Charles R. Talen, II v. Rhino Rhencovators, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-865

CHARLES R. TALEN, II

VERSUS

RHINO RHENCOVATORS, LLC, ET AL.

************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2014-101
HONORABLE DAVID RITCHIE, DISTRICT JUDGE

************
SHANNON J. GREMILLION
JUDGE
************

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

COOKS, Judge, dissents and assigns written reasons.

AFFIRMED.

Jeff E. Townsend, Jr.
512 Pujo Street
Lake Charles, LA 70601
(337) 436-0999
COUNSEL FOR PLAINTIFF/APPELLANT:
Charles R. Talen, Jr.

H. Alan McCall
Stephen D. Polito
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P.O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
Rhino Rhenovators, LLC

2

GREMILLION, Judge.

FACTS AND PROCEDURAL HISTORY

On January 6, 2014, Plaintiff, Charles R. Talen, II, filed a Petition for Damages

against Defendants, Rhino Rhenovators, LLC and Old Treme Builders, LLC. It was

alleged by Plaintiff that he incurred damages as a result of alleged defects in a house

built by Rhino and purchased from Old Treme.

On February 12, 2014, Defendants filed a Dilatory Exception of Prematurity and

a Peremptory Exception of No Cause of Action based on Plaintiff’s failure to comply

with the New Home Warranty Act. On May 7, 2014, before the hearing on the

exceptions, Plaintiff filed an amended petition and requested the Calcasieu Parish Clerk

of Court serve the petition on Defendants. On May 12, 2014, Plaintiff and Defendants

informed the trial court they had agreed to pass the hearing on the exceptions scheduled

for May 14, 2014. On that date, the parties had a physical inspection of the home

performed.

Service of the amended pleading was delayed because Mr. Talen failed to

advance court costs. Notice of the failure to pay the requisite court costs was sent to

Mr. Talen on four separate occasions. Eleven months later, on April 15, 2015, the

amended petition was served on Defendants.

Following the May 2014 inspection, Defendants assert, Mr. Talen took no further

steps in the litigation for three years. Defendants acknowledge that the parties engaged

in “[s]ome informal settlement negotiations” during the period in question, but no

additional pleadings were filed or formal discovery performed during this period.

Therefore, Defendants maintain, the action was abandoned as a matter of law on May

15, 2017.

On January 26, 2018, Rhino obtained an ex parte judgment granting its Motion

to Dismiss on Abandonment. On January 30, 2018, Mr. Talen attempted to set aside

the Court’s order, filing an “Opposition to the Motion to Dismiss or in the Alternative,

Motion for Rehearing.” On May 7, 2018, Mr. Talen filed a “Motion and Order to Fix

for Rehearing.” The trial court conducted a hearing on its judgment granting the Motion

to Dismiss on Abandonment on June 27, 2018. Evidence and arguments were presented

by the parties, and after taking the matter under advisement, the trial court denied Mr.

Talen’s Motion to Vacate Dismissal for Abandonment.

This appeal followed, and Mr. Talen asserts the following assignment of error:

The trial court erred in ruling that the filing of an Amended Petition by
Plaintiff on May 7, 2014, which contained a request for service and the
actual service on the attorney of record for Defendants of Citation and
Petition on April 15, 2015, was not a step in prosecution.

ANALYSIS

Louisiana Code of Civil Procedure Article 561 governs the abandonment of

actions, stating, in pertinent part:

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:

(a) Which has been opened;

(b) In which an administrator or executor has been appointed; or

(c) In which a testament has been probated.

....

(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.

....

2

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.

Article 561 imposes three requirements to avoid abandonment: (1) a party must

take some formal “step” in the prosecution 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; sufficient action by either plaintiff or defendant will be deemed a step.”

Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779,

784. “[A]bandonment 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.” Id. In Louisiana Department of Transportation & Development v. Oilfield

Heavy Haulers, L.L.C., 11-912, pp. 5-6 (La. 12/6/11), 79 So.3d 978, 981-82, the

supreme court discussed the purpose and history of abandonment, explaining:

The purpose of Article 561 is the prevention of protracted litigation
filed for purposes of harassment or without a serious intent to hasten the
claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532
(La.1983). Abandonment is not a punitive concept; rather, it balances two
competing policy considerations: (1) the desire to see every litigant have
his day in court and not to lose same by some technical carelessness or
unavoidable delay, and (2) the legislative purpose that suits, once filed,
should not indefinitely linger, preserving stale claims from the normal
extinguishing operation of prescription. Clark [v. State Farm Mut. Auto.
Ins. Co.], 00-3010, p. 10-11; 785 So.2d at 787.

