Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. Allen Bickham

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of October, 2024 are as follows:

BY McCallum, J.:

2023-CC-01364 BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE VS. ALLEN
BICKHAM, ET AL. (Parish of Orleans Civil)

AFFIRMED. SEE OPINION.

Crichton, J., additionally concurs and assigns reasons.
Crain, J., concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2023-CC-01364

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE

VS.

ALLEN BICKHAM, ET AL.

On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil

McCALLUM, J. 1

Louisiana Code of Civil Procedure article 561 A (1) provides that 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. . . .” Article 561 has generated a considerable

amount of litigation as to what constitutes a “step” sufficient to interrupt the accrual

of the abandonment period. In this expropriation matter, we consider whether a joint

motion to continue trial meets the requirements of a “step.” As a preliminary matter,

we also consider the underlying issue of whether an ex parte motion to continue trial

without date is considered a step within the meaning of Article 561. As discussed

more fully herein, we hold that a motion which seeks nothing more than the

continuance of a trial without date is not a step in the prosecution or defense of a

case; it does not interrupt the abandonment period.

Whether a joint motion to continue a trial date is a “step” as contemplated by

Article 561 raises additional concerns. After our careful consideration of this issue,

we find that a joint motion to continue trial without date, although technically not a

“step” in a lawsuit, may waive a defendant’s claim that an action has been abandoned

1
Justice Jeannette Theriot Knoll, retired, appointed Justice Pro Tempore, sitting for the vacancy
in Louisiana Supreme Court District 3.

when it simultaneously reflects the parties’ intent for the lawsuit to advance. We

further hold that the abandonment period begins anew upon the filing of the joint

motion to continue, and not when the trial court signs the order continuing the trial.

In the instant matter, we find that the joint motion to continue trial without

date constituted a waiver and interrupted the abandonment period because it

reflected the parties’ acknowledgement that the matter would move forward. We

also find that more than three years elapsed between the date it was filed and the

next step in the prosecution of the case. Ordinarily, the case would be deemed

abandoned. However, the Louisiana legislature enacted La. R.S. 9:5829 which

suspended certain periods, including the abandonment period, “[d]uring [the] 2020

Covid-19 Public Health Emergency.” It provides, in pertinent part, as follows:

A. All prescriptions, including liberative, acquisitive, and
the prescription of nonuse, abandonment periods, and all
peremptive periods shall be subject to a limited suspension
or extension during the time period of March 17, 2020,
through July 5, 2020; however, the suspension or
extension of these periods shall be limited and shall apply
only if these periods would have otherwise expired during
the time period of March 17, 2020, through July 5, 2020.
The right to file a pleading or motion to enforce any right,
claim, or action which would have expired during the time
period of March 17, 2020, through July 5, 2020, shall
expire on July 6, 2020.

(Emphasis added).

The last date of the abandonment period at issue in this case fell squarely

within that time frame. The next step in the prosecution – the filing of a motion to

set for trial – occurred during this suspensive period and interrupted the

abandonment period. Accordingly, this matter was not abandoned and we affirm the

lower court judgments on that basis.

FACTS AND PROCEDURAL BACKGROUND

In August 2010, the Board of Supervisors of Louisiana State University and

Agriculture and Mechanical College (the “Board”) filed this suit, seeking to

2

expropriate property located at 2327 Palmyra Street in New Orleans, Louisiana, for

the purpose of constructing an academic medical center after its existing center was

significantly damaged by Hurricane Katrina. Named as defendants are the owners

of the property, Allen Bickham, Octavia Bickham, and Tesha Bickham Lewis (the

“Bickham defendants”), and the City of New Orleans (named solely to obtain the

cancelation of any liens on the property in favor of the City).2 In March 2011, the

Board obtained a default judgment against the Bickham defendants which set the

amount of just compensation and ordered the Board to deposit that sum into the trial

court’s registry.

On October 20, 2011, Mr. Alderdice intervened in the action, asserting that he

is the holder of a mortgage and note on the Bickham defendants’ property, on which

an outstanding balance remained. 3 Mr. Alderdice alleged that he had not received

notice of the expropriation proceeding, that the building on the property had been

demolished, and that he suffered damages as a result.4

Over the next couple of years, the parties engaged in motion practice and

discovery and in late December 2013, the Board filed a peremptory exception of no

right of action against Mr. Alderdice. The trial court granted the exception on March

13, 2014 and dismissed the intervention. Mr. Alderdice appealed that ruling and the

court of appeal reversed, finding Mr. Alderdice had the right to intervene in the

expropriation proceeding to “assert his rights both as a mortgagee and a lienholder

