Mrs. Salvatore Paul Provenza, Sr., Salvatore Paul Provenza, Jr., Victoria C. Provenza, and the Unopened Succession of Salvatore Paul Provenza, Sr. v. The City of Bossier City, Louisiana, Bossier Parish, Louisiana, Pam Glorioso, Individually and in her Official Capacity as an Employee of the City of Bossier City, Louisiana, and H & W Demolition, Inc.

Judgment rendered June 30, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,002-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MRS. SALVATORE PAUL Plaintiffs-Appellants
PROVENZA, SR., SALVATORE
PAUL PROVENZA, JR.,
VICTORIA C. PROVENZA, AND
THE UNOPENED SUCCESSION
OF SALVATORE PAUL
PROVENZA, SR.

versus

THE CITY OF BOSSIER CITY, Defendants-Appellees
LOUISIANA, BOSSIER PARISH,
LOUISIANA, PAM GLORIOSO,
INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS AN
EMPLOYEE OF THE CITY OF
BOSSIER CITY, LOUISIANA,
AND H & W DEMOLITION, INC.

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 135186

Honorable R. Lane Pittard, Judge

*****

LAW OFFICES OF THOMAS Counsel for Appellants,
BORDELON, LLC Mrs. Salvatore Paul
By: Thomas Bordelon Provenza, Sr., Salvatore
Paul Provenza, Jr., and
Victoria C. Provenza

COOK, YANCEY, KING & GALLOWAY Counsel for Appellees,
By: Robert Kennedy, Jr. The City of Bossier City,
Elizabeth Mendell Carmody Louisiana, Bossier
James Ashby Davis Parish, Louisiana, and
Pam Glorioso,
Individually, and in her
Official Capacity as an
Employee of the City of
Bossier City, Louisiana

LUNN, IRION LAW FIRM, LLC Counsel for Appellee,
By: Ronald Everett Raney H & W Demolition, Inc.
Alexander J. Mijalis

*****

Before GARRETT, HUNTER, and BODDIE (Pro Tempore), JJ.

HUNTER, J., dissents with written reasons.

GARRETT, J.

The plaintiffs, Mrs. Salvatore Paul Provenza Sr., Salvatore Paul

Provenza Jr., Victoria C. Provenza, and the unopened succession of

Salvatore Paul Provenza Sr., appeal from a trial court judgment dismissing

on the grounds of abandonment their suit against the defendants, the City of

Bossier City, Louisiana (“the City”); Bossier Parish, Louisiana; and Pam

Glorioso, individually and in her official capacity as an employee of the

City. For the following reasons, we affirm the trial court judgment.

INTRODUCTION

This litigation began more than ten years ago. Defending a lawsuit is

expensive and defendants have no obligation to advance the litigation.

Where, as here, a matter remains dormant too long, without activity

designed to hasten the matter to judgment, our legislature, in La. C.C.P. art

561, has provided for the consequences – the case is deemed abandoned.

Against this basic explanation of how civil litigation is governed, we will

review what occurred in this case, and explain why the trial court was

correct. In so doing, we join with the first, third, and fifth circuits and

decline to follow the approach taken by the fourth circuit. We hold that the

ex parte motion to continue the trial, without date, filed by the plaintiffs was

not a step in the prosecution of the case, and the case was properly dismissed

as abandoned.

FACTS

The plaintiffs had been the owners of immovable property at 412 and

418 Traffic Street in Bossier City for 75 years. In September 2009, the City

and Bossier Parish expropriated a portion of the plaintiffs’ property in order

to widen Traffic Street. While some of the plaintiffs’ property was included

in the expropriation, they claim that a portion was not in the parameters of

the order and there were buildings on the excluded portions. In January

2010, Victoria Provenza went to a building on the property and discovered

that structures had been demolished by employees of H & W Demolition,

Inc. (“H & W”).1

In January 2011, the plaintiffs filed suit against the defendants

claiming that the demolition was ordered by Glorioso, without a judicial

decree and without notice to the plaintiffs. The plaintiffs asserted that this

turned their property into non-income producing property, the defendants’

actions constituted an illegal use of the plaintiffs’ property, and the actions

were part of a scheme by the City to take the plaintiffs’ property without due

process. According to the plaintiffs, no effort was made to determine if

there was anything in the buildings prior to the demolition. The plaintiffs

urged that they were damaged by the loss of the contents of the structures.

In February 2011, the defendants answered with a general denial.