Our jurisprudence has uniformly held Article 561 is to be liberally
construed in favor of maintaining a plaintiff’s suit. Id., p. 8; 785 So.2d at
785. Because dismissal is the harshest of remedies, any reasonable doubt
about abandonment should be resolved in favor of allowing the
prosecution of the claim and against dismissal for abandonment. Id., p.
10; 785 So.2d at 787. The intention of Article 561 is not to dismiss suits
as abandoned based on technicalities, but only those cases where plaintiff’s
inaction during the three-year period has “‘clearly demonstrated his
abandonment of the case.’” Id., p. 8-9; 785 So.2d at 785-86 (quoting
Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976), writ
denied, 341 So.2d 420 (La.1977)). For the purpose of determining
abandonment, “the intent and substance of a party’s actions matter far

3

more than technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06-0313,
p. 5 (La.App. 1 Cir. 2/14/07); 961 So.2d 1170, 1172-73.

On appeal, the trial court’s determination of whether a “step” in the prosecution

of an action has been taken is a finding of fact which is subject to the manifest error

standard of review. Lyons v. Dohman, 07-53 (La.App. 3 Cir. 5/30/07), 958 So.2d 771.

However, whether that “step” precludes abandonment is a question of law, which the

appellate court reviews by determining whether the trial court’s decision is correct. Id.

Defendants argued, and the trial court agreed, that the payment of costs to affect

service (which all sides agree occurred) was insufficient to constitute a step in the

prosecution of Mr. Talen’s case. Defendants cite King v. American Motorists Insurance

Company, 295 So.2d 26, 28 (La.App. 4 Cir.1974), for the proposition that “it is not the

issuance of the citation by the clerk nor the service of it by the sheriff that is controlling

here.” Defendants argue that a formal request for service by Mr. Talen would control.

Defendants maintain that because there was not a re-request for service of process

formally entered into the record, it does not constitute a step in the prosecution of

plaintiff’s case, even if Defendants were, in fact, served during the three-year

abandonment period. We agree.

We also note that a June 2, 2015 letter was sent by Mr. Talen’s counsel to counsel

for Defendants in which Mr. Talen explained to Defendants that the Amended Petition

was not served immediately due to an “error.” Defendants note that the letter did not

specifically request a “status conference” with the court, but instead requested that

Defendants “file your responsive pleadings and would further suggest that we request

a status conference with the Judge’s office in order to set a schedule and tentative trial

date.” Further, Defendants also note in brief that “[s]ome informal settlement

negotiations took place” between the respective counsels during the alleged three-year

abandonment period.

4

The problem is that these “steps,” with the exception of the copy of the citation

of service of process made on each defendant on April 15, 2015, are not formally in the

record. We find the following reasoning from Oilfield Heavy Haulers, L.L.C., 79 So.3d

at 985-86 (emphasis added), supports our conclusion that abandonment is appropriate

in the present case:

Thus, the formal action requirement was designed to protect defendants,
as “allowing informal, ex parte actions to serve as a step in the prosecution
‘might interrupt prescription against abandonment without the opposing
parties formally learning of them for months or years, to their possible
prejudice.’” Id. (quoting DeClouet [v. Kansas City Southern Ry. Co., 176
So.2d 471, 476 (La.App. 3 Cir.1965).]

....

We conclude the purpose underlying the formal action requirement would
not be served in the present case, as all defendants were aware of the letter,
and thus, there is no issue of notice.

....

Similarly, today, we hold the broad language in Melancon [v. Continental
Casualty Co., 307 So.2d 308 (La.1975)], requiring “any action taken by a
party that is alleged to be a step in the prosecution or defense of the suit
must appear in the court record” is mistaken to the extent it precludes
actions made by defendants and known to all parties from constituting a
step in the prosecution or defense of an action sufficient to interrupt
abandonment. This approach comports with the policy considerations
behind the formal action requirement as stated in Melancon; at the time an
action is dismissed due to abandonment, the status of the litigation must
be known with certainty. Melancon, 307 So.2d at 312. Where the action
is taken by a defendant and there is no issue of notice by any of the parties,
there can be no uncertainty.

