Abandonment Examined by Appellate Court in Construction Lawsuit

A Saint Martinville, Louisiana, construction company, Cole’s Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole’s had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole’s requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole’s had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole’s then attempted to get the motion set aside. The trial court denied this attempt, and Cole’s appealed the case to the appellate court to get it reviewed.

Cole’s claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court’s ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit’s record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

However, there are two exceptions to the above abandonment rule. One is when a plaintiff is unable to prosecute or take necessary action because of circumstances beyond his or her control. The other exception is if the defendant takes some sort of action that is inconsistent with the intent to abandon. If a defendant takes an action in a case that is contrary to asserting abandonment, he or she in effect waives the right to assert abandonment. Furthermore, deference is giving to the plaintiff and, when at all possible, a case should not be granted dismissal. This is because the plaintiff should be given his or her day in court in order to address any grievances.

Because this case involves a question of law, instead of fact, the appellate court gets to review the case de novo or as if the trial court has not already tried the case. However, the appellate court needs to read the law as stated and apply it as such; it cannot rewrite or reinterpret the law. So, in this instance, the appellate court had to decide whether or not the fact that the defendant answered the interrogatories within the past three years counts as a waiver of its claim of abandonment. This is a tricky question because when the defendant answers the interrogatories, that action does not get recorded on the official court record and it does not take place during a court proceeding. However, it is still part of the discovery process.

While Cole’s argues that answering the interrogatories is clearly an action that contradicts a claim for abandonment, JOB contends that it does not count as part of formal discovery. JOB answered the interrogatories voluntarily, though, without being compelled to do so. Because of this, the appellate court found that JOB’s actions were not consistent with treating the case as abandoned. Answering the plaintiff’s interrogatories and serving them on all relevant parties constitutes a step or sufficient action to keep the case from being classified as abandoned, according to the appellate court. Thus, the trial court’s judgment was reversed.

From this case, you can see how important it is to have someone who is adept at researching and interpreting the relevant law on your case.

If you are in need of legal aid, call Berniard Law Firm at (504) 521-6000 to talk to an attorney who will be more than happy to help you out.

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