2
The Bickham defendants are the heirs of Thelma Tate Bickham, who purchased the property in
1997 from James S. Alderdice through a credit sale. See Alderdice v. Bd. of Sup’rs of Louisiana
State Univ. & Agr. & Mech. Coll., 12-0148, p. 1 (La. App. 4 Cir. 7/25/12), 107 So. 3d 7.
3
After this matter was filed in this Court, Janet Farmer, Mr. Alderdice’s sister and legal
representative, was substituted as intervenor.
4
Mr. Alderdice also unsuccessfully sought to set aside the default judgment in a separate action.
See Alderdice, 12-0148, 107 So. 3d 7. In that case, the court of appeal affirmed a trial court
judgment granting exceptions of no cause of action and no right of action, finding that Mr.
Alderdice failed to allege any ground upon which the judgment of expropriation could be annulled
and further, that only the property owner “is the proper party against whom an expropriation
proceeding may be instituted.” Id., 12-0148, pp. 7-8, 107 So. 3d at 12.

3

against the amount deposited by the Board. . . as just compensation.” Bd. of Supr’s

of Louisiana State Univ. v. Bickham, 14-0975, p. 2 (La. App. 4 Cir. 3/11/15), 163

So. 3d 119, 131.

Mr. Alderdice then moved for a status conference in June 2015, and later filed

a Motion to Set for Trial on September 8, 2016. After an October 16, 2016 status

conference, trial was set for May 8, 2017. The trial court issued a Notice of Trial,

along with a schedule of pre-trial deadlines.

On March 23, 2017, the Board and Mr. Alderdice jointly moved for a

continuance of the trial date and all related cut-off dates. The joint motion related

that both Mr. Alderdice and the Board needed additional time to prepare for trial.5

The motion requested a continuance of the trial and the pre-trial conference “without

date” and further requested that the dates “be rescheduled at a Scheduling

Conference to be set by the Court.” The Order submitted to the trial court continued

the trial and related deadlines without date. The trial court signed the Order on

March 27, 2017.

Thereafter, the following relevant dates and pleadings appear in the record:

- March 29, 2019: the Board’s motion to withdraw and enroll additional
counsel of record;

- March 27, 2020: Mr. Alderdice’s motion to enroll additional counsel of
record;

- March 27, 2020: Mr. Alderdice’s motion to set for trial;

- July 6, 2020: trial court’s Order scheduling a telephone status conference
to select discovery deadlines;

- March 13, 2023: Mr. Alderdice’s motion to set for trial.

On June 20, 2023, the Board moved to dismiss the intervention as abandoned.

The Board’s position was that Mr. Alderdice’s September 8, 2016 motion to set for

5
The attorney primarily handling the case for Mr. Alderdice was no longer employed by the law
firm representing him and additional time was required for another attorney to prepare the case for
trial. Counsel for the Board also sought additional time to prepare “due to a medical procedure to
be performed on her spouse.”
4

trial was the last step in the prosecution of this matter. As Mr. Alderdice’s March

27, 2020 motion to set for trial was filed more than three years later, the Board

maintained, the matter was deemed abandoned as a matter of law.

The trial court summarily denied the Board’s motion to dismiss and the court

of appeal denied the Board’s writ application without comment. We granted the

Board’s writ application to consider whether the lower courts erred in denying the

Board’s motion and to resolve certain issues concerning the abandonment of cases.

Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll. v. Bickham, 23-

01364 (La. 1/10/24), 375 So. 3d 953.

LAW AND DISCUSSION

As noted, a suit is considered abandoned when the parties fail to take a step in

its prosecution or defense for a period of three years. La. C.C.P. art. 561 A (1).6

“Abandonment occurs automatically upon the passing of three years without either

party taking a step in the prosecution or defense of the action.” Wilkerson v. Buras,

13-1328, p. 6 (La. App. 1 Cir. 8/12/14), 152 So. 3d 969, 974-75 (citing La. C.C.P.

art. 561 A (1) and (3)). As a question of law, the issue of whether a lawsuit is

abandoned is subject to de novo review. Felo v. Ochsner Med. Ctr.-Westbank, LLC,

15-459, p. 5 (La. App. 5 Cir. 12/23/15), 182 So. 3d 417, 420.

6
At the time that the Board’s motion was filed, La. C.C.P. art. 561 A provided, in pertinent 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.

