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P&J CONTRACTING OF LOUISIANA, L.L.C. v. State of Louisiana, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT, and Chenevert Architects, LLC
Plaintiff appeals a judgment of the trial court granting defendants' motion to dismiss suit on grounds of abandonment. We reverse the judgment of the trial court and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
The facts in this matter are undisputed. On February 22, 2011, P&J Contracting of Louisiana, L.L.C. (P&J) filed suit against the State of Louisiana, Department of Education, Recovery School District (RSD) and Chenevert Architects, L.L.C. (Chenevert). RSD and Chenevert timely answered, and Chenevert filed a third-party demand against Professional Service Industries, Inc. (PSI). On March 22, 2016, PSI responded to discovery propounded by P&J. On April 4, 2016, PSI provided courtesy copies of the discovery responses to RSD and Chenevert.
No further activity took place in the case until February 22, 2019, when P&J transmitted a motion to set scheduling conference (P&J motion) to the Clerk of Court for the 19th Judicial District Court (clerk of court) by facsimile (February 22, 2019 fax transmission). P&J forwarded a copy of the P&J motion to all parties by email on the same day. The clerk of court received the February 22, 2019 fax transmission, but failed to provide P&J with confirmation of receipt and a statement of fees owed for the fax filing and filing of the original document as required by LSA-R.S. 13:850.1 R.UItimately, the original P&J motion and associated filing fees were not delivered to the Clerk of Court and filed into the suit record until July 31, 2019.
On August 23, 2019, RSD, Chenevert, and PSI (defendants) filed a joint ex parte motion to dismiss suit on grounds of abandonment (motion to dismiss). Defendants argued that review of discovery, pleadings, and documents filed into the record and served upon all parties reflected that there was no step in the prosecution or defense of the matter “of the nature to overcome abandonment” for a period of more than three years after PSI circulated discovery responses on April 4, 2016. Defendants concluded that the matter was abandoned by operation of law on April 4, 2019, and sought a formal judgment of dismissal of the suit in its entirety, including P&J's claims against defendants, and any and all incidental and/or third party demands, as of that date.
In a memorandum in support of the motion to dismiss, defendants repeatedly acknowledged that the public online docket activity records maintained by the trial court included the February 22, 2019 fax transmission. However, defendants contended that the February 22, 2019 fax transmission had no force and effect pursuant to LSA-R.S. 13:850, because P&J failed to deliver the original P&J motion and filing fees within seven days of the clerk of court's receipt of the fax as required by the same statute. Defendants claimed that because the February 22, 2019 fax transmission had no force or effect pursuant to LSA-R.S. 13:850, the suit was abandoned by operation of law prior to the filing of the original P&J motion on July 31, 2019, and could not be revived by the July 31, 2019 filing. Defendants further asserted that the February 22, 2019 fax transmission and the P&J motion filed on July 31, 2019 had different signatures, and that P&J did not serve defendants with the P&J motion when it was filed on July 31, 2019.
P&J opposed the motion to dismiss. P&J primarily maintained that the February 22, 2019 fax filing interrupted abandonment as a matter of law under this Court's ruling in Thibaut Oil Co., Inc. v. Holly, 2006-0313 (La.App. 1 Cir. 2/14/07), 961 So.2d 1170.
The trial court heard arguments on the motion to dismiss on January 27, 2020. The trial court issued oral reasons for judgment, stating in full:2
The motion to dismiss suit on grounds of abandonment, the court finds that the fax filing that did not follow up with the original was not a step towards prosecution. The court is going to grant the motion based on abandonment.
Thereafter, the trial court executed a written judgment dated February 17, 2020, which dismissed plaintiff's suit in its entirety as of April 4, 2019, along with and any and all incidental or third-party demands. P&J has appealed.
