Troy Morgan v. Louisiana dept.of Pub. Saf.& Corr

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-750

TROY MORGAN

VERSUS

LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS,
ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT,
PARISH OF BEAUREGARD, C-2005-0574
HONORABLE HERMAN I. STEWART, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

C. Kerry Anderson
Anderson & Anderson
P.O. Box 1025
DeRidder, LA 70634-1025
(337) 463-2100
Counsel for Plaintiff-Appellant:
Troy Morgan

George O. Luce, Special Assistant Attorney General
Oats & Hudson
343 Third Street, Suite 550
Baton Rouge, LA 70801
(225) 383-9993
Counsel for Defendant-Appellee:
State of Louisiana through the Department of
Public Safety and Corrections, et al.

PAINTER, Judge.

Plaintiff, Troy Morgan, appeals the dismissal of suit against Defendants, the

State of Louisiana through the Department of Public Safety and Corrections, on the

ground of abandonment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 2000, Troy Morgan, an inmate at Phelps Correctional Center

in DeQuincy, Louisiana, filed suit against the State of Louisiana through the

Department of Public Safety and Corrections, Phelps Corrections Center, Warden Jim

Rogers, Dr. Clarence Snyder, and Richard Stalder as the Secretary of the Department

of Public Safety and Corrections in the Nineteenth Judicial District Court. The suit

alleged that he broke his arm in a fall from a stepladder while on work detail on

December 7, 1999, and was treated at Moss Regional Hospital but that Defendants

failed to provide him with his prescribed pain medication and did not allow him to

return to the hospital for necessary treatment. On March 17, 2000, Rogers, Snyder,

and Stalder filed an answer and request for written notice. On April 3, 2000, Morgan

filed a motion for leave to file an amending and supplemental petition. The order

granting leave was signed April 4, 2000, and the amending and supplemental petition

was filed. On March 31, 2003, Morgan filed a second amending and supplemental

petition requesting that his suit be transferred from the Nineteenth Judicial District

Court to the Thirty-Sixth Judicial Court under La.R.S. 15:1181, et seq., the Prison

Litigation Reform Act of 1997. On November 10, 2003, Morgan’s request for

transfer was granted by the Nineteenth Judicial District Court. On December 18,

2003, a judgment issued ordering the clerk of the Nineteenth Judicial Court to

transfer the matter to the Thirty-Sixth Judicial District Court. Nothing else appears

of record until September 21, 2006, when Morgan sent a letter dated August 12, 2006,

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to the clerk of the Thirty-Sixth Judicial District Court. This letter indicated that he

was attempting to retain new counsel since his previous counsel had informed him

that he would no longer be able to represent him. Morgan’s letter also attached a

letter written July 31, 2006, by Morgan’s attorney, indicating that his office had been

destroyed by Hurricane Katrina and that because of the resulting financial difficulties,

he could no longer represent Morgan. Morgan obtained new counsel, and, on July

17, 2007, his new counsel formally enrolled. On October 16, 2007, his new counsel

propounded interrogatories and a request for production of documents to Snyder. On

November 13, 2007, Defendants filed an ex parte motion for dismissal on the ground

of abandonment. Judgment dismissing Morgan’s suit was signed November 13,

2007. Morgan filed a motion to set aside the dismissal on December 20, 2007.

Judgment denying that motion was signed April 2, 2008. This appeal followed.

DISCUSSION

Louisiana Code of Civil Procedure Article 561 provides, 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. . . .

(2) If a party whose action is declared or claimed to be abandoned
proves that the failure to take a step in the prosecution or defense in the
trial court or the failure to take any step in the prosecution or disposition
of an appeal was caused by or was a direct result of Hurricane Katrina
or Rita, an action originally initiated by the filing of a pleading prior to
August 26, 2005, which has not previously been abandoned in
accordance with the provisions of Subparagraph (1) 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 five years. . . .

....

(6) The provisions of Subparagraph (2) of this Paragraph shall
become null and void on August 26, 2010.