***
(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. . . .
5

This Court recently reiterated that, for purposes of Article 561, a “step” in the

prosecution or defense of a suit is either “a formal action before the court intended

to hasten the suit towards judgment” or “the taking of formal discovery.” Williams

v. Montgomery, 20-01120, p. 5 (La. 5/13/21), 320 So. 3d 1036, 1041. We further

explained in Williams that, to avoid the dismissal of a case as abandoned:

(1) a party must take some “step” in the prosecution or
defense of the action, (2) the step must be taken in the
proceeding and, with the exception of formal discovery,
must appear in the record of the suit, and (3) the step must
be taken within three years of the last step taken by either
party.

Id.

One purpose of Article 561 is to prevent protracted litigation where there is

no “serious intent to hasten the claim to judgment.” Louisiana Dep’t of Transp. &

Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912, p. 5 (La. 12/6/11), 79 So. 3d 978,

981. As we recognized in Williams, abandonment is not a “punitive concept;” to the

contrary, it balances competing policy considerations:

(1) the desire to see every litigant have his day in court and
not to lose same by some technical carelessness or
unavoidable delay, and (2) the legislative purpose that
suits, once filed, should not indefinitely linger, preserving
stale claims from the normal extinguishing operation of
prescription.

Id., 20-01120, p. 5, 320 So. 3d at 1041. Because the dismissal of a case as abandoned

is considered “the harshest of remedies,” our case law reflects that Article 561 is to

be liberally construed in favor of maintaining an action. See Clark v. State Farm

Mut. Auto. Ins. Co., 00-3010, p. 8 (La. 5/15/01), 785 So. 2d 779, 785. However, our

jurisprudence also reflects that abandonment is intended “to dismiss actions which

in fact clearly have been abandoned.” Oilfield Heavy Haulers, 11-0912, pp. 12-13,

79 So. 3d at 986 (quoting Clark, 00-3010, p. 9, 785 So. 2d at 786).

The issue of whether activity in a case constitutes a “step” under Article 561

turns on whether it “hastens” the matter to judgment. Although a step must “appear

6

in the record,” not all pleadings or filings in a lawsuit are deemed to be steps

sufficient to hasten a suit to judgment. For example, motions to enroll, withdraw or

substitute counsel of record do not constitute steps “as contemplated by La. C.C.P.

art. 561. . . because ‘[s]uch motions grant to counsel the right to take steps, or to

prepare to take steps, toward the prosecution or defense of a case, but are not

considered steps because they do not hasten the matter to judgment.’” Vaughan v.

Swift Transp. Co., Inc., 14-208, p. 4 (La. App. 5 Cir. 10/29/14), 164 So. 3d 235, 237,

(citations omitted); see also, James v. Formosa Plastics Corp. of Louisiana, 01-

2056, p. 9 (La. 4/3/02), 813 So. 2d 335, 341 (“Rather than being formal actions

before the trial court intended to hasten the matter to judgment, a motion to substitute

counsel of record merely ‘grants to counsel the right to take ‘steps’ toward

prosecution of his client’s case, but does not itself constitute such a ‘step.’”)

(citations omitted).

Similarly, motions and orders extending time to file pleadings do not hasten a

case towards judgment and, consequently, are not considered steps in its prosecution

or defense. Campbell v. Hartford Ins. Co. of the Midwest, 95-1484, p. 3 (La. App.

3 Cir. 4/3/96), 671 So. 2d 1133, 1135. Motions to set for trial, or to schedule a status

or other conference with the court, however, clearly advance a lawsuit and are thus

steps that interrupt the abandonment period. See, e.g., Hidalgo v. Catfish Queen

P’ship in Commendam, 06-1531, p. 5 (La. App. 1 Cir. 5/4/07), 961 So. 2d 434, 437.

Motions to continue trial dates, on the other hand, present conflicting

decisions in our jurisprudence. Clearly, motions to continue trial, accompanied by

orders to re-set trial dates and/or schedule conferences with the court, evidence the

intent to advance a lawsuit and are “steps” as contemplated by Article 561. See, e.g.,

Provenza v. City of Bossier City, 54,002, p. 18 (La. App. 2 Cir. 6/30/21), 324 So. 3d

246, 258 (“filing a motion for continuance, with a date set for the trial, constitute[s]

a step in the prosecution of the action that prevent[s] abandonment.”) (Emphasis

7

supplied); see also, Hinds v. Glob. Int’l Marine, Inc., 10-1452, p. 5 (La. App. 1 Cir.

2/11/11), 57 So. 3d 1181, 1184 (a “motion to continue and request that the matter be

reset, with accompanying order, [is] a ‘step’ in the prosecution of the suit.”).

