Cole's Construction Crews, Inc. v. J-O-B Operating Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-147

COLE’S CONSTRUCTION CREWS, INC.

VERSUS

J-O-B OPERATING COMPANY

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 71911
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED AND REMANDED.

Allan L. Durand
Attorney at Law
235 La Rue France
Lafayette, Louisiana 70508
(337) 237-8501
Counsel for Plaintiff/Appellant:
Cole’s Construction Crews, Inc.

Edmond L. Guidry, III
Attorney at Law
324 South Main Street
St. Martinville, Louisiana 70582
(337) 394-7116
Counsel for Plaintiff/Appellant:
Cole’s Construction Crews, Inc.

Glenn L. Langley
B. Lee Carr, Jr.
Hargrove, Smelley, Strickland & Langley
401 Market Street, Suite 600
Shreveport, Louisiana 71101
(318) 429-7200
Counsel for Defendant/Appellee:
J-O-B Operating Company

KEATY, Judge.

Cole‟s Construction Crews, Inc. (Cole‟s) appeals from a judgment denying

its motion to set aside an ex parte order which dismissed its suit against J-O-B

Operating Company (JOB) on the grounds of abandonment. For the following

reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Cole‟s filed a suit on open account against JOB on April 2, 2007. After JOB

filed an answer and affirmative defenses, Cole‟s propounded interrogatories and

requests for production on JOB on October 29, 2007. JOB answered the discovery

and served its responses on Cole‟s on July 28, 2009.

On June 27, 2011, JOB filed a motion to dismiss suit on grounds of

abandonment. Cole‟s filed a motion requesting that the trial court schedule a

hearing on the motion to dismiss. JOB opposed Cole‟s motion, contending that the

law did not provide for a hearing on a motion to dismiss for abandonment. After

an ex parte order granting the motion to dismiss was signed on July 6, 2011, Cole‟s

filed a rule to set aside the order of dismissal.1 JOB opposed the rule. Following a

hearing, the trial court denied Cole‟s motion to set aside the dismissal.

Cole‟s now appeals, asserting that the dismissal of its suit on grounds of

abandonment when JOB served answers to interrogatories on Cole‟s less than two

years earlier was reversible error. Cole‟s further contends that the granting of a

motion to dismiss for abandonment was reversible error when the motion was not

accompanied by the affidavit required by La.Code Civ.P. art. 561.

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At the August 10, 2011 hearing on the motion to set aside the dismissal before Judge
Wattigny, the judge to whom this matter was alloted, counsel for JOB explained that the motion
to dismiss had been signed by Judge Comeaux.

DISCUSSION

Louisiana Code of Civil Procedure Article 561, entitled “Abandonment in

trial and appellate court” 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,
unless it is a succession proceeding:

....

(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.

....

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.

Louisiana Code of Civil Procedure Article 1474(C)(4) provides that “[t]he

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.” “Interrogatories and the answers thereto” are listed in

Article 1474(B) and, therefore, are some of the types of discovery materials

referenced in Article 1474(C)(4).

In Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, pp. 5-6

(La. 5/15/01), 785 So.2d 779, 784 (footnote omitted), the Louisiana Supreme Court

noted:

Article 561 has been construed as imposing three requirements
on plaintiffs. First, plaintiffs must take some “step” towards
prosecution of their lawsuit. In this context, a “step” is defined as
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taking formal action before the court which is intended to hasten the
suit toward judgment, or the taking of a deposition with or without
formal notice. Second, the step must be taken in the proceeding and,
with the exception of formal discovery, must appear in the record of
the suit. Third, the step must be taken within the legislatively
prescribed time period of the last step taken by either party; sufficient
action by either plaintiff or defendant will be deemed a step.

Article 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. To
avoid a possible waiver of the right to assert abandonment, a
defendant is instructed by Article 561 on the proper procedure to
utilize to obtain an ex parte order of dismissal. If despite some action
by 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 defendant into court
to show cause why the ex parte dismissal should not be vacated. . . .”

The Clark court then referenced the following two prescription-based

jurisprudential exceptions to the abandonment rule which allow the trial court to

considerer evidence outside of the record in determining whether a case has been

abandoned.

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; 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.

Id. at 784-85.

“The jurisprudence has uniformly held that La. C. Civ. Pro. art. 561 is to be

liberally construed in favor of maintaining a plaintiff‟s suit.” Id. at 785.

Dismissal of a plaintiff‟s lawsuit is the harshest of remedies. Thus,
the law favors, and justice requires, that an action be maintained
whenever possible so that the aggrieved party has the day in court to
which he is entitled. For these reasons, courts have declined to allow
form to prevail over substance in deciding if an action has been truly
abandoned and declined to allow suits to be dismissed based on mere
technicalities.

Tessier v. Pratt, 08-1268, p. 6 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 772-73

(citation omitted).

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Generally, the issue of abandonment concerns a question of
law. The scope of appellate review for issues of law is simply to
determine whether the trial court‟s interpretative decision is legally
correct. When the trial court‟s decision is based on an erroneous
application of law, rather than on a valid exercise of discretion in the
underlying factual determinations, the decision is not entitled to
deference by the reviewing court and, instead, is subject to a de novo
review.

Id. at 773 (citation omitted).

The Louisiana Supreme Court has explained how courts of this state are to

interpret statutes:

“[L]egislation is the solemn expression of the legislative will and,
therefore, the interpretation of a law primarily involves the search for
the legislature‟s intent. The starting point in ascertaining that
legislative intent is the language of the statute itself. In examining
that language, words and phrases are to be read in their context and to
be accorded their generally prevailing meaning. LSA-C.C. art. 11;
LSA-R.S. 1:3.”