On January 19, 2012, the defendants filed a motion to compel

discovery alleging that the plaintiffs had failed, after many requests, to

respond to interrogatories and requests for production of documents

propounded to them in March 2011. Although the motion to compel was set

for a hearing in court on March 19, 2012, there is no indication in the record

as to what occurred on that date. The matter was presumably resolved, as

there is no minute entry for that particular date.

1
H & W originally named as a defendant in this matter, filed a motion for
summary judgment in July 2012, arguing that the company did what it was asked to do in
demolishing the buildings and did not have a duty to review or interpret the expropriation
order. No opposition to the motion was filed by the plaintiffs. In February 2013, the trial
court granted summary judgment in favor of H & W, dismissing the plaintiffs’ claims
against the company. That judgment was not appealed.

2

On August 29, 2013, the plaintiffs filed a notice of taking the

deposition of Glorioso, together with a subpoena duces tecum to produce all

records, documents, invoices, materials, contracts, change orders, or other

documentation connected with the plaintiffs’ property and the destruction of

their buildings. Glorioso’s deposition was taken on September 25, 2013.2

On October 15, 2015, a scheduling order was signed by the trial court

setting the case for trial on April 19, 2016.3 On February 23, 2016, the

plaintiffs filed a motion to continue the trial date. The motion provided that

plaintiffs’ counsel had undergone hip replacement surgery and was not

prepared to try the case. The motion also stated that “all counsel are in

agreement to continue the trial of this matter and reschedule at a later date.”

The ex parte motion was not signed by counsel for the defendants. The trial

court signed an order continuing the trial, “to be reset at a later date.”

On August 1, 2016, the plaintiffs filed a motion and order requesting a

status conference in order to schedule a new trial date. The court ordered

that a status conference be held on August 24, 2016. Pursuant to the

scheduling conference held that date, a new scheduling order was signed by

the trial court setting the matter for trial on May 26, 2017.4

On May 17, 2017, the plaintiffs filed another ex parte motion to

continue the trial, to be reset at a later date. This motion recited that

2
According to the defendants’ brief, the depositions of the plaintiffs were also
taken on the same date. The plaintiffs have not disputed this.
3
The record indicates that the defendants requested a scheduling conference in
the trial court, which was held on October 15, 2015, and resulted in the scheduling order
signed that date.
4
This order provided, inter alia, that all discovery requests had to be made no
later than 45 days prior to trial and discovery was to be completed no later than 30 days
before trial, unless extended by the court for good cause shown. No requests for any
extensions of these deadlines were filed.
3

discovery was ongoing. Like the first motion, this one stated, “all counsel

are in agreement to continue the trial of this matter and reschedule at a later

date.” The motion was not signed by counsel for the defendants. The trial

court signed an order on that date, which again continued the matter “to be

reset at a later date.” Notably, the plaintiffs did not file a subsequent motion

and order requesting another status conference to obtain a new trial date, as

had been done earlier.

On June 29, 2018, one of the plaintiffs’ co-counsel filed a motion to

withdraw, and on July 2, 2018, the trial court signed an order granting the

motion.5

On May 11, 2020, the plaintiffs e-filed, with the clerk of court, a

“Notice of Article 1442 Deposition of the City of Bossier City and Subpoena

Duces Tecum.” The notice was physically filed into the record on May 12,

2020.

On May 20, 2020, the defendants filed an ex parte motion for an order

of dismissal on the grounds of abandonment. They argued that the motion to

continue the trial setting without date, filed on May 17, 2017, and the motion

to withdraw, filed on June 29, 2018, were not steps in the prosecution or

defense of the suit and were not sufficient to stop the running of the time for

abandonment of the suit under La. C.C.P. art. 561. They maintained that the

5
It is well settled that a change of counsel via withdrawal, substitution, or
enrollment is not considered a step under La. C.C.P. art. 561 which would prevent
abandonment. See Chevron Oil Co. v. Traigle, 436 So. 2d 530 (La. 1983); Hudson v.
Town & Country Nursing Ctr., LLC, 49,581 (La. App. 2 Cir. 3/4/15), 162 So. 3d 632;
McNealy v. Englade, 2019-0573 (La. App. 1 Cir. 2/21/20), 298 So. 3d 182; Satterthwaite
v. Byais, 05-10 (La. App. 1 Cir. 7/26/06), 943 So. 2d 390; Brown v. Sutherland Lumber,
Inc., 2010-469 (La. App. 3 Cir. 11/3/10), 53 So. 3d 477, writ denied, 11-0411 (La.
4/8/11), 61 So. 3d 690; Bailey v. Bailey, 2018-0521 (La. App. 4 Cir. 11/28/18), 260 So.
3d 764; Savoie v. Larmarque Ford, Inc., 16-221 (La. App. 5 Cir. 12/7/16), 205 So. 3d
1001. The plaintiffs do not argue to the contrary in this appeal.