There is inconsistency among the courts of appeal concerning a motion that

seeks to continue trial without date. The majority of decisions hold that motions to

continue trial without date, even those which are unopposed, are not steps as

contemplated by Article 561, as these motions do not hasten a lawsuit towards

judgment. Three of the five circuits of this state follow these principles. 7

The Fourth Circuit reached the opposite conclusion on this issue. Starting

with Dean v. Delacroix Corp., 12-0917 (La. App. 4 Cir. 12/26/12), 106 So. 3d 283,

the Fourth Circuit has held that the operative date on which an abandonment period

begins is the date on which a trial court signs an order granting a continuance of a

trial without date. The Dean court reasoned that, before the unopposed motion to

continue exceptions and trial was filed, the parties “were moving forward towards

trial,” and stated:

Once the trial court ruled on Delacroix’s exceptions, the
case would proceed to trial with or without Delacroix as a
party. There was no further action needed by any party,
such as the formal filing of pleadings, to move the case
forward. Thus, it would be patently unfair to hold that the
last date any action taken in this case to hasten it to
judgment was . . . when Dean filed its opposition to
Delacroix’s exceptions. Rather, we find the operative date
to begin the tolling of the three-year abandonment rule was
. . . the date Judge Ragusa signed the order continuing both
the hearing on Delacroix’s exceptions and the trial date.

7
See, e.g., (Second Circuit) Futch v. Horseshoe Casino, 49,144, p. 8 (La. App. 2 Cir. 7/23/14),
146 So. 3d 818; (Third Circuit) Taylor v. Dash Equip. & Supplies, Inc., 18-335 (La. App. 3 Cir.
11/7/18), 258 So. 3d 909; (Fifth Circuit) Roubion Shoring Co., LLC v. Crescent Shoring, L.L.C.,
21-237, p. 8 (La. App. 5 Cir. 12/22/21), 335 So. 3d 354, writ denied sub nom. Roubion Shoring
Co., L.L.C. v. Crescent Shoring, L.L.C., 22-00282 (La. 4/20/22), 336 So. 3d 468.

The First Circuit has not expressly stated that a motion to continue trial without date is not a step
in the prosecution of a case, but cited the trial court’s reasons for judgment in Brown v. Kidney &
Hypertension Associates, L.L.P., 08-0919, p. 5 (La. App. 1 Cir. 1/12/09), 5 So. 3d 258, 262, which
recognized: that “[t]he jurisprudence indicates that an unopposed motion to continue without date
is not a step in the prosecution.” The First Circuit has clearly held that joint motions to continue
trial without date do not constitute a step in the prosecution or defense of a lawsuit. See Hutchison
v. Seariver Mar., Inc., 09-0410, p. 6 (La. App. 1 Cir. 9/11/09), 22 So. 3d 989, 994.
8

Id., 12-0917, pp. 7-8, 106 So. 3d at 288. The Fourth Circuit later followed Dean in

Heirs of Simoneaux v. B-P Amoco, 13-0760 (La. App. 4 Cir. 2/5/14), 131 So. 3d

1128, to find that that a telephone conference with the court in which all parties

agreed to an indefinite continuance of a status conference was the last step in the

prosecution of a case. The dissent in Simoneaux observed, however, that “[a] joint

motion to continue is not an attempt to hasten an action toward trial; it is not a step.”

Id., p. 2, 131 So. 3d at 1133 (Jenkins, J., dissenting). The Fourth Circuit reached a

similar result in Delacruz v. Anadarko Petrol. Corp., 14-0433 (La. App. 4 Cir.

12/3/14), 157 So. 3d 790, and more recently, in Fischer v. Chad Rogers, Cuvee,

L.L.C., 19-0337, p. 8 (La. App. 4 Cir. 10/9/19), 280 So. 3d 1199, 1205, where the

court, being “bound by the Fourth Circuit precedent set forth in Dean, Simoneaux,

and Delacruz,” found: “where a trial date has been selected and the matter is

proceeding toward that trial date, an order continuing trial qualifies as a step in the

prosecution of the case, the date on which the three-year period for abandonment

commences anew.”

All of the cases involving abandonment focus on whether the abandonment

period was interrupted by formal discovery or, pertinent to this case, formal action

before the court (i.e., appearing in the record) intended to “hasten” it towards

judgment. Again, a “step” is taken when there is “a demonstrable intention of

moving the case to trial.” See Picone v. Lyons, 94-2428, p. 4 (La. App. 4 Cir.

4/26/95), 653 So. 2d 1375, 1377. Stated another way, a step occurs when the parties

“forward[] the progress of the case in court.” See Donald G. Lambert Contractor,

Inc. v. State Through Dep’t of Highways, 577 So. 2d 341, 342 (La. App. 1 Cir. 1991)

(quoting Lips v. Royal Ins. Co., 89 So. 213, 214 (1921)).