STANDARD OF REVIEW
Under LSA-C.C.P. art. 561, 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. Whether a step in the prosecution or defense of a case has been taken in the trial court within a period of three years is a question of fact subject to a manifest error analysis on appeal. On the other hand, whether a particular act, if proven, qualifies as a step in furtherance of the action and thereby precludes abandonment is a question of law. Bell v. Louisiana State Police, 2013-0863 (La.App. 1 Cir. 12/23/14), 168 So.3d 518, 524, writ denied, 2015-0160 (La. 4/10/15), 163 So.3d 815. An erroneous application of law is not entitled to deference by the reviewing court and, instead, is subject to a de novo review. Tessier v. Pratt, 2008-1268 (La.App. 1 Cir. 2/13/09), 7 So.3d 768, 773. As the facts are undisputed in this matter, the trial court's decision is a question of law subject to our de novo review.
LAW AND ANALYSIS
As stated above, LSA-C.C.P. art 561 provides that 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. 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. Quality Environmental Processes, Inc. v. Energy Development Corporation, 2016-0171 (La.App. 1 Cir. 4/12/17), 218 So.3d 1045, 1056. A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. Bell, 168 So.3d at 525. Pursuant to LSA-C.C.P. art. 561(B), any formal discovery that is served on all parties, whether or not filed of record, and 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.
Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Brown v. Kidney and Hypertension Assocs., L.L.P., 2008-0919 (La.App. 1 Cir. 1/12/09), 5 So.3d 258, 264. 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. Louisiana Dept. of Transp. & Development v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, 981.
Our jurisprudence has uniformly held that LSA-C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785 So.2d 779, 785. Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned. Id. at 786. For the purpose of determining abandonment, the intent and substance of a party's actions matter far more than technical compliance. Louisiana Dept. of Transp. & Development, 79 So.3d at 982.
Because dismissal is the harshest of remedies, the law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court. Thus, any action or step taken to move the case toward judgment should be considered. Burgess, Inc. v. Parish of St. Tammany, 2017-0153 (La.App. 1 Cir. 10/25/17), 233 So.3d 58, 62, writ denied. 2017-2179 (La. 2/23/18), 237 So.3d 515. If the plaintiff has clearly demonstrated before the court during the prescribed period that it does not intend to abandon its lawsuit, dismissal is not warranted. State ex rel. Div. of Admin., Office of Community Development v. Tujague, 2015-1457 (La.App. 1 Cir. 4/15/16), 193 So.3d 223, 226.
Transmission of court filings by facsimile in civil actions, commonly referred to as “fax filing,” is governed by LSA-R.S. 13:850. Under this statute, a party may file a pleading, with the same force and effect as a pleading physically filed at the courthouse or via mail, if each requirement of Subsection (B) is met. Smith v. St. Charles Parish Public Schools, 2017-0475 (La.App. 5 Cir. 5/1/18), 246 So.3d 821, 824. writ denied, 2018-1001 (La. 10/8/18), 253 So.3d 802. If a party does not deliver to the clerk of court an original document identical to the pleading filed by facsimile within seven days, only the purported original pleading delivered in person or by mail to the Clerk's office will have full legal force and effect. Id. at 825.
On appeal, P&J's first assignment of error is that the trial court's judgment granting the motion to dismiss on grounds of abandonment is incorrect in light of this Court's ruling in Thibaut, supra. In Thibaut, the plaintiff-in-reconvention, Holly, fax filed a motion to set for trial, and provided Thibaut's counsel with a copy of the motion to set for trial. The clerk of court's response to Holly provided notice that the original motion to set for trial was required to be filed within five days. Holly never filed an original, and the motion to set for trial was never processed. Id. at 1171.
Holly later moved for a status conference. Thibaut participated in the conference, but shortly thereafter filed a motion to dismiss on grounds of abandonment, arguing that Holly's failure to file the original motion to set for trial rendered the fax filing without effect, and the three-year period for abandonment had lapsed. Id. at 1171. In opposition, Holly argued that a letter from Thibaut's counsel regarding the motion to set for trial amounted to a step by Thibaut sufficient to waive Thibaut's right to claim abandonment by Holly. Id. at 1172. The trial court granted Thibaut's motion to dismiss.
On appeal, the Thibaut Court considered the Louisiana Supreme Court's decision in Clark, supra, focusing particularly on the following language from Clark:
[T]he appellate courts have declined to allow form to prevail over substance in determining whether an action has been abandoned. This court has likewise declined to allow suits to be dismissed as abandoned based on technical formalities.
