A & B Bolt & Supply, Inc. v. Whitco Supply, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-994

A & B BOLT & SUPPLY, INC.

VERSUS

WHITCO SUPPLY, L.L.C., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20033999
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

REVERSED.

Timothy W. Basden
Alan K. Breaud
Breaud & Meyers
600 Jefferson Street, Suite 1101
Lafayette, LA 70502
(337) 266-2200
COUNSEL FOR PLAINTIFF/APPELLANT:
A & B Bolt & Supply, Inc.

Gerald C. deLaunay
Perrin, Landry, deLauney, Dartez & Ouellet
Post Office Box 53597
Lafayette, LA 70505
(337) 237-8500
COUNSEL FOR DEFENDANT/APPELLEE:
David S. Dawes

GREMILLION, Judge.

The plaintiff, A & B Bolt & Supply, Inc., appeals the trial court’s judgment

dismissing its lawsuit as abandoned. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit involves the enforcement of a non-compete agreement entered

into in 2001 by David S. Dawes, a former employee of A & B Bolt, who left and

created a competitive company, Whitco. A & B Bolt filed a petition for temporary

restraining order, preliminary and permanent injunctions, and damages against

Dawes and Whitco. Extensive litigation occurred over the next ten years, with four

appeals to this court and the same number of writs filed with the supreme court,

with the most recent writ denial by the supreme court occurring on January 7,

2011. See A & B Bolt & Supply, Inc. v. Dawes, 10-492 (La.App. 3 Cir. 10/13/10),

49 So.3d 964, writ denied, 10-2563 (La. 1/7/11), 52 So.3d 588. The substance of

that appeal was the affirmation of the trial court’s December 14, 2009 judgment in

favor of Whitco dismissing it from the suit. The motion for summary judgment in

favor of Dawes was denied.

On July 27, 2012, Whitco filed a motion to fix and tax costs.1 On September

18, 2012, A & B Bolt filed a memorandum in opposition. On that same day,

Whitco filed a reply memorandum into the record. Following a September 24,

2012 hearing, the trial court denied the motion, ordering that the determination of

court costs would be handled at the conclusion of the case between A & B Bolt and

Dawes.

On February 6, 2014, Dawes filed an ex parte motion to dismiss for

abandonment. The trial court signed the order ex parte on February 10, 2014, and

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Whitco and Dawes are represented by the same counsel.

dismissed the case against Dawes as abandoned. A & B Bolt was served with the

order dismissing the case on March 31, 2014. That same day, A & B Bolt filed a

motion to set aside ex parte order of abandonment. Following a hearing on the

motion on May 19, 2014, the trial court denied the motion. Appellant timely

appealed and now argues that the trial court erred in dismissing its case as

abandoned, as numerous actions constituted “steps” sufficient to interrupt

abandonment under La.Code Civ.P. art. 561.

DISCUSSION

Louisiana Code of Civil Procedure Article 561(A)(1) states in part:

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[.]

A plaintiff must meet three requirements in order to avoid abandonment of

its claim:

First, plaintiffs must take some “step” towards prosecution of
their lawsuit. In this context, a “step” is defined as 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 proceedings 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.

Clark v. State Farm Mutual Automobile Ins. Co., 00-310 (La. 5/15/01), 785 So.2d

779, 784 (footnotes omitted). Louisiana Code of Civil Procedure Article 561 is to

be “liberally construed in favor of maintaining a plaintiff’s suit.” Id. at 785. Nor

should suits be dismissed on technicalities; form should not be allowed to prevail

over substance. Id. “The article was not intended, however, to dismiss those

cases in which a plaintiff has clearly demonstrated before the court during the

prescribed period that he does not intend to abandon the action.” Id. at 785-786

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(quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir. 1976), writ

denied, 341 So.2d 420 (La. 1977) (footnote omitted).

Appellant argues that the followings actions were steps in the case sufficient

to interrupt abandonment:

The filing into the court record and service of a contested
Motion to Fix and Tax Costs by a Defendant; the filing into the court
record and service of a Memorandum in Support of the Motion to Fix
and Tax Costs; the filing into the record and service by the Plaintiff of
a Memorandum in Opposition to the Motion; the execution, filing and
service of an Order by the Court setting a hearing; the convening of a
Hearing in open court; the appearance of counsel for Plaintiff and all
Defendants at the hearing; the introduction of evidence into the court
record at the hearing; and a ruling of the court in favor of the Plaintiff,
A & B Bolt.

Appellant argues that any step in the prosecution or defense of the case by

any party interrupts abandonment as to all parties. At the hearing, Dawes argued

that a motion to fix and tax costs cannot be considered a step because it was filed

by Whitco, who was dismissed from this litigation in October 2010. A & B Bolt &

Supply, Inc. v. Dawes, 49 So.3d 964. Dawes further argued that a non-party’s

seeking of costs does not constitute a step sufficient to interrupt abandonment. A

& B Bolt argues that Whitco’s motion was substantive and constituted a step. In

this instance, we agree.

A & B Bolt argues that Clark stands for the proposition that “if any step is

taken by any party in connection with any claim within the overall action,

abandonment is interrupted as to all claims and all parties.” We agree. In Gravlee

v. Gravlee, 11-509, pp.4-5 (La.App. 3 Cir. 12/7/11), 79 So.3d 1169, 1173, we

stated:

Usually, a “step” toward prosecution means taking a formal
action before the court or taking of a deposition, and this step must
appear in the record. Id. Nevertheless, because the requirements of
formality and appearance on the record are intended to ensure notice

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to the defendant, when it is the defendant who is taking the action, the
purpose of these requirements is not present, and the evidence outside
the record can be considered. Id. Furthermore, “[a]ny formal step
taken by any person capable of so doing, would be sufficient to negate
the inference than an action has been abandoned, and hence, to
preclude dismissal. . . .” Kambur v. Kambur, 583 So.2d 1213, 1214
(La.App. 4 Cir. 1991) (citing Am. Eagle, Inc. v. Employers’ Liab.
Assurance Corp., Ltd., 389 So.2d 1339 (LaApp. 1 Cir. 1980), writs
denied, 396 So.2d 885, 886 (La.1981)).

The step in the prosecution does not have to be made in the
same action. Id. For example, a step in a partition of community
property action, an “action separate and distinct from any
separation/divorce action” was held to be a step in the prosecution of
the divorce action because it was “inextricably bound up by law with
the underlying separation/divorce actions.” Id. at 1214 (emphasis
omitted).

Neither [must] the step in the prosecution [] be made by a party
in the lawsuit. See Am. Eagle, Inc., 389 So.2d 1339. For example, a
post-trial conference called by the judge was sufficient to interrupt the
accrual of abandonment. Id. This was because the advantage of this
step “inured to the benefit of all the parties.” Id. at 1342.

A & B Bolt was well aware of the lengthy litigation in this case. A & B Bolt

took significant actions in the trial court, on the record, leaving no doubts that the

matter was indeed ongoing and had not been abandoned. A formal hearing was

held in September 2012. Moreover, the resolution of the costs to be assessed

between the parties is so “inextricably bound” with the other issues ongoing among

the litigants that the trial court delayed it until the conclusion of the litigation

between the remaining parties. Allowing the dismissal of Dawes from the lawsuit

for abandonment is indeed prohibited as a mere formality or technicality.

Accordingly, we find the trial court improperly granted Dawes’ ex parte motion to

dismiss for abandonment.

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CONCLUSION

The judgment of the trial court finding that appellants claim against David S.

Dawes was abandoned is reversed. All costs of this appeal are assessed against the

plaintiff-appellee, David S. Dawes.

REVERSED.

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