Simonne St. Pe Versus Roto-Rooter Services Company, Tony Gagliano, Jr., and Old Republic Insurance Company

SIMONNE ST. PE NO. 25-C-299

VERSUS FIFTH CIRCUIT

ROTO-ROOTER SERVICES COMPANY, COURT OF APPEAL
TONY GAGLIANO, JR., AND OLD REPUBLIC
INSURANCE COMPANY STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-157, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

August 13, 2025

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and E. Adrian Adams, Pro Tempore

WRIT DENIED
SJW
SMC
EAA

COUNSEL FOR DEFENDANT/RELATOR,
ROTO-ROOTER SERVICES COMPANY, TONY GAGLIANO, JR., AND OLD
REPUBLIC INSURANCE COMPANY
Donald E. McKay, Jr.
Jeffrey C. Brennan
Mason C. Bonnaffons
Leila A. D'Aquin

COUNSEL FOR PLAINTIFF/RESPONDENT,
SIMONNE ST. PE
Jerry W. Sullivan

WINDHORST, J.

Defendants/relators, Roto-Rooter Services Co., Tony Gagliano, Jr., and Old

Republic Ins. Co., seek review of the trial court’s June 9, 2025 judgment, which

denied defendant’s motion to dismiss on grounds of abandonment.

In their motion to dismiss, defendants asserted that the last step in the

prosecution of this case was a deposition on February 4, 2022. In response, plaintiff

asserted that defendants produced an expert during mediation on September 29,

2022, which constituted a step in the prosecution of the case. Plaintiffs filed a motion

for status conference on April 2, 2025.

The issue presented is whether the production of an expert report during

mediation constitutes a step in the prosecution of the case.

LAW and ANALYSIS

Under La. C.C.P. art 561 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.

To avoid abandonment, plaintiffs must take some “step” toward the prosecution of

their lawsuit intended to hasten the suit toward judgment, or the taking of a

deposition, with or without formal notice. Clark v. State Farm Mutual Automobile

Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 784. Id. The step must be taken in

the proceeding and appear in the record of the suit, with the exception of formal

discovery. Id. The step must also be taken within the legislatively prescribed time

period, and sufficient action by either plaintiff or defendant will be deemed a step.

Id.

Whether or not a step in the prosecution of a case has been taken in the trial

court for a period of three years is a question of fact subject to manifest error analysis

on appeal. Lewis v. Digital Cable & Commc’ns N., 15-345 (La. App. 5 Cir. 11/19/15),

179 So. 3d 840, 844, Florreich v. Entergy Corp., 09–414 (La. App. 5 Cir. 2/23/10),

32 So.3d 965, 969, writ denied, 10-1057 (La.9/3/10), 44 So.3d 691. Louisiana

25-C-299 1

jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed

in favor of maintaining a plaintiff’s suit. Clark, 785 So.2d at 785. Abandonment is

not meant to dismiss actions on mere technicalities, but to dismiss actions which in

fact clearly have been abandoned. Id. at 786. Moreover, given that dismissal is 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. at 787, quoting Young v. Laborde, 576

So.2d 551, 552 (La. App. 4 Cir. 1991).

Under La. C.C.P. art. 561B, “[a]ny 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.” Lewis, 179 So.3d at 844. La. C.C.P art. 1474

C(4) states that “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.”

Production of Expert Report at Mediation

On the showing made, we cannot say the trial court was manifestly erroneous

in denying defendants’ motion to dismiss considering defendants produced an expert

report September 29, 2022. In plaintiff’s interrogatories and request for production

of documents, plaintiff requested information regarding whether defendants had

retained an expert and documents and reports related to the expert’s review of the

case. Defendants initially responded that no experts had been retained. Defendants

reserved the right to supplement and amend their responses. In fact, defendants had

an ongoing duty to supplement their responses under La. C.C.P. art. 1428. We

therefore find that the production of the expert report constituted a step in the

prosecution of the case.

25-C-299 2

Defendants argue that because the production was made during mediation it

does not constitute a step in the prosecution of the case under La. R.S. 9:4112 A.

