Darryl Boudreaux v. Simoneaud Grocery & Market, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-511

DARRYL BOUDREAUX

VERSUS

SIMONEAUD GROCERY & MARKET, INC.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 99,585
HONORABLE WILLIAM D. HUNTER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Elizabeth
A. Pickett, and James T. Genovese, Judges.

REVERSED.

Morris M. Haik, Jr.
209 French Street
New Iberia, LA 70560
(337) 560-4357
Counsel for Defendant/Appellee:
Simoneaud Grocery & Market, Inc.

D. Brennan Stockstill
340 Weeks Street
New Iberia, LA 70560
(337) 365-2772
Counsel for Plaintiff/Appellant:
Darryl Boudreaux

SULLIVAN, Judge.

The plaintiff , Darryl Boudreaux, appeals the dismissal of his suit, arguing that

the trial court erred in finding it was abandoned under La.Code Civ.P. art. 561. For

the following reasons, we reverse.

Factual and Procedural Background

The plaintiff filed the petition in this matter on December 10, 2002, alleging

that he had incurred medical expenses as the result of an automobile accident. He

asserted that he had medical benefits coverage through his wife’s employer,

Simoneaud Grocery & Market, Inc. (Simoneaud), and that coverage for his medical

expenses had been denied. The plaintiff sought payment of his past medical expenses

and damages, including an award for past and future anguish/emotional distress, as

well as penalties “pursuant to La.R.S. 22:657, et seq.”

On September 7, 2006, Simoneaud filed a motion and order to dismiss, arguing

that “no steps have been taken in the prosecution or defense of this matter for a period

in excess of three (3) years, and therefore all claims in this matter as against all

parties, including any incidental demands, should be dismissed as abandoned

pursuant to La.C.C.P. Art. 561[.]” The trial court signed the order of dismissal.

Thereafter, the plaintiff filed a motion seeking to set aside the order of

dismissal, asserting that he had forwarded discovery requests in August 2003 and

February 2006 that interrupted the three-year abandonment period. The trial court

signed an order setting aside the dismissal and reinstated the suit.1

Simoneaud responded to the reinstatement with a motion and order for

reconsideration of the September 26, 2006 ruling. In opposition, the plaintiff again

1
It appears that the initial order of dismissal, as well as the subsequent order setting aside that
dismissal, was signed by a judge other than the one to which the case was allotted upon filing.

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argued that the requests for discovery interrupted the abandonment period and, for the

first time, asserted that Simoneaud had paid his medical expenses, thus waiving its

right to assert that he had abandoned his suit. Following a hearing, the trial court

dismissed the plaintiff’s suit with prejudice.

The plaintiff appeals the dismissal, designating the following as error:

1. The tr[ia]l court manifestly erred and abused its discretion by not
considering the extrinsic evidence of the defense’s tender (the
check and accompanying correspondence for payment of medical
bills) in ruling in favor of defense’s Motion for Abandonment.

2. The trial court manifestly erred and abused its discretion by not
considering and ruling the unconditional tender constituted either
a step in defense of this action or a waiver of the right to have the
suit declared abandoned and therefore dismissed.

3. The trial court manifestly erred and abused its discretion by not
considering and ruling that re-mailing previously propounded
discovery which has been served on all parties effectively re-
propounds the discovery and shall be deemed to be a step in the
prosecution of an action.

4. The trial court manifestly erred and abused its discretion by
signing a Judgment dismissing the suit with prejudice when the
prescriptive period for a contractual obligation (LSA-R.S. 22:658)
is ten (10) years.

Discussion

Abandonment is controlled by La.Code Civ.P. art. 561, which 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, unless it is a succession proceeding:

....

(2) 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 taken for a period of three years 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. . . .

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....

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.

As explained in Clark v. State Farm Mutual Automobile Insurance Co.,

00-3010 (La. 5/15/01), 785 So.2d 779, a party’s right to assert abandonment may be

waived. In Clark, the plaintiff, who was injured in a car accident, settled his claim

against the insurer of the driver of the other vehicle for policy limits. He filed suit on

January 16, 1996 against his UM insurer, State Farm, to recover the remainder of his

damages. The plaintiff withheld service of the petition but forwarded State Farm

copies of the petition and his medical records. On October 14, 1996, State Farm

forwarded a $3,000.00 check to the plaintiff along with correspondence stating that

this was an unconditional tender. Neither party took other action until June 15, 1999,

when the plaintiff filed a copy of the tendered check and correspondence into the

record and requested that State Farm be served with a copy of the petition. On

August 2, 1999, State Farm sought to have the suit dismissed as abandoned. The trial

court found that the unconditional tender was a step in the defense of the case, which

interrupted the abandonment period and caused it to run anew. On State Farm’s

application for supervisory writs, the court of appeal reversed.