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The amendment that provided those portions of Article 561 concerning

Hurricanes Katrina and Rita became effective July 9, 2007. The issue in this case is

whether this amendment applies to this case. Morgan contends that since Article 561

is procedural in nature, it should be applied retroactively. Defendants contend that

the 2007 amendment cannot revive Morgan’s claim because it was already abandoned

before the legislature acted.

In Chance v. American Honda Motor Co., Inc., 93-2582, pp. 2-3 (La. 4/11/94),

635 So.2d 177, 178 (footnote omitted) (first alteration in original), the supreme court

discussed the issue of revival of a prescribed claim by the legislature as follows:

Although prescriptive statutes are generally procedural in nature, the
revival of an already prescribed claim presents additional concerns. For
while the defendant does not acquire anything during the running of the
prescriptive period, once the time period has elapsed, the legislature
grants the defendant the right to plead the exception of prescription in
order to defeat the plaintiff’s claim. La.Code Civ.P. arts. 927 & 934.
Because the defendant acquires the right to plead the exception of
prescription, a change in that right constitutes a substantive change in
the law as applied to the defendant. See St. Paul Fire & Marine Ins. Co.
v. Smith, 609 So.2d 809, 817 (La.1992) (“Substantive laws either
establish new rules, rights, and duties or change existing ones.”);
Thomassie v. Savoie, 581 So.2d 1031, 1034 (La.App. 1st Cir.1991) (“[I]f
a statute which is remedial or procedural also has the effect of making
a change in the substantive law, it must be construed to operate
prospectively only.”). Thus, were we to interpret the amendment at
issue to allow the revival of prescribed causes of action, the substantive
rights of the defendant would be materially changed because he would
be stripped of this acquired defense. Guided by the principles
established in [La.Civ.Code] article 6, we require, at the very least, a
clear and unequivocal expression of intent by the legislature for such an
“extreme exercise of legislative power.”

It is important to note that the abandonment provision is self-executing such

that it occurs automatically upon the passing of three-years without a step being taken

by either party, and it is effective without court order. La.Code Civ.P. art. 561; Clark

v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779.

Furthermore, abandonment is a species of prescription. Johnson v. Calcasieu Parish

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Sheriff’s Dept., 06-1179 (La.App. 3 Cir. 2/7/07), 951 So.2d 496. The trial court

expressly found that this suit abandoned before the effective date of the amendment

to Article 561. We agree and find that the 2007 amendment to Article 561 is not

applicable to Morgan’s case. At the earliest, Morgan’s case abandoned by operation

of law on March 31, 2006. The trial court indicated that the matter may have

abandoned, at the latest, on December 18, 2006, three years after the transfer order

was signed. In either case, the matter had abandoned before the amendment was

effective. We note that neither the letter from Morgan nor the motion and order to

enroll filed by his new counsel constituted steps in the prosecution. See Stemley v.

Foti, 40,379 (La.App. 2 Cir. 10/26/05), 914 So.2d 642, writ denied, 06-224 (La.

4/24/06), 926 So.2d 551, and Bertrand v. State ex rel. Dept. of Transp. and Dev., 02-

1163 (La.App. 3 Cir. 2/5/03), 838 So.2d 136, writ denied, 03-634 (La. 5/2/03), 842

So.2d 1105. The amendment expressly states that it applies to matters which have not

“previously been abandoned in accordance with the provisions of Subparagraph (1)

of this Paragraph.” “Only those prescriptive periods that were running could be

affected by the change.” Lambert v. Roussel, 07-1109, p. 9 (La.App. 1 Cir. 5/2/08),

991 So.2d 8, 13, writ denied, 08-1193 (La. 9/19/08), ___ So.2d ___1. The amendment

cannot serve to revive an already prescribed claim.

DECREE

For the foregoing reasons, the judgment dismissing Plaintiff’s suit is affirmed.

All costs of this appeal are assessed against Plaintiff-Appellant, Troy Morgan.

AFFIRMED.

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2008 WL 4610430.

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