4

last step in the prosecution of the matter was taken on August 24, 2016,

when the latest scheduling order was signed by the trial court, and the suit

was abandoned on August 25, 2019, three years after that date. The

defendants contended that the filing of a notice of deposition and subpoena

duces tecum by the plaintiffs on May 11, 2020, was too late, as the suit was

already abandoned at that time.

In support of the motion, the defendants’ attorney filed an affidavit

attesting that, from August 25, 2016, to May 10, 2020, a period of more than

three years, no step was taken in the prosecution or defense of this matter, no

formal discovery was served by him on all parties to this matter, and none

was served on him by any other party to this matter. He stated that, since at

least August 25, 2016, no depositions, whether with or without formal

notice, had been taken. He stated that neither the plaintiffs nor the

defendants had taken any step in the prosecution or defense of this matter

between August 25, 2016, and May 10, 2020, a period of more than three

years. He also stated that, since August 25, 2019, the defendants had not

made any unconditional tender, agreed to a trial setting, submitted the case

for decision, sought security for costs, or provoked or responded to

discovery. A certificate from the clerk of court corroborating the dates

contained in the defendants’ motion was also filed, together with a

memorandum of legal authority in support of the motion.

On May 22, 2020, the trial court signed an order granting the

defendants’ ex parte motion, declaring the plaintiffs’ suit abandoned, and

dismissing all their claims without prejudice. On July 6, 2020, the plaintiffs

filed a motion to set aside the order of dismissal and requested that a hearing

be held.
5

At the hearing held in the trial court on September 14, 2020, the

plaintiffs did not offer any evidence to refute the facts contained in the

affidavit of the defendants’ attorney which attested that absolutely no steps

were taken in the prosecution or defense of this matter between August 25,

2016, and May 10, 2020. The attorney for the plaintiffs addressed only legal

issues before the court. The plaintiffs relied upon jurisprudence from the

fourth circuit in support of their argument that the motion to continue the

trial setting, without date, was a step in the prosecution. They maintained

that courts must look at the record to determine if there was intent on the

part of the plaintiffs to abandon the action. However, nothing in the record

was noted and no evidence was offered to support this argument. They

simply made the bare assertion, without any factual support, that there was

no showing they intended to abandon their suit against the defendants.

The defendants acknowledged below that there was a split in the

appellate courts of this state regarding whether a motion to continue a trial

setting without date is a step in the prosecution of a case. They argued that

the fourth circuit jurisprudence relied upon by the plaintiffs was an outlier.

They cited the jurisprudence from the first, third, and fifth circuits finding

that such a motion was not a step in the prosecution. The defense noted that,

although this circuit had not directly addressed the issue, dicta in Futch v.

Horseshoe Casino, 49,144 (La. App. 2 Cir. 7/23/14), 146 So. 3d 818, writ

denied, 14-1934 (La. 11/21/14), 160 So. 3d 973, indicated that the second

circuit would follow the first, third and fifth circuits on this issue.

After considering the arguments of the parties, the trial court ruled

that the suit in this case had been abandoned. In its oral reasons, the trial

court acknowledged the split in the circuits. The court then succinctly noted
6

that the plaintiffs’ motion to continue was the “exact opposite” of a formal

action to hasten the suit toward judgment. On September 23, 2020, the trial

court signed an order denying the motion to set aside the order of

abandonment. The plaintiffs appealed.

ABANDONMENT

The plaintiffs argue that the trial court erred in finding that the matter

was abandoned based upon its determination that a motion to continue a trial

setting, without date, does not constitute a step in the prosecution of the

matter. This argument is without merit.

Legal Principles

La. C.C.P. art. 561 provides, in pertinent part:

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[.]6

....

(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. The sheriff shall serve the order in the manner
provided in Article 1314, and shall execute a return pursuant to
Article 1292.

(4) A motion to set aside a dismissal may be made only
within thirty days of the date of the sheriff’s service of the order
of dismissal. If the trial court denies a timely motion to set
aside the dismissal, the clerk of court shall give notice of the
order of denial pursuant to Article 1913(A) and shall file a
certificate pursuant to Article 1913(D).

(5) An appeal of an order of dismissal may be taken only
within sixty days of the date of the sheriff’s service of the order
of dismissal. An appeal of an order of denial may be taken only

6
1997 La. Acts 1221, eff. July 1, 1998, amended this provision to reduce from
five years to three years the period of time in which an action could be dismissed for lack
of prosecution or defense.
7

within sixty days of the date of the clerk’s mailing of the order
of denial.