We agree with the majority of the courts of appeal that a motion to continue

trial without date is not a step in the prosecution or defense of a lawsuit; it does not

9

hasten a matter towards judgment. To the contrary, the continuance of a trial without

date delays the case, neither advances nor forwards its progress, and does not

evidence any intention to hasten the case towards a conclusion. It simply brings the

matter to a standstill. In Clark, this Court recognized “‘the legislative intent and

judicial policy of finality, requiring that suits not be permitted to linger indefinitely,

that the legal process be expedited where possible, and that abandoned cases be

removed from crowded dockets.’ 1 Judge Steven R. Plotkin, West Practice Group:

Louisiana Civil Procedure 359 (2001).” Clark, 00-3010, p. 11, 785 So. 2d at 787.

We therefore hold that a motion to continue trial without date is not a “step”

in the prosecution or defense of a case as contemplated by Article 561. It does not

interrupt the tolling of the abandonment period as it is the cessation of progress.

Turning to the question of whether a joint motion to continue trial without

date constitutes a “step,” the few cases addressing this issue generally make no

distinction between an ex parte motion or a joint motion, and find that a joint motion

to continue (like an ex parte motion) is not a step in the prosecution of a case for

purposes of abandonment. See Hutchison v. Seariver Mar., Inc., 09-0410, p. 6 (La.

App. 1 Cir. 9/11/09), 22 So. 3d 989, 994 (“A joint motion to continue without date

or indefinitely is not considered a step in the prosecution of a case, since by its very

nature, an indefinite continuance is not intended to hasten the matter to judgment.”)

(emphasis supplied); see also, Oliver v. Oliver, 95-1026, p. 14 (La. App. 3 Cir.

3/27/96), 671 So. 2d 1081, 1090 (the “joint motion to continue, which resulted in the

indefinite continuation of the hearing on her motion. . . cannot be considered a step

in the prosecution since, by its very nature, a motion for continuance is not intended

to hasten the matter to judgment.”).

The Provenza court summarized the jurisprudence on this issue as follows:

. . . the first, third, and fifth circuits have held that a joint
motion for continuance or an uncontested motion for
continuance is not a step in the prosecution of the matter,

10

apparently rejecting the notion that if there is agreement to
continue a matter without date, that should constitute a
step in the prosecution of the matter. Those courts
recognize that, even if the parties agree to a continuance
without date, that action still does not satisfy the
requirement that the step hasten the matter to judgment.

Id., 54,002, p. 18, 324 So. 3d at 258. (Emphasis supplied). The court then stated:

We believe that the legal reasoning of the first, third, and
fifth circuits is more fully supported by La. C.C.P. art. 561
and the basic requirement that a “step” is a formal action
before the court, intended to hasten the suit toward
judgment, or the taking of formal discovery. As found by
those courts, the continuance of a case, without date, even
if the motion is joint or unopposed, does not hasten the suit
toward judgment. Rather, without the remedy offered by
La. C.C.P. art. 561, such an action would allow an action
to “hang perpetually over the head of the defendant unless
he himself should force the issue” and is contrary to the
underlying policy of the abandonment article which seeks
to prevent protracted litigation without a serious intent to
hasten the claim to judgment.

Id., 54,002, pp. 18-19, 324 So. 3d at 258.

The First Circuit recently considered whether a joint motion to continue

interrupted an abandonment period in Dickerson v. SNF Holding Co., 23-0160 (La.

App. 1 Cir. 11/9/23), 378 So. 3d 803. There, the trial court issued a scheduling order

on April 10, 2019, setting the case for trial in January 2020. On December 19, 2019,

the parties jointly moved to continue the trial date; the motion expressly stated that

“Movers respectfully request that the trial be continued without date and all

deadlines on the pretrial scheduling order be suspended. Parties will request a status

for a new trial date if unable to resolve matter.” Id., 23-0160, p. 4, 378 So. 3d at

806.