This holding is also in keeping with our longstanding jurisprudence
requiring a liberal construction of Article 561. “[A]bandonment is not
meant to dismiss actions on mere technicalities, but to dismiss actions
which in fact clearly have been abandoned.” Clark, 00-3010, p. 9; 785
So.2d at 786; Hargis v. Jefferson Parish, 00-0072 (La.3/17/00); 755
So.2d 891 (per curiam) (reversing a finding of abandonment based on a
letter to the clerk of court requesting service on defendants, which was not
filed in the record).

5

Mere payment of court costs has consistently been held to not constitute a step in

the prosecution of a matter. See D&S Builders, Inc. v. Mickey Constr. Co., Inc., 524

So.2d 245 (La.App. 5 Cir. 1988); Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir.

9/17/04), 897 So.2d 19, writ denied, 04-2524 (La. 12/17/04), 888 So.2d 870. To hold

otherwise would allow a litigant to trickle court costs payments every three years and

delay the resolution of a case indefinitely.

We are aware of our fourth circuit colleagues’ recent decision in Rixner v.

Planned Parenthood Gulf Coast, Inc., 18-897 (La.App. 4 Cir. 4/24/19), 270 So.3d 733.

In Rixner, the plaintiff was pursuing a medical malpractice action arising from the

placement of an intrauterine device that allegedly caused her injury. Her petition was

only served on the corporate defendant and not on the individual defendants. When the

corporate defendant opened a new office, plaintiff mailed a letter to the clerk of court

formally requesting service on the individual defendants at the new address. The

Orleans Parish Sheriff was unable to effect service at that location. Less than three

years from the date of this request for service, the corporate defendant filed a motion to

have the matter declared abandoned, which the trial court granted. On appeal, the fourth

circuit held that the request for service constituted a step in the prosecution of the case.

We distinguish Rixner from the present matter on its facts. In that matter, the

record contained the request for service. In the present matter, there is no record of Mr.

Talen’s payment of costs or request for service.

Our law has long held that settlement negotiations, letters reflecting settlement

negotiations, and the like do not constitute steps in the prosecution of a claim. Hercules

Offshore, Inc. v. Lafayette Par. Sch. Bd., Sales & Use Tax Dep’t, 14-701 (La.App. 3

Cir. 2/11/15), 157 So. 3d 1177. Settlement negotiations do not prevent moving a case

to judgment. Id. Neither would the June 2, 2015 letter from Mr. Talen’s counsel to

Defendants’ counsel.

6

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. Costs

of this appeal are taxed to Plaintiff, Charles R. Talen, II.

AFFIRMED.

7

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-865

CHARLES R. TALEN, II

VERSUS

RHINO RHENCOVATORS, LLC, ET AL.

COOKS, J., dissents.

I respectfully dissent from the majority opinion affirming the trial court’s

denial of Mr. Talen’s Motion to Vacate Dismissal for Abandonment.

The law in Louisiana is clear that “abandonment is not meant to dismiss

actions on mere technicalities, but to dismiss actions which in fact have clearly been

abandoned.” Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6 (La. 5/15/01),

785 So.2d 779, 786. Thus, courts are required to liberally construe La.Code Civ.P.

art. 561 in favor of maintaining a plaintiff’s action. Id. In Louisiana Department of

Transportation & Development v. Oilfield Heavy Haulers, L.L.C., 11-912, pp. 5-6

(La.12/6/11), 79 So.3d 978, 981-82, in discussing the purpose and history of

abandonment, the Louisiana Supreme Court explained:

The intention of Article 561 is not to dismiss suits as abandoned based
on technicalities, but only those cases where plaintiff’s inaction during
the three-year period has “’clearly demonstrated his abandonment of
the case.’” Id., p. 8-9; 785 So.2d at 785-86 (quoting Kanuk v.
Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976), writ denied, 341
So.2d 420 (La.1977)). For the purpose of determining abandonment,
“the intent and substance of a party’s actions matter far more than
technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06-0313, p. 5
(La.App. 1 Cir. 2/14/07); 961 So.2d 1170, 1172-73.

The majority concludes because there was not a re-request for service of

process formally entered into the record, the actual service on defendants did not

constitute a step in the prosecution of plaintiff’s case, even if defendants were, in

fact, served during the three-year abandonment period. I disagree and find such a

1

conclusion would defeat the intent and purpose of the law pertaining to the

abandonment of actions.