....

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.

In order to avoid abandonment: (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. Williams v. Montgomery, 20-01120 (La.

5/13/21), ___ So. 3d ___, 2021 WL 1921078; Louisiana Dep’t of Transp. &

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

978; Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.

2d 779; Allen v. Humphrey, 51,331 (La. App. 2 Cir. 4/5/17), 218 So. 3d 256;

Hutchison v. Seariver Mar., Inc., 09-0410 (La. App. 1 Cir. 9/11/09), 22 So.

3d 989, writ denied, 09-2216 (La. 12/18/09), 23 So. 3d 946.

A “step” is a formal action before the court intended to hasten the suit

toward judgment or is the taking of formal discovery. Williams v.

Montgomery, supra; James v. Formosa Plastics Corp. of La., 01-2056 (La.

4/3/02), 813 So. 2d 335. See also Chevron Oil Co. v. Traigle, supra.

Sufficient action by either plaintiff or defendant will be deemed a step. See

Williams v. Montgomery, supra; Louisiana Dep’t of Transp. & Dev. v.

Oilfield Heavy Haulers, L.L.C., supra.

The underlying policy of the abandonment article seeks to prevent

protracted litigation that is filed for purposes of harassment or without a

8

serious intent to hasten the claim to judgment. Williams v. Montgomery,

supra; Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C.,

supra; McNealy v. Englade, supra. Abandonment is a device that the

legislature adopted to put an end to the then prevailing practice of filing suit

to interrupt prescription, and then letting the suit hang perpetually over the

head of the defendant unless he himself should force the issue. Clark v.

State Farm Mut. Auto. Ins. Co., supra.

La. C.C.P. art 561 provides that abandonment is self-executing; it

occurs automatically upon the passing of three years without a step being

taken by either party, and it is effective without court order. Clark v. State

Farm Mut. Auto. Ins. Co., supra. To avoid a possible waiver of the right to

assert abandonment, a defendant is instructed by La. C.C.P. art. 561 on the

proper procedure to utilize to obtain an ex parte order of dismissal. If,

despite some action by the defendant during the three-year period that

arguably constitutes a waiver, the judge signs the ex parte dismissal order,

the proper procedural mechanism is for the plaintiff to rule the defendant

into court to show cause why the ex parte dismissal should not be vacated,

alleging that the court inadvertently dismissed the suit without noticing that

a party has taken a step in the prosecution or defense of the suit within the

previous three years. Clark v. State Farm Mut. Auto. Ins. Co., supra.

Abandonment functions to relieve courts and parties of lingering

claims by giving effect to the logical inference that a legislatively designated

extended period of litigation inactivity establishes the intent to abandon such

claims. When the parties take no steps in the prosecution or defense of their

claims during that legislatively ordained period, the logical inference is that

the party intends to abandon the claim and the law gives effect to this
9

inference. See Williams v. Montgomery, supra; Clark v. State Farm Mut.

Auto. Ins. Co., supra.

The presumption of abandonment that arises under La. C.C.P. art. 561

as a result of three years of litigation inactivity, however, is not conclusive.

Two jurisprudential, prescription-based exceptions are recognized. 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 plaintiff's control; 7 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. Clark v. State Farm Mut. Auto. Ins. Co., supra.

Moreover, given that dismissal is the harshest of remedies, the general rule

is that La. C.C. P. art. 561 is to be liberally construed and any reasonable

doubt about abandonment should be resolved in favor of allowing the

prosecution of the claim and against dismissal for abandonment. See

Williams v. Montgomery, supra; Clark v. State Farm Mut. Auto. Ins. Co.,

supra.

Abandonment is not a punitive concept; rather, it is a balancing

concept. Abandonment balances two equally sound, competing policy

considerations: on the one hand, the desire to see every litigant have his day

in court, and not to lose same by some technical carelessness or unavoidable

7
Examples of circumstances beyond a plaintiff’s control resulting in a failure to
prosecute include a plaintiff serving in the military, a plaintiff confined to a mental
institution, and a natural disaster. See Juengain v. Tervalon, 2017-0155 (La. App. 4 Cir.
7/26/17), 223 So. 3d 1174, writ denied, 17-1648 (La. 11/28/17), 229 So. 3d 934, and writ
not considered, 17-1648 (La. 1/29/18), 233 So. 3d 607. Proceeding pro se, being
incarcerated, and inaction by a plaintiff’s attorney are not actions beyond the plaintiff’s
control that prevent abandonment. See Juengain v. Tervalon, supra; Haisty v. State,
Dep’t of Transp. & Dev., 634 So. 2d 919 (La. App. 2 Cir. 3/30/94).
10