Thereafter, on August 11, 2022, the defendant filed a motion to dismiss the

case as abandoned, taking the position that the last step in the case was the April 10,

2019 order setting the case for trial. The trial court granted the motion and dismissed

the case. The First Circuit reversed. It first reviewed relevant case law on

abandonment, reiterating the principle that a joint motion to continue without date is

11

not a step in the prosecution of a case. It then cited two jurisprudential exceptions

to the abandonment rule set forth in Clark: (1) the plaintiff-oriented exception, based

on the doctrine of contra non valentum, that applies when the failure to prosecute is

caused by circumstances beyond the plaintiff’s control; and (2) a defense-oriented

exception, based on acknowledgement, that applies when a defendant waives the

right to assert abandonment by taking actions inconsistent with an intent to treat the

case as abandoned.8 Id., 23-0160, p. 3, 378 So. 3d at 806. As concerns the defense-

oriented exception, we note that “the conduct or actions of the defendant which are

inconsistent with the intent to treat a case as abandoned and which result in the

waiver of the right to assert abandonment may occur either before or after the

abandonment period has accrued and serves to recommence the abandonment period

running anew.” Burgess, Inc. v. Par. of St. Tammany, 17-0153, p. 5 (La. App. 1 Cir.

10/25/17), 233 So. 3d 58, 63 ( citing Hutchison, 09-0410, p. 6, 22 So. 3d at 994).

Finding that the language of the motion to continue at issue reflected conduct

sufficient to amount to a waiver of abandonment, the Dickerson court stated:

Where the joint motion herein not only involves a request
for a continuance, but evidences an agreement between the
parties to “request a status for a new trial date,” we agree
with the plaintiffs’ contentions, and find that the defense-
oriented exception to the abandonment rule applies. By
virtue of the joint motion, both parties, and more
importantly the defendant SNF, agreed and indicated their
intention, should this matter not resolve, to set it for a trial.
The action of SNF amounted to an acknowledgment of
JMD’s ongoing cause of action. It was inconsistent with
an intent to treat this matter as abandoned—it operated as
a waiver to any claim that JMD abandoned this litigation,
and precluded SNF from asserting the same.

Id., 23-0160, p. 5, 378 So. 3d at 807.

8
Clark considered whether an unconditional tender made by an uninsured/underinsured motorist
carrier as required by La. R.S. 22:658 (now, La. R.S. 22:1892) constituted a waiver of the claim
that a suit was abandoned. Finding that it was a waiver, this Court stated: “Equity dictates
recognizing the tender as an acknowledgment and thus within the waiver exception, which results
in an interruption of abandonment and a recommencement of the abandonment period from the
date of the tender.” Id., 00-3010, p. 21, 785 So. 2d at 793.

12

We find the Dickerson reasoning to be persuasive. A joint motion to continue

trial without date is analogous to an unopposed motion to continue without date.

Neither motion interrupts the abandonment period absent some additional element

reflecting either an intent for the lawsuit to continue (e.g., an order accompanying

the motion to continue re-setting the trial date or scheduling a conference) or the

waiver of the claim that the suit is abandoned. Where it meets either of these

circumstances, a joint motion to continue trial interrupts the abandonment period.

We decline, however, to adopt the broad rule that a joint motion that merely

continues trial without date suffices to interrupt the abandonment period. Indeed, a

joint motion to continue without date merely evidences that neither party is

hastening the matter toward judgment. See, e.g., Reed v. Finklestein, 01-1015, p. 6

(La. App. 4 Cir. 1/16/02), 807 So. 2d 1032, 1035 (“Implicit in the [joint] motion [to

continue without date] . . . was that both parties intended that neither party wanted

to hasten to judgment the issue of whether or not a new trial should be granted.”).

Applying these principles to the instant matter, we find that the joint motion

to continue trial is comparable to the motion in Dickerson such that it constitutes an

action “inconsistent with an intent to treat the case as abandoned.” The joint motion

specifically requested that the continued dates “be rescheduled at a Scheduling

Conference to be set by the Court.” As the Dickerson court found, this request serves

as an acknowledgement of Mr. Alderdice’s ongoing intervention, and negates any

abandonment argument.

Our finding raises the additional question of whether the abandonment period

commenced on the date the joint motion was filed or the date the trial court signed

the order continuing the trial. Our relevant jurisprudence on this issue supports the

finding that the operative date is the date on which the joint motion was filed. This

Court in James, 01-2056, 813 So. 2d 335, made clear that, for purposes of

interrupting the abandonment period, a step in the prosecution must be made by a

13

“party,” and not the court. There, this Court found that its denial of a plaintiff’s

application for a writ of certiorari “clearly cannot serve to interrupt the abandonment

period as to plaintiff’s actions against [defendant] because it was not a step in the

prosecution or defense of the action taken by the parties.” Id., 01-2056, p. 8, 813

So. 2d at 340.9 (Emphasis added).

Following James, cases have consistently held that, for purposes of

abandonment, the clear language of Article 561 requires that a step be taken by the

parties. Thus, action by the court is insufficient to interrupt the abandonment period.

