Opinion
2012 CA 1999
06-07-2013
CLARENCE J. BURTON v. SALSBURY'S DODGE CITY, INC. AND XYZ INSURANCE COMPANY
Errol J. Ware New Orleans, Louisiana Counsel for Plaintiff-Appellant Clarence J. Burton William F. Bologna Dwight L. Acomb New Orleans, Louisiana Counsel for Defendant-Appellee Salsbury's Dodge City, Inc.
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C539197, SEC. 24, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE R. MICHAEL CALDWELL, JUDGE
Errol J. Ware
New Orleans, Louisiana
Counsel for Plaintiff-Appellant
Clarence J. Burton
William F. Bologna
Dwight L. Acomb
New Orleans, Louisiana
Counsel for Defendant-Appellee
Salsbury's Dodge City, Inc.
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED.
KUHN, J.
Plaintiff-appellant, Clarence J. Burton, appeals a judgment dismissing his case against defendant-appellee, Salsbury's Dodge City, Inc. (Salsbury's Dodge), for failure to take a step in its prosecution for a period in excess of three years. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Burton filed a petition for damages on December 27, 2005, averring that Salsbury's Dodge had sold him a 2005 Dodge truck, which included a warranty for defects and mechanical breakdown. According to the petition, because the truck had become disabled on August 12, 2005, Burton took it to the dealership for repairs and submitted a claim under the warranty. After keeping the vehicle for five days, Salsbury's Dodge advised Burton that the manufacturer refused to authorize the claim. After unsuccessful negotiations, Burton filed this lawsuit. Salsbury's Dodge obtained an extension of time to answer and, on February 9, 2006, filed an answer, which generally denied Burton's allegations, asserted affirmative defenses, and requested a jury trial.
Subsequent to Salsbury's Dodge's answer, the record contains a motion to substitute counsel filed on March 3, 2006, by Salsbury's Dodge; a motion to substitute counsel filed on June 5, 2007, by Burton; and, a request for written notice filed on December 12, 2008, by Burton. Nothing else was undertaken on the record until March 8, 2012, when Salsbury's Dodge filed an ex parte motion to dismiss Burton's case on the basis of abandonment which was accompanied by an affidavit of last case activity. On March 8, 2012, the trial court signed a judgment dismissing Burton's case.
Burton timely filed a rule to show cause, seeking a reversal of the judgment of dismissal and an alternative motion for new trial. The trial court denied relief, and this appeal by Burton followed.
DISCUSSION
La. C.C.P. art. 561 provides in relevant 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....
(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....
Article 561 imposes three requirements to avoid abandonment: (1) a party must take some "step" in the prosecution or defense 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. A "step" is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. Louisiana Dep't of Tramp, and Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, 981.
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. 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. Id.
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. 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. For the purpose of determining abandonment, the intent and substance of a party's actions matter far more than technical compliance. Id. at 982.
It is undisputed, and the record shows, that after December 12, 2008, Burton did nothing to prosecute his claims. Thus, when Salsbury's Dodge filed its ex parte motion on March 8, 2012, there were no steps of record in the prosecution of defense of this action and, therefore, the matter was abandoned.
Burton seeks to avoid dismissal by asserting that Salsbury's Dodge, by virtue of a letter sent to Burton's counsel before the lapse of the three-year time period set forth in Article 561, waived its right to seek abandonment. To his pleading that challenged the dismissal of his action for abandonment, Burton attached a letter, dated October 11, 2010, sent by counsel for Salsbury's Dodge to the attorney representing Burton on that date. The letter offered to conditionally settle the matter.
Because Salsbury's Dodge's conduct in this case is simply informal settlement negotiations, the waiver exception does not apply and the general rule requiring that a party's action be on the record applies. See Clark v. State Farm Mut Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785 So.2d 779, 791 n.18 (citing as examples of informal settlement negotiations to which the waiver exception does not apply Porter v. Progressive Specialty Ins. Co., 99-2542 (La. App. 1st Cir. 11/8/00), 771 So.2d 293; and Woodward v. Lumbermens Mutual Casualty Co., 2000-0399 (La. App. 1st Cir. 3/28/01), 808 So.2d 554); see also Louisiana Dep't of Transp. and Dev., 79 So.3d at 983.
Burton urges we broadly construe Louisiana Dep't of Transp. and Dev., 79 So.3d at 981-82, to conclude that all communications between the attorneys representing parties should be considered as acknowledgements demonstrating waivers by defendants so as to preclude the harsh effect of abandonment. But unlike the letter scheduling a Rule 10.1 conference, engaging in informal negotiations with a goal toward settlement is not a prerequisite to filing a motion to compel discovery or some other type of discovery motion, which are steps in the prosecution of the action. See Louisiana Dep't of Transp. and Dev., 79 So.3d at 983. Nor does Salsbury's Dodge's letter -- an offer to settle based on certain concessions on Burton's part -- evince an acknowledgement that applies when a defendant waives its right to assert abandonment by taking actions inconsistent with the intent to treat the case as abandoned. See Clark, 785 So.2d at 785-86. Thus, the informal settlement offer made by Salsbury's Dodge is not akin to an unconditional offer so as to warrant extrinsic evidence demonstrating a waiver. Id. at 790. Accordingly, the trial court correctly concluded Burton's action was abandoned.
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiff-appellant, Clarence J. Burton.
AFFIRMED.