delay; on the other hand, the legislative purpose that suits, once filed, should

not indefinitely linger, preserving stale claims from the normal extinguishing

operation of prescription. Williams v. Montgomery, supra; Clark v. State

Farm Mut. Auto. Ins. Co., supra. The latter policy consideration parallels

those served by prescriptive statutes – promoting legal finality, barring stale

claims, and preventing prejudice to defendants. Clark v. State Farm Mut.

Auto. Ins. Co., supra. More precisely, the latter prescriptive purpose on

which abandonment is based promotes 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. Clark v. State Farm Mut. Auto. Ins. Co.,

supra.

Abandonment is both historically and theoretically a form of

liberative prescription that exists independent from the prescription that

governs the underlying substantive claim. Clark v. State Farm Mut. Auto.

Ins. Co., supra; P&J Contracting of La., L.L.C. v. Dep’t of Educ., Recovery

Sch. Dist., 2020-0674 (La. App. 1 Cir. 12/30/20), ___ So. 3d ___, 2020 WL

7770234.

For the purposes of determining abandonment, the intent and

substance of a party’s actions matter far more than technical compliance.

Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., supra.

La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a

plaintiff’s action, and any reasonable doubt about abandonment should be

resolved in favor of allowing the prosecution of the claim and against

dismissal for abandonment. However, while the intention of La. C.C.P. art.

561 is not to dismiss actions as abandoned based on technicalities,
11

abandonment is warranted where plaintiff’s inaction during the three-year

period has clearly demonstrated his abandonment of the action. Williams v.

Montgomery, supra; Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy

Haulers, L.L.C., supra.

Whether 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 a manifest

error analysis on appeal. Williams v. Montgomery, supra; Hutchison v.

Seariver Mar., Inc., supra; Brown v. Kidney and Hypertension Assocs.,

L.L.P., 2008-0919 (La. App. 1 Cir. 1/12/09), 5 So. 3d 258. On the other

hand, whether a particular act, if proven, precludes abandonment is a

question of law that is examined by ascertaining whether the trial court’s

decision was legally correct. Williams v. Montgomery, supra; Hutchison v.

Seariver Mar., Inc., supra.

Discussion

As stated by the plaintiffs in their brief, the sole issue in this case

presents a legal question – whether the motion for continuance, without date,

constitutes a step in the prosecution of the matter that would prevent

abandonment. The chronology of this case detailed above is not in dispute.

There are no factual disputes to resolve as the plaintiffs did not offer any

evidence at the hearing. The plaintiffs base their legal argument solely upon

the fourth circuit jurisprudence. They have not addressed the split among

the appellate courts in this state on this issue or acknowledged that the first,

third, and fifth circuits do not recognize such a motion as a step in the

prosecution of a matter. The defendants counter that the trial court correctly

ruled and that the fourth circuit’s approach is wrong.

12

In order to explain why the trial court was correct and the plaintiffs’

argument is without merit, a thorough review of the applicable jurisprudence

is necessary. The first circuit has considered whether a motion to continue,

without date, is a step in the prosecution of a matter that prevents

abandonment. That circuit holds that even 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. See Hutchison v. Seariver Mar., Inc., supra;

Stirling Props., Inc. v. FBF #1, L.L.C., 2010-1575 (La. App. 1 Cir. 3/25/11),

2011 WL 1103241.8

The third circuit has held that an unopposed motion to continue a trial

with the trial date “to be reset at a later date,” the same language used in the

case sub judice, was not a step in the prosecution of the case. Taylor v. Dash

Equip. & Supplies, Inc., 2018-335 (La. App. 3 Cir. 11/7/18), 258 So. 3d 909.

In Taylor, the third circuit found that such a motion was not considered a

step in the prosecution of a case since an indefinite continuance is not

intended to hasten the matter to judgment. See also Barber v. Jefferson,

2017-72 (La. App. 3 Cir. 5/17/17), 221 So. 3d 264; Griffin v. Campbell,

2000-00468 (La. App. 3 Cir. 11/2/00), 772 So. 2d 370; Oliver v. Oliver, 95-

1026 (La. App. 3 Cir. 3/27/96), 671 So. 2d 1081.