As the jurisprudence has consistently maintained, the purpose of Article 561

is the prevention of protracted litigation filed for purposes of harassment or without

a serious intent to hasten the claim to judgment. Chevron Oil Co. v. Traigle, 436

So.2d 530, 532 (La.1983). I find the record does not establish the litigation was filed

for harassment purposes or that there was no intent on Plaintiff’s part to pursue the

claim to judgment.

During the three-year abandonment period at issue here, Plaintiff paid the

requisite fees necessary for suit to be served on both defendants. The record

contains a copy of the citation of service of process made on each defendant on April

15, 2015. Clearly this should have alerted Defendants that Plaintiff was pursuing

his claim. I also note, a June 2, 2015 letter was sent by Plaintiff to counsel for

Defendants in which Plaintiff explained to Defendants the Amended Petition was

not served immediately due to an “error” and also opined that the parties set a “status

conference with the court.” Defendants noted the letter did not specifically request

a “status conference” with the court, but instead requested that Defendants “file your

responsive pleadings and would further suggest that we request a status conference

with the Judge’s office in order to set a schedule and tentative trial date.” Although

that letter was not sent to the trial court, in my view it indicates to counsel for

Defendants the Plaintiff’s clear intent to continue the pursuit of his claim. Further,

Defendants also note in brief that “[s]ome informal settlement negotiations took

place” between the respective counsels during the alleged three-year abandonment

period.

Although these “steps,” with the exception of the copy of the citation of

service of process made on each defendant on April 15, 2015, were not formally in

the record, I find the following reasoning from Oilfield Heavy Haulers, 79 So.3d at

2

985-86, supports the conclusion that abandonment is not appropriate in the present

case:

Thus, the formal action requirement was designed to protect
defendants, as “allowing informal, ex parte actions to serve as a step in
the prosecution ‘might interrupt prescription against abandonment
without the opposing parties formally learning of them for months or
years, to their possible prejudice.’” Id. (quoting DeClouet [v. Kansas
City Southern Ry. Co., 176 So.2d 471, 476 (La.App. 3 Cir.1965).]

....

We conclude the purpose underlying the formal action requirement
would not be served in the present case, as all defendants were aware
of the letter, and thus, there is no issue of notice.

....

Similarly, today, we hold the broad language in Melancon [v.
Continental Casualty Co., 307 So.2d 308 (La.1975)], requiring “any
action taken by a party that is alleged to be a step in the prosecution or
defense of the suit must appear in the court record” is mistaken to the
extent it precludes actions made by defendants and known to all parties
from constituting a step in the prosecution or defense of an action
sufficient to interrupt abandonment. This approach comports with the
policy considerations behind the formal action requirement as stated in
Melancon; at the time an action is dismissed due to abandonment, the
status of the litigation must be known with certainty. Melancon, 307
So.2d at 312. Where the action is taken by a defendant and there is no
issue of notice by any of the parties, there can be no uncertainty.

This holding is also in keeping with our longstanding
jurisprudence requiring a liberal construction of Article 561.
“[A]bandonment is not meant to dismiss actions on mere technicalities,
but to dismiss actions which in fact clearly have been abandoned.”
Clark, 00-3010, p. 9; 785 So.2d at 786; Hargis v. Jefferson Parish, 00-
0072 (La.3/17/00); 755 So.2d 891 (per curiam) (reversing a finding of
abandonment based on a letter to the clerk of court requesting service
on defendants, which was not filed in the record). . . This is not a case
where plaintiff’s inaction evidences an intent to abandon the suit.

In this case, the service of the amended petition on Defendants on April 15,

2015, the letter sent to Defendants on June 2, 2015 and the settlement negotiations

between the respective counsels, were not informal, ex parte actions of which

Defendants were not aware. Thus, as discussed in Oilfield Heavy Haulers, it was

not an instance where these events served to “interrupt prescription against

3

abandonment without the opposing parties formally learning of them for months or

years, to their possible prejudice.” Id. at 985. These three events clearly evidenced

an intent by Plaintiff to pursue his claim, of which Defendants were fully aware.

Just as the supreme court noted in Oilfield Heavy Haulers, a reversal of the

trial court’s granting of abandonment in this case is “in keeping with our

longstanding jurisprudence requiring a liberal construction of Article 561.

‘[A]bandonment is not meant to dismiss actions on mere technicalities, but to

dismiss actions which in fact clearly have been abandoned.’ Clark, 00-3010, p. 9;

785 So.2d at 786.” Id. at 986. Therefore, I would reverse the judgment of the district

court denying the Motion to Vacate Dismissal for Abandonment and remand the

matter for further proceedings.

4