In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.
Clark, 785 So.2d at 786 (quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir. 1976) (footnotes omitted).
The Thibaut Court concluded:
Our review indicates not only that Mr. Holly's fax filing was received by both the clerk's office and opposing counsel, but that both the clerk and opposing counsel responded in writing to the fax. Thus, there is no doubt that both the court and Thibaut received sufficient notice that Mr. Holly clearly intended to move his case along and took action to do so. While it is uncontested that Mr. Holly's faxed motion failed to comply with the requirements of La. R.S. 13:850 and thus could not have been effective as a motion to set, the standards of Article 561 are more liberal and less formulaic. We therefore find that Mr. Holly's faxed motion to set of September 2003 can be considered a step in prosecution of his action pursuant to Article 561.
Thibaut, 961 So.2d at 1173.
It is uncontested that P&J, like Holly in Thibaut, failed to comply with the statutory requirements of LSA-R.S. 13:850. As a result, the February 22, 2019 fax transmission is plainly without effect as a motion to set scheduling conference. However, it is also clear that P&J successfully provided notice of the February 22, 2019 fax transmission to the defendants and the clerk of court, and thereby provided notice of P&J's intent to move the case along and the action taken to do so. Having thoroughly considered our prior holding in Thibaut, we find that the critical determinative facts in that case, specifically the notice provided to the defendants and the clerk, are also present in the matter before us. We are therefore bound to apply the reasoning and holding in Thibaut in this decision.3 Accordingly, we hold that the trial court erred in granting defendants' motion to dismiss.
We note defendants' arguments that Thibaut is not controlling in this case because LSA-R.S. 13:850 has been amended since that decision. However, having carefully examined the amendments when considering this matter, we find that the relevant amendments have not resulted in any substantive change that could be construed to overrule the analysis or holding of Thibaut. At the time Thibaut was decided and at present, LSA-R.S. 13:850 has contained a plain mandate that in the event the requirements of the statute are not met, the fax filing “shall have no force or effect.” Because this statutory language is the same as that considered by the Thibaut Court, we cannot interpret or apply it differently.4
The February 17, 2020 judgment of the trial court granting the motion to dismiss is reversed, and this matter is remanded to the trial court for further proceedings. The State of Louisiana, Department of Education, Recovery School District; Chenevert Architects, LLC; and Professional Service Industries, Inc., are each to bear one-third of the costs of appeal.
REVERSED AND REMANDED.
1. Louisiana Revised Statute 13:850(A) mandates that the clerk of court “shall transmit to the filing party via facsimile a confirmation of receipt and include a statement of the fees for the facsimile filing and filing of the original document” no later than the first business day after receiving a facsimile filing.
2. The transcript of the January 27, 2020 hearing contained in the record before this Court on appeal is comprised solely of these oral reasons for judgment. It is unclear whether the trial court heard arguments at the hearing.
3. Further, to the extent that defendants rely on this Court's decision in Parson v. Daigle, 96-2569 (La.App. 1 Cir. 12/29/97), 708 So.2d 746, we note that Parson was decided prior to the Louisiana Supreme Court's decision in Clark and this Court's decision in Thibaut.
4. Defendants also argue that Thibaut is distinguishable. Specifically, defendants maintain that the party claiming abandonment in Thibaut had taken a step in the defense of the matter sufficient to interrupt abandonment, and therefore waived the right to assert abandonment. However, the Thibaut court reached its conclusion that the suit therein had not been abandoned on the basis of the non-compliant fax filing prior to the discussion of the other party's action. Further, after the waiver discussion, the Thibaut court specifically stated that the two events, “considered either separately or together, show no intention on the part of either party to consider this matter abandoned.” Thibaut, 961 So.2d at 1174. Thus, defendants' argument does not accurately reflect the holding in Thibaut.
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Docket No: 2020 CA 0674
Decided: December 30, 2020
Court: Court of Appeal of Louisiana, First Circuit.
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