In Felo, 15-459, 182 So. 3d 417, for example, the plaintiff argued that service by

mail of a jury deposit order from the clerk of court was the last step in the prosecution

of his lawsuit. He maintained that his request for a jury trial was not perfected until

the jury order was mailed. In rejecting these arguments, the court found Article 561

to be clear and unambiguous, plainly requiring a step by “the parties.” The mailing

of the jury order therefore “was a not step taken by the parties in the prosecution of

the action that tolled the running of abandonment.” Id., 15-459, p. 10, 182 So. 3d at

423 (emphasis supplied).

Similarly, in Edwards v. Chrysler Motor Co., 07-0326 (La. App. 1 Cir.

02/08/08), 984 So. 2d 85, the plaintiff relied on actions in the court of appeal, (i.e.,

the date the record was lodged in the appellate court, the date the court issued notice

to file briefs, and the date the court issued judgment stating the appeal was

abandoned) as steps interrupting the abandonment period. Finding the plaintiff’s

reliance on those actions to be “misplaced,” the court stated that “[a]ctions taken by

courts do not interrupt the abandonment period simply because they are not actions

9
The Court also rejected the argument that the filing of the notice of the writ denial interrupted
the abandonment period. It found that this “was not a ‘step’ in the prosecution or defense of the
action because it was not a formal action before the trial court intended to hasten the matter to
judgment.” Id., 01-2056, p. 9, 813 So. 2d at 341.
14

in the prosecution or defense of the action taken by the parties in the trial court as

required by La. C.C.P. art. 561.” Id., p. 6, 984 So. 2d at 90.10

The reasoning of the foregoing informs that, pertinent to the instant matter, a

trial court’s signing of an order continuing a trial without date is not a step in the

prosecution of a case. First, it is not a step by the parties as required by Article 561.

Second, it does not hasten the matter towards judgment. While the parties’ joint

motion may reflect a waiver of abandonment, the trial court’s issuance of an order

indefinitely continuing trial does not forward the progress of the case; it

accomplishes the opposite – the case comes to a halt.

We distinguish our finding that a joint motion to continue trial that evidences

a waiver of abandonment interrupts the abandonment period from those cases in

which a trial court’s action suspends the tolling of the abandonment period. Where,

for example, the trial court fails to issue judgment following a trial during the period

of abandonment, abandonment does not accrue. In Barton v. Burbank, 138 La. 997,

71 So. 134, 134 (1916), for example, this Court rejected the argument that plaintiffs

had abandoned their suit when the abandonment period had elapsed because the

matter had been “stayed by injunction and the judge delay[ed] his decision for five

years after the submission of the matter.” The Court observed that the plaintiffs

“should not be held responsible for [the judge’s] delay in the discharge of his duty.

. . the idea of the [abandonment] statute being merely to hold a plaintiff responsible

10
See also, Argence, L.L.C. v. Box Opportunities, Inc., 11-1732, p. 3 (La. App. 4 Cir. 5/23/12),
95 So. 3d 539, 541 (“This article makes it clear that a party must take the action to move a case
to final disposition, not the trial judge.”) (emphasis supplied). Hardy v. A. Wilbert’s Sons, L.L.C.,
06-1093, p. 6 (La. App. 1 Cir. 9/19/07), 970 So. 2d 1063, 1066 (the signing of a case management
order by a judge in another division that consolidated 19 lawsuits involving water contamination
claims did not interrupt the abandonment period); First Bank & Tr. v. Proctor’s Cove II, LLC, 19-
299, p. 10 (La. App. 5 Cir. 12/30/19), 287 So. 3d 888, 895 (the filing into the record of an opinion
affirming the trial court’s motion to strike a motion to recuse and reversing the grant of a summary
judgment motion – whether filed by the court or one of the parties – does not constitute a step
because “the plain language of La. C.C.P. art. 561(A)(1) provides that the action in the prosecution
or defense of the matter must be taken by a party.”) (emphasis supplied); Voisin v. Int’l Companies
& Consulting, Inc., 05-0265, p. 6 (La. App. 1 Cir. 2/10/06), 924 So. 2d 277, 281 (“the Code of
Civil Procedure clearly requires action by the parties to the lawsuit;” the act of a witness’s
correcting and signing a deposition did not interrupt prescription) (emphasis supplied).
15

for delay attributable to his nonaction in and failure to prosecute his suit up to the

point at which the court is placed in a position to render judgment.” Id., 138 La. at

1000, 71 So. at 135.