The fifth circuit has also held that continuing a hearing, without date,

is not considered a step in the prosecution of the case because it is not

intended to hasten the matter to judgment and does not qualify as a step that

8
See and compare Hinds v. Glob. Int’l Marine, Inc., 2010-1452 (La. App. 1 Cir.
2/11/11), 57 So. 3d 1181, in which the first circuit found that a motion to continue a
matter with a request that the trial court reset a date for the hearing, with an
accompanying order, was a step in the prosecution of the suit.
13

interrupts the accrual of the abandonment period. See First Bank & Tr. v.

Proctor’s Cove II, LLC, 19-299 (La. App. 5 Cir. 12/30/19), 287 So. 3d 888;

Savoie v. Larmarque Ford, Inc., supra; Bourg v. Entergy Louisiana, LLC,

12-829 (La. App. 5 Cir. 4/10/13), 115 So. 3d 45, writ denied, 13-1064 (La.

6/21/13), 118 So. 3d 421.

Although the precise issue presented for review in this case has never

been directly addressed by this court, there is some indication that we would

follow the reasoning of the first, third, and fifth circuits. In Futch v.

Horseshoe Casino, supra, this court considered a workers’ compensation

case in which the defendant argued that the plaintiff’s claim should have

been dismissed for want of prosecution under La. R.S. 23:1209(D), a

workers’ compensation statute similar to La. C.C.P. art. 561. The defendant

argued that the plaintiff had continued or acquiesced in the continuance of

the matter numerous times and the matter had been pending for more than

five years. The plaintiff pointed out that all motions for continuance

included a prayer to reset the trial date. This court observed the analogy

between the two abandonment statutes and recognized that, “Ordinarily, a

motion to continue does not constitute a step in the prosecution of the case.”

This court found that, based upon activity in the case and representations by

both parties that settlement negotiations were underway, the WCJ’s ruling

that the claim had not been abandoned should be affirmed.9

9
See and compare Putch v. Straughan, 397 So. 2d 38 (La. App. 2 Cir. 1981), writ
denied, 401 So. 2d 976 (La. 1981), in which we found that, where a case was continued
for argument, without date, but was not submitted to the court for decision, this did not
constitute a step in the prosecution sufficient to prevent abandonment. We stated that it
was the plaintiff’s responsibility to request that the trial judge fix a date for the argument.
Failing to take that step in the prosecution for the requisite period of time for
abandonment, the plaintiff was deemed to have abandoned the action under La. C.C.P.
art. 561.

14

By contrast, the fourth circuit has not decided the question in the same

way as the other circuit courts that have dealt with the issue. In Dean v.

Delacroix Corp., 2012-0917 (La. App. 4 Cir. 12/26/12), 106 So. 3d 283, writ

denied, 13-0485 (La. 4/26/13), 112 So. 3d 844, the fourth circuit considered

whether an order granting a motion for continuance, without date,

interrupted the time for abandonment of an action. The fourth circuit had

evidence of other activity in the suit that possibly would have constituted a

step in the prosecution of the case, but instead, without citing any authority

for its conclusion, determined that, because the case was progressing to trial

until it was continued, the date the trial court signed the order granting the

continuance was “the operative date to begin the tolling of the three-year

abandonment rule.”

In Heirs of Simoneaux v. B-P Amoco, 2013-0760 (La. App. 4 Cir.

2/5/14), 131 So. 3d 1128, writ denied, 14-0600 (La. 5/16/14), 144 So. 3d

1035, the plaintiffs filed suit in December 1999, and amended their petitions

in 2000, 2001, and 2004. No answers were filed to any of the petitions. In

March 2008, the plaintiffs filed a motion for a status conference, which was

set for August 28, 2008. Allegedly, a telephone conference was held on that

date, resulting in an indefinite continuance of the matter. The plaintiffs

alleged that the parties agreed that the telephone conference would be a step

in the prosecution of the matter, but the defendants denied any such

agreement. The minutes and the record did not show that the telephone

conference ever took place. On August 23, 2011, the plaintiffs filed a

motion for a status conference and the defendants filed a motion to dismiss

the case as abandoned. According to the defendants, the last step in the

prosecution of the case was the motion for a status conference in March
15

2008. Relying to some extent on Dean v. Delacroix Corp., supra, the fourth

circuit found that the last step in the prosecution of the case occurred on the

date of the telephone conference.

The dissent in Heirs of Simoneaux v. B-P Amoco, supra, pointed out

significant flaws in the fourth circuit’s reasoning in that case and in Dean v.