Section A of this statute states “all oral and written communications and records

made during mediation, whether or not conducted under this Chapter and whether

before or after the institution of formal judicial proceedings, are not subject to

disclosure, and may not be used as evidence in any judicial or administrative

proceeding.” Section C, however, states:

C. The confidentiality provisions of this Section do not extend to
statements, materials and other tangible evidence, or
communications that are otherwise subject to discovery or are
otherwise admissible, merely because they were presented in the
course of mediation, if they are based on proof independent of any
communication or record made in mediation. [Emphasis added.]

Here, defendants had an ongoing obligation, independent of any

communication in mediation, to supplement their responses to plaintiff’s

interrogatories and requests for production of documents. Defendants’ required

supplemental responses were provided independent of the mediation.

An expert report can clearly have a substantial impact on a case. Defendants’

use of an expert report requires production to plaintiff where plaintiff has issued

discovery requests relative thereto, defendants have responded in the negative, and

reserved their right to supplement. This obligation to supplement responses was an

ongoing obligation which had continued uninterrupted since the discovery had been

propounded.

Timing of Production of the Expert’s Report

Relators do not specifically argue the timing of production of the expert’s

report as a reason the report cannot interrupt the three-year abandonment period,

i.e., that production of the expert report came after the date that the rebuttable

presumption1 of abandonment began on February 4, 2025. However, because

1 Presumption of abandonment due to three years of inactivity is not conclusive. Clark, 785 So.2d at 787.

25-C-299 3

relators emphatically argue that abandonment is self-activating, and contend that no

step in the prosecution of the case occurred before the three-year period lapsed, we

address that issue to the extent that it is implicated by section “C” of the writ

application.

The Louisiana Supreme Court in Clark, supra, made clear that where there is

an interruption or waiver of abandonment occurring as a result of a “definite action”

of the defendant, the timing (whether during or after the abandonment period) is

irrelevant. The court in Clark stated:

Timing of Defendant’s Actions Constituting a Waiver
An inherent distinction has been noted between a plaintiff’s acts
in relation to abandonment and those of a defendant. Unlike a
plaintiff whose post-abandonment actions cannot serve to revive an
abandoned action, a defendant’s post-abandonment actions can
serve to waive his right to plead abandonment. “Once abandonment
has occurred, action by the plaintiff cannot breathe new life into the
suit.” Maraist & Lemmon, supra § 10.4 at 243. “No ‘definite action’
by a plaintiff or inaction by a defendant after accrual of the [three-
]year period can be construed as a waiver of abandonment by the
defendant, although a defendant by ‘definite action’ may waive the
abandonment.” Middleton, 526 So.2d at 860. That a defendant’s
conduct occurred before the abandonment period elapsed as opposed
to after is thus a distinction without a difference.
The timing of a defendant’s conduct cannot logically be construed
as altering its character insofar as whether it is sufficient to constitute
a waiver of the right to plead abandonment. Logic dictates that the
same standard for determining if action of the defendant results in
waiver and thereby an interruption of abandonment should apply
regardless of whether the conduct occurred before or after the
abandonment period elapsed.
[Internal emphasis added; heading as in original.]
Clark, 785 So.2d at 789.

We conclude that the timing and circumstances of the tender of the expert

report on September 29, 2022 in the instant case was a “definite action” by

defendants, similar to and as contemplated in Clark. Therefore, the timing of it

is irrelevant.

25-C-299 4

CONCLUSION

For these reasons, we find that the trial court’s denial of defendants’ motion

to dismiss on grounds of abandonment was not erroneous. This result is consistent

with the doctrine that La. C.C.P. art. 561 is to be liberally construed in favor of

maintaining a plaintiff's suit, and that abandonment is not meant to dismiss actions

on mere technicalities. Clark, 785 So.2d at 785-86.

Based on the circumstances presented and applicable law, we find no error in

the trial court’s denial of defendants’ motion to dismiss. We therefore deny this writ.

WRIT DENIED

25-C-299 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. TRAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 13, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

25-C-299
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
JEFFREY C. BRENNAN (RELATOR) LEILA A. D'AQUIN (RELATOR) JERRY W. SULLIVAN (RESPONDENT)

MAILED
DONALD E. MCKAY, JR. (RELATOR)
MASON C. BONNAFFONS (RELATOR)
ATTORNEY AT LAW
1100 POYDRAS STREET
SUITE 1700
NEW ORLEANS, LA 70163