City of New Orleans v. La. Assessors’ Ret. & Relief Fund, 05-2548, pp. 19-20 (La.

10/1/07), 986 So.2d 1, 16-17 (citations omitted). “When a law is clear and

unambiguous and its application does not lead to absurd consequences, the law

shall be applied as written, and no further interpretation may be made in search of

the legislature‟s intent. LSA–C.C. art. 9; LSA–R.S. 1:4.” Id. at 17.

Did Defendant’s Service of Answers to Interrogatories Constitute a Step in the
Defense of the Case or Amount to a Waiver of its Right to Claim Abandonment?

In 1983, our supreme court stated in Chevron Oil Co. v. Traigle, 436 So.2d

530, 532 (La.1983) that the “filing of answers to interrogatories are „steps‟ in the

prosecution of the suit.”2 Cole‟s submits that Traigle is still good law. It further

submits that none of the amendments made to Article 561 since that ruling nor the

1989 amendments to the Louisiana Code of Civil Procedure, which provided that

discovery was no longer to be filed in the record, altered the holding in Traigle.

Cole‟s also directs this court‟s attention to Tessier, 7 So.3d at 773, where in 2009,

2
See n.1, citing Edwards v. Giambrone, 353 So.2d 326 (La.App. 1 Cir. 1977), writ
denied, 354 So.2d 1375 (La.1978).
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the first circuit, citing Article 561 and Clark, remarked that while there were “no

filings of record between September 18, 2002, and June 12, 2007[,] . . . it is

undisputed that plaintiffs answered defendants‟ interrogatories on January 13, 2003,

which, although not on the record, constitutes an act of formal discovery and a

valid, recognized step in the prosecution of the case.”3

Because interrogatories and the answers thereto are specifically listed in

Article 1474(B), Cole‟s submits that answers to interrogatories, when properly

served on all parties, are a type of discovery materials referenced in Article

1474(C)(4) which “shall be considered a step in the prosecution or defense of an

action for the purposes of Article 561.” La.Code Civ.P. art. 1474(C)(4). Based on

the foregoing, Cole‟s submits that the trial court erred in dismissing its case

because JOB filed answers to interrogatories less than three years before it filed its

motion to dismiss.

JOB counters that responses to discovery are not formal discovery and thus

not a step in the prosecution or defense of a case. It further submits that Article

561 is self-executing and that abandonment occurs automatically upon the passing

of three years without a step being taken by either party.

In the instant matter, Cole‟s propounded interrogatories on JOB on

October 29, 2007. JOB voluntarily answered Cole‟s interrogatories and served

those answers on Cole‟s on July 28, 2009. Less than two years later, JOB moved

3
Compare La. Dep’t of Transp. and Dev. v. Oilfield Heavy Haulers, L.L.C., 10-1392
(La.App. 3 Cir. 4/6/11), 62 So.3d 308 (Saunders, J., dissenting), reversed, 11-912 (La. 12/6/11),
79 So.3d 978, where this court affirmed the trial court‟s dismissal of a suit as abandoned, holding
that neither discovery responses sent by the plaintiff to one defendant in a multi-party suit but not
served on all remaining defendants, nor a letter sent by one of the defendants to the plaintiff
requesting a Rule 10.1 discovery conference, were steps in the prosecution or defense of the
action sufficient to interrupt abandonment. In his dissent, Judge Saunders expressed his view
that “the discovery responses, alone, should warrant reversing the trial court” and that the
majority‟s failure to recognize as much went against the purpose of La.Code Civ.P. art. 561. The
supreme court granted writs and reversed, finding that “scheduling a Rule 10.1 conference
constitutes a step in the prosecution or defense of an action sufficient to interrupt abandonment.”
Because its holding was dispositive of the case, the supreme court pretermitted discussion of
DOTD‟s remaining arguments.
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to have Cole‟s suit dismissed as abandoned. After considering the relevant

jurisprudence and applying the plain meaning of La.Code Civ.P. arts. 561 and

1474 to the facts of this matter, we are convinced that when a defendant answers

the plaintiff‟s interrogatories and properly serves those answers on all parties to the

action, as was done by JOB in this case, those actions qualify as a step in the

defense of the case sufficient to prevent the action from being deemed abandoned.

Moreover, when a defendant voluntarily answers discovery propounded by a

plaintiff more than one and one-half years before, especially when it has not been

prompted to do so by a motion to compel discovery, that action is certainly not

consistent with treating the case as abandoned. Thus, although JOB is correct in its

assertion that La.Code Civ.P. art. 561 is self-operative upon the passage of three

years where no steps in the prosecution or defense of the action have been taken, in

this case no abandonment occurred due to its answering and serving of Cole‟s

interrogatories less than two years after the previous last step in the case.

Because JOB‟s answering of discovery was a step in the defense of the case

and served to waive its right to assert that Cole‟s case against it had been

abandoned, we conclude that the trial court erred in denying Cole‟s motion to set

aside the ex parte order of dismissal. Accordingly, the trial court‟s judgment will

be reversed. As a result, we pretermit discussion of Cole‟s second assignment of

error.

DECREE

For the foregoing reasons, the judgment of the trial court denying Cole‟s

motion to set aside order of dismissal is reversed and this matter is remanded to the

trial court for further proceedings. Costs of this appeal are assessed against J-O-B

Operating Company.

REVERSED AND REMANDED.
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