After granting certiorari, the supreme court analyzed whether a party’s actions

must be on the record to constitute “steps” in the prosecution or defense of the suit.

The supreme court explained:

The rule requiring that a party’s action be on the record is
designed to protect a defendant. The rule is intended to ensure notice to
the defendant of actions taken that interrupt abandonment. The purpose
underlying the rule is not present when, as here, it is the defendant
taking action and doing so in defense of plaintiff’s suit to avoid

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penalties and attorney’s fees. Based on this rationale, we concluded
earlier in this opinion that the remark in Melancon [v. Continental
Casualty Co., 307 So.2d 308 (La.1975)] precluding the consideration of
conduct not on the record in determining if defendant’s conduct
constituted a waiver was mistaken. Repeating, we conclude that to the
extent a defendant’s conduct would amount to a waiver as an
acknowledgment if taken after the abandonment period has elapsed,
such pre-abandonment acknowledgment can also be established by
evidence outside the record to be a waiver, which serves to recommence
the abandonment period running anew.

If the defendant’s conduct in this case was simply informal
settlement negotiations, as defendant contends and the court of appeal
concluded, then the waiver exception would not apply, and the general
rule requiring formal action would apply. This case, however, presents
an entirely different factual scenario: an unconditional tender.

An unconditional tender is made to a plaintiff “not in settlement
of the case, but to show [the insurer’s] good faith in the matter and to
comply with the duties imposed upon them under their contract of
insurance with the insured.” McDill v. Utica Mutual Insurance Co., 475
So.2d 1085, 1091-92 (La.1985). A tender made to satisfy the
requirements of La.Rev.Stat. 22:658(A)(1) must be unconditional, i.e.,
with “no strings attached,” and thus, by definition, cannot be a
settlement offer. The court of appeal’s characterization of the tender as
part of informal negotiations was thus erroneous.

Clark, 785 So.2d at 790-91 (footnote omitted). Thus, the supreme court determined

that State Farm’s pre-abandonment unconditional tender, although made outside of

the record, was an acknowledgment and thus within the waiver exception, which

resulted in interruption of the abandonment and a recommencement of the

abandonment period from the date of the tender. Id. In so ruling, the supreme court

noted that the result reached was “consistent with the policy considerations

underlying abandonment that require any doubt be construed in favor of maintaining

a plaintiff’s action.” Id. at 793.

Relying on Clark, the plaintiff asserts that Simoneaud acknowledged liability

by issuing two checks to his medical providers in September 2003, thereby waiving

its right to assert abandonment.

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The checks, which were entered into evidence by the plaintiff at the hearing on

Simoneaud’s motion for reconsideration, were made payable directly to two of the

plaintiff’s health care providers. The checks were accompanied by correspondence

from Simoneaud’s counsel in this matter, along with detailed billing statements from

the health care providers. Both of the checks were written for the full amounts due

the health care providers, and both contained notations that they were being paid for

services rendered to Darryl Boudreaux, Sr.

Clearly, Simoneaud was seeking to avoid liability to the plaintiff for penalties

under La.R.S. 22:657 when it paid the full amounts due his health care providers for

services rendered to him as a result of the subject automobile accident. Moreover, the

payments were sent directly to the health care providers rather than to the plaintiff or

his attorney, and no argument has been made that the payments would serve to satisfy

his claims against Simoneaud. Indeed, the plaintiff was not given the opportunity to

accept or reject the payments made on his behalf. We conclude that the payments by

Simoneaud were made unconditionally and thus constituted tacit acknowledgments

of the plaintiff’s claim sufficient to waive its right to assert that he had abandoned his

action. (Cf. Mallett v. McNeal, 05-2289, 05-2322 (La. 10/17/06), 939 So.2d 1254,

where the supreme court held that a liability insurer’s issuance of two checks in

payment of insured’s property damage before suit was filed constituted an

acknowledgment sufficient to interrupt prescription thereby making plaintiff’s suit

timely even though it was filed more than one year after the date of the accident).2

Having so found, we need not determine whether the trial court erred in its

finding that the re-mailing of previously propounded discovery by counsel for

2
While we recognize that Mallet dealt with La.R.S. 22:658 rather than La.R.S. 22:657, which
is at issue herein, we nonetheless find the supreme court’s analysis pertinent to the issue before us.

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plaintiff amounted to a step in the prosecution of this action. Moreover, because we

have determined that the trial court erred in dismissing the plaintiff’s suit, we likewise

need not determine whether the dismissal should have been with or without prejudice.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the

plaintiff’s suit is reinstated. All costs of this appeal are assessed against the

defendant, Simoneaud Grocery & Market, Inc.

REVERSED.

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