Similarly, in Bryant v. Travelers Ins. Co., 288 So. 2d 606 (La. 1974), this

Court considered the effect of a trial court’s failure to issue judgment during the

abandonment period, after taking a matter under advisement following trial. Finding

that the “delays thereafter are not chargeable to any failure on the part on plaintiffs

to take a step in the prosecution of their lawsuit,” the Court held that the matter was

not abandoned. Id., 288 So. 2d at 609. The same result was reached in Collins v.

Methvin, 625 So. 2d 313, 314 (La. App. 3 Cir. 1993); where the trial court did not

sign a final judgment until eight years after a trial, the case was not abandoned; see

also, Succession of Moody, 306 So. 2d 869, 873 (La. App. 1 Cir. 1974) (“Where a

case has been submitted to the court for decision, Article 561 of the Code of Civil

Procedure is inapplicable to either party to the action, because the delay is

attributable to the court rather than the parties.”).

Here, the last step in the prosecution of this matter was the joint motion to

continue trial without date, filed on March 23, 2017. It was not the trial court’s

March 27, 2017 order granting the motion to continue. Under ordinary

circumstances, the abandonment period would have tolled on March 23, 2020.

However, as noted, the Louisiana legislature enacted La. R.S. 9:5829 which

provides, in subpart A that, due to the Covid health emergency, all abandonment

periods that would have expired during the period from March 17, 2020 through July

5, 2020 are subject to a limited suspension. The “right to file a pleading or motion

to enforce any right, claim, or action which would have expired during the time

period. . . shall expire on July 6, 2020.” Id. Here, Mr. Alderdice filed a motion to

set for trial on March 27, 2020, which falls within that this statutory suspension.

Accordingly, we find that Mr. Alderdice’s motion to set for trial, clearly a step in the

16

prosecution, interrupted the abandonment period. On this basis, the lower courts

properly denied the Board’s motion to dismiss this case as abandoned.

DECREE

Based on the foregoing, we affirm the rulings of the lower courts.

AFFIRMED.

17

SUPREME COURT OF LOUISIANA

No. 2023-CC-01364

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE

VS.

ALLEN BICKHAM, ET AL.

On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil

CRICHTON, J., additionally concurs and assigns reasons.

I agree with the majority but write separately to make clear that this Court’s

opinion should be understood to abrogate the prior outlier court of appeal decisions

in Heirs of Simoneaux v. B-P Amoco, 2013-0760 (La. App. 4 Cir. 2/5/14), 131 So.

3d 1128 (holding a telephone conference with the court in which all parties agreed

to an indefinite continuance of a status conference was a step in the prosecution of a

case) and Dean v. Delacroix Corp., 2012-0917 (La. App. 4 Cir. 12/26/12), 106 So.

3d 283 (holding the operative date on which an abandonment period begins is the

date on which a trial court signs an order granting a continuance of a trial without

date). The decision in Heirs of Simoneaux, 2013-0760, 131 So. 3d 1128 was contrary

to this Court’s decision in Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy

Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So. 3d 978, that explained that one

purpose of La. C.C. art. 561 is to prevent protracted litigation where there is no

“serious intent to hasten the claim to judgment.” The reasoning in Dean v. Delacroix

Corp., 2012-0917, 106 So. 3d 283, was likewise faulty in that it conflicted with the

clear language of La. C.C. art. 561 which requires a step in the prosecution of the

case be taken by the parties, thus an action by the court is insufficient to interrupt

the abandonment period. Accordingly, these decisions from the Court of Appeal for

the Fourth Circuit, as well as any subsequent decisions relying on their holdings, are

abrogated by the majority opinion in this case.

SUPREME COURT OF LOUISIANA

No. 2023-CC-01364

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL
AND MECHANICAL COLLEGE

VS.

ALLEN BICKHAM, ET AL.

On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil

CRAIN, J., concurring.

I agree the motion to continue trial without date did not constitute a step in the

prosecution of the case; it did not hasten the matter to trial. See La. Code Civ. Pro.

art. 561. I write separately to clarify that when considering the defense-oriented

exception to abandonment, a joint motion to continue and an unopposed motion to

continue are not the same. Delay is often a defense strategy. By joining in the

motion to continue trial without date, the defense actively engaged in delaying trial,

which I would find constitutes at least a waiver of the abandonment claim, if not a

step in defense of the matter. I agree with the majority the three-year abandonment

period recommenced on the date the joint motion to continue was filed. See James

v. Formosa Plastics Corp., 2001-2056 (La. 4/03/02) 813 So.2d 335, 340; Clark v.

State Farm Mut. Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785 So.2d 779, 793. The

abandonment period, as extended by the legislature, was then interrupted by the

filing of the motion to set for trial. See La. R.S. 9:5829. Thus, I respectfully concur.