from a well settled and basic premise of statutory construction –

"[w]hen a law is clear and unambiguous and its application does not lead to absurd

consequences, the law shall be applied as written and no further interpretation may

be made in search of the intent of the legislature." La. Civ. Code art. 9; Pumphrey

v. City of New Orleans, 05-979, p. 10 (La.4/4/06), 925 So.2d 1202, 1209. It is

presumed that every word, sentence, or provision in a law was intended to serve

some useful purpose, that some effect is to be given to each such provision, and

that no unnecessary words or provisions were employed. Sultana Corporation v.

Jewelers Mutual Insurance Company, 03-0360, p. 9 (La.12/3/03), 860 So.2d 1112,

1119. As a result, courts are bound, if possible, to give effect to all parts of a

statute and to construe no sentence, clause or word as meaningless and surplusage

if a construction giving force to, and preserving, all words can legitimately be

found. Watkins v. Exxon Mobil Corp., 13-1545, p. 10 (La. 5/7/14), 145 So. 3d

237, 243.

In the case at bar, our focus is on the language of La. Code Civ. P. art.

561(B), which provides:

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

3

prosecution or defense of an action. [emphasis added].

The record of these proceedings indicates that on December 17, 2012,

plaintiffs sent discovery to Pelican only. It is undisputed this discovery was not

served on all parties. Therefore, under the plain language of La. Code Civ. P. art.

561(B), this discovery does not constitute a step in the prosecution of the action.

Nonetheless, plaintiffs urge us to find they complied with the spirit of the

article under the facts of this case. Specifically, they point out that when Pelican

failed to comply with discovery, they provoked a Rule 10.1 discovery conference,

sending the notice of conference only to Pelican. At the January 28, 2013

conference, counsel for Pelican, who also represented some of the other

defendants, participated. Plaintiffs submit this participation represented an implicit

waiver of the abandonment defense by defendants.

In Louisiana Department of Transportation & Development v. Oilfield

Heavy Haulers, L.L.C, 11-912 at p. 10 (La. 12/6/11), 79 So. 3d 978, 984, we held

that a letter scheduling a Rule 10.1 conference “serves as a step in the prosecution

or defense of an action, as it is an essential component of a motion to compel.”

However, we made a specific finding that the letter at issue was served on all

defendants. Id. at p. 10, 79 So. 3d at 985. In contrast, it is undisputed plaintiffs in

the instant case sent notice of the Rule 10.1 conference to Pelican only.

We further reject plaintiffs’ suggestion that participation in the conference

by Pelican’s counsel (who also represented some of the other defendants) and

discussion of a potential settlement amounted to a waiver of defendants’ right to

assert the abandonment defense. In Oilfield Heavy Haulers, we reaffirmed the

long-standing rule that “extrajudicial efforts,” such as informal settlement

negotiations between parties, have repeatedly been held to be insufficient to

constitute a step in the prosecution of the action. Id. at 7, 79 So. 3d at 982 (citing

4

Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 16; 785 So. 2d at 790).

Accordingly, we find no statutory or jurisprudential support for plaintiffs’

position.3

In summary, we hold the December 17, 2012 discovery and subsequent

notice of Rule 10.1 conference, both of which were sent to Pelican only, do not

constitute a step in the prosecution of this action. Accordingly, the court of appeal

erred in reversing the judgment of the district court.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed.

The judgment of the district court dismissing plaintiffs’ action as abandoned is

reinstated. All costs in this court are assessed against plaintiffs.

3
The court of appeal relied on our summary disposition in Louisiana Dept. of Transp. &
Develop. v. Bayou Fleet, Inc., 10-1215 (La. 7/2/10), 39 So. 3d 585, finding it implicitly held
service of discovery on all parties was not required. We disagree with this interpretation, and
specifically hold the disposition in Bayou Fleet is limited to the facts of that case.

The court of appeal also sought to apply the Civil Code's provisions for interruption of
prescription against solidary obligors, reasoning that interruption of the abandonment period as
to one defendant applied to all defendants. While our opinion in Clark v. State Farm Mutual
Automobile Insurance Co., 00-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787, suggested there are
some parallels between the concept of abandonment and liberative prescription, we find
absolutely no authority for engrafting the general rules of prescription into the law of
abandonment.

5