Delacroix Corp., supra. The jurisprudence provides that, with the exception

of discovery, steps in the prosecution of a case must appear on the record. In

Simoneaux, the telephone conference occurred off the record. The dissent

noted that the parties jointly requested a continuance of the status conference

and all further proceedings in the case, and observed that in London Livery,

Ltd. v. Brinks, 2008-0230 (La. App. 4 Cir. 12/10/08), 3 So. 3d 13, the fourth

circuit held that a motion for an extension of time was not a step toward

prosecution of the case under La C.C.P. art. 561 because it was not an action

intended to hasten the matter to judgment. According to the dissent, “When

it comes to hastening an action toward judgment, I see no difference

between a motion for an extension of time and a motion to indefinitely

continue proceedings, and neither do our sister courts. A joint motion to

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

The dissent also noted that, to the extent that Dean v. Delacroix Corp.,

supra, held that an order by the trial court granting an indefinite continuance

is sufficient to interrupt an abandonment period, that holding was at odds

with prior fourth circuit case law and the plain text of La. C.C. P. art. 561.

The dissent cited Argence, L.L.C. v. Box Opportunities, Inc., 2011-1732 (La.

App. 4 Cir. 5/23/12), 95 So. 3d 539, which concluded that a party must take

the step to move the case to final disposition, not the trial judge.

16

In Delacruz v. Anadarko Petrol. Corp., 2014-0433 (La. App. 4 Cir.

12/3/14), 157 So. 3d 790, the fourth circuit again held that the trial court’s

order continuing a trial without date was a step in the prosecution preventing

abandonment of the action, citing Dean v. Delacroix Corp., supra, and Heirs

of Simoneaux v. B-P Amoco, supra. The same judge who dissented in

Simoneaux dissented in Delacruz, again opining that neither a continuance,

without date, nor an order by the trial court granting the continuance without

date constitutes a step in the prosecution of a case because it does not hasten

the case toward trial and judgment. The dissent noted that the fourth

circuit’s decision and reasoning in Dean, Simoneaux, and Delacruz conflicts

“with our sister circuits and this Court’s own prior caselaw.” The dissent

stated that, “A continuance without date signals an indefinite delay of trial

rather than a step toward trial.”

The case primarily relied upon by the plaintiffs, both below and

before us, is Fischer v. Chad Rogers, Cuvee, L.L.C., 2019-0337 (La. App. 4

Cir. 10/9/19), 280 So. 3d 1199, writ granted, 2019-01808 (La. 1/22/20), ___

So. 3d ___, 2020 WL 415828. There the fourth circuit again held that,

where a trial date has been selected and the matter is proceeding toward that

trial date, an order continuing trial, without date, qualifies as a step in the

prosecution of the case. The fourth circuit stated that it was bound by that

court’s precedent in Dean, Simoneaux, and Delacruz. The court noted that

other circuits do not follow this rule, but did not find those holdings

persuasive in the face of contrary precedent in the fourth circuit. Another

judge of the fourth circuit concurred in the result, but noted that there is a

17

split in the circuits as to whether continuing a trial, without date, constitutes

a step in the prosecution of the case pursuant to La. C.C.P. art. 561.10

Prior to Dean and its progeny, the fourth circuit correctly recognized

that filing a motion for continuance, with a date set for the trial, constituted a

step in the prosecution of the action that prevented abandonment. It should

also be noted that 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, 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. In fact, it

is interesting that even the fourth circuit has found that opposition to a

continuance was a step in the prosecution of the matter that would prevent

abandonment. See Reed v. Finklestein, 2001-1015 (La. App. 4 Cir. 1/16/02),

807 So. 2d 1032, writ denied, 02-0550 (La. 4/26/02), 814 So. 2d 560. In the

case sub judice, although the plaintiffs said that the parties agreed to the

continuance, the motion was ex parte and was not signed by any

representative for the defendants.

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

10
The Louisiana Supreme Court granted writs in Fischer in January 2020, but the
case was never docketed for oral argument. According to the Louisiana Supreme Court
clerk’s office, the writ application was later withdrawn. Thus, our supreme court has not
yet resolved the split in the circuits.
18

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. See Clark v. State Farm Mut. Auto. Ins. Co.,

supra; Williams v. Montgomery, supra. Accordingly, we hold that the

plaintiffs’ filing of the motion to continue in this case, without date, does not

constitute a step in the prosecution of the case that prevented abandonment.

The plaintiffs also argue that they “clearly” did not intend to abandon

the action because they “engaged in discovery pre-trial motion practice.”

They claim that this is supported by the filing of the discovery motion on

May 11, 2020. To the contrary, this argument is not supported by the record

or the jurisprudence. As set forth above, the motion to continue, without

date, filed on May 17, 2017, was not a step in the prosecution of the case.

The last step in the prosecution of this case occurred on August 24, 2016,

when a scheduling conference was held and an order was signed by the trial

court setting the matter for trial. The time for abandonment ran on August

25, 2019. Even though the ex parte motion to continue filed on May 17,

2017, stated that discovery was ongoing and would not be completed by the

trial date, there was no showing by the plaintiffs that any discovery of any

kind was undertaken in the three-year period after August 24, 2016.11 As

11
We also note that the motion for a continuance, without date, filed on May 17,
2017, was the second motion for continuance filed by the plaintiffs. It was never
followed up with another request for a scheduling conference to set a new trial date as
was previously done.
19

referenced above, the parties had already taken depositions back in

September 2013. At the hearing on the motion to dismiss the judgment of

abandonment, defendants’ counsel stated that, when he received the

discovery request, in May 2020, he had to “dig the case out of the morgue

and look at it.” At that point, it had been three years and eight months since

any action at all had been taken in the case by either party, prompting the

motion to dismiss for abandonment.

The defendants filed the affidavit required by La. C.C.P. art. 561 with

their motion to dismiss for abandonment. That sworn statement provides

that no action, including discovery by any party, occurred between

August 25, 2016, and May 10, 2020. The plaintiffs had every opportunity at

the hearing on the motion to set aside the order of dismissal for

abandonment to show that discovery or any other qualifying step occurred

during the three-year period to stop the claim from being abandoned. They

simply did not do so. The filing of the discovery motion on May 11, 2020,

was too late. The tardy discovery motion could not serve to resurrect the

plaintiffs’ abandoned action. Further, merely saying that discovery was

ongoing, without any proof to show that discovery was undertaken, is

insufficient. While the plaintiffs argue that it was clear that they did not

intend to abandon their suit, they point to nothing to show any activity

whatsoever. Abandonment is warranted where, as here, the plaintiffs’

inaction during the three-year period clearly demonstrates the abandonment

of the action.

This case was filed more than ten years ago, and the plaintiffs failed to

take any steps whatever for a three-year period to hasten the matter to

judgment. The trial court’s ruling that the plaintiffs’ claim is abandoned was
20

correct. It advances the purposes of La. C.C.P. art. 561, to promote legal

finality, to bar stale claims, and to prevent prejudice to the defendants. To

decide otherwise would allow this matter to “hang perpetually over the head

of the defendant unless he himself should force the issue.”

CONCLUSION

For the reasons stated above, we affirm the trial court judgment

dismissing, without prejudice, the plaintiffs’ suit against the defendants on

the grounds of abandonment. Costs in this court are assessed to the

plaintiffs.

AFFIRMED.

21

HUNTER, J., dissenting.

Because dismissal is the harshest of remedies, the general rule is any

reasonable doubt should be resolved in favor of allowing the prosecution of

the claim and against dismissal for abandonment. Louisiana Dep’t of

Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11),

79 So. 3d 978; Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.

5/15/01), 785 So. 2d 779.

In the instant case, the trial date was scheduled for May 26, 2017.

However, on May 17, 2017, the plaintiffs filed a motion to continue,

asserting “all counsel are in agreement to continue the trial of this matter

and reschedule at a later date.” (Emphasis added). The trial court signed

the order stating the matter was “continued to be reset at a later date.”

I recognize a motion to continue does not “ordinarily” constitute a

step in the prosecution of a case. Futch v. Horseshoe Casino, 49,144 (La.

App. 2 Cir. 7/23/14), 146 So. 3d 818, 824-25, writ denied, 2014-1934 (La.

11/21/14), 160 So. 3d 973; Taylor v. Dash Equipment & Supplies, Inc.,

2018-0335 (La. App. 3 Cir. 11/7/18), 258 So. 3d 909; Hutchison v. Seariver

Maritime, Inc., 2009-0410, (La. App. 1 Cir. 9/11/09), 22 So. 3d 989.

Nevertheless, under the facts of this case, I do not believe this record

“clearly demonstrated” the plaintiffs abandoned the action. In the motion to

continue, the plaintiffs averred discovery was ongoing. The defendants did

not oppose the motion to continue the trial. In fact, during oral arguments

before this Court, defense counsel admitted they agreed to the continuance

and they were not ready to proceed to trial. Finally, if the continuance was

not considered a step in the prosecution under the code of civil procedure

1

and related jurisprudence, then the abandonment should have occurred

sooner.

For these reasons, I respectfully dissent.

2