ROBIN CLEVELAND v. OUR LADY OF THE LAKE HOSPITAL AND XYZ CORPORATION (2026)

Appellant, Robin Cleveland, seeks review of a judgment denying her motion to set aside dismissal of her underlying medical malpractice suit due to abandonment. For the following reasons, we amend the judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On June 21, 2017, Robin Cleveland filed a request for a medical review panel and a petition for damages against Our Lady of the Lake Hospital (“OLOL”), alleging medical malpractice, The petition was assigned docket number 659,099. On September 18, 2017, Ms. Cleveland filed an amended petition for damages, naming additional defendants, Robert W. Easton, M.D. and Baton Rouge Orthopaedic Clinic, L.L.C. (“BROC”). In a certified letter dated July 6, 2017, Ms. Cleveland was advised by the Patient's Compensation Fund (“PCF”) that OLOL was a qualified healthcare provider but Dr. Easton and BROC were not. Accordingly, the PCF advised Ms. Cleveland that a filing fee of $100 was owed and must be received by the PCF within 45 days of receipt of the letter or her request for a medical review panel would be without effect.

On September 1, 2017, the PCF sent a follow up letter to Ms. Cleveland, which provided, in pertinent part:

On July 6, 2017, we advised you that under La. R.S. 40:1231.8(1)(c) and (d), you had forty-five (45) days to remit a filing fee of $100.00, a physician's affidavit, or an in forma pauperis ruling and that the failure to comply with these provisions would render your request for review invalid and without effect.

We did not receive the filing fees due, thus you have failed to comply within the time allowed. Therefore, the above cited case is considered invalid and without effect.

Ms. Cleveland filed a second request for medical review panel with the PCF on October 11, 2017, once again naming OLOL, Dr. Easton, and BROC. Subsequently, a consent judgment dated January 9, 2018 was executed dismissing OLOL from this litigation (docket number 659,099) without prejudice, based on OLOL's exception of prematurity wherein it argued that Ms. Cleveland's claim was governed by the Medical Malpractice Act and had to be presented to a medical review panel before it could be heard in district court.

On April 5, 2018, Dr. Easton and BROC filed a motion to compel, contending that discovery requests were propounded onto Ms. Cleveland and she had not responded to the requests. Meanwhile, OLOL filed a peremptory exception raising the objection of prescription on January 2, 2019, contending that a valid PCF claim was not timely filed, therefore, Ms. Cleveland's claims were prescribed. The caption was the same as Ms. Cleveland's original suit, but the exception was filed under a new docket number: 677,879, On September 3, 2020, Dr. Easton and BROC filed a motion for summary judgment in docket number 659,099. Ms. Cleveland filed an opposition to that motion for summary judgment on November 25, 2020. A hearing on the motion was set for December 14, 2020, but was later continued without date at Dr. Easton and BROC's request. On November 27, 2023, Ms. Cleveland filed a motion for status conference bearing docket number 677,879.

On January 30, 2024, Dr. Easton and BROC filed a motion to dismiss Ms. Cleveland's action in docket number 659,099 as abandoned pursuant to La. Code Civ. P. art. 561.¹ In support of their motion, Dr. Easton and BROC asserted that no steps had been taken in the prosecution or defense of the instant matter for a period of three years, or since the filing of Ms. Cleveland's opposition to Dr. Easton and BROC's motion for summary judgment on November 25, 2020. Therefore, they argued that the suit had been abandoned.

On February 29, 2024, the trial court signed an order declaring the matter abandoned and dismissed the matter with prejudice. Ms. Cleveland was served with notice of the judgment of dismissal on March 8, 2024.

On April 2, 2024, Ms. Cleveland filed a motion to set aside the February 29, 2024 order of dismissal, asserting that the matter had not been abandoned. Ms. Cleveland argued that the Louisiana Supreme Court suspended abandonment for a period of 30 days following Hurricane Ida, so her period of abandonment was extended from November 25, 2023 to December 25, 2023. Thus, she contended that her motion for status conference filed on November 27, 2023, although filed inadvertently under docket number 677,879, was a step in the prosecution of the matter that interrupted abandonment prior to its accrual. In support of her motion, Ms. Cleveland attached a copy of the August 31, 2021 Louisiana Supreme Court Order suspending prescription and abandonment, as well as her motion for status conference filed in docket number 677,879.

The defendants filed an opposition to Ms. Cleveland's motion to set aside dismissal asserting that the period of abandonment was not extended by 30 days pursuant to the August 31, 2021 Louisiana Supreme Court Order following Hurricane Ida because Ms. Cleveland's abandonment did not accrue during the time of the order. Alternatively, the defendants argued that Ms. Cleveland's motion for status conference filed in another action was not a “step” towards the prosecution of this action that would interrupt the accrual of abandonment.

After an August 19, 2024 contradictory hearing, the trial court signed a judgment on September 19, 2024, denying Ms. Cleveland's motion to set aside dismissal. Ms. Cleveland now appeals, raising two assignments of error:

1. The trial court erred in not acknowledging that the Louisiana Supreme Court Order of August 31, 2021 suspended the period of abandonment for 30 days resulting in the [premature] ex parte motion for abandonment[.]

2. The trial court erred in allowing form to prevail over substance in determining that an action had been abandoned.

STANDARD OF REVIEW

The issue of whether a lawsuit is abandoned is a question of law, subject to de novo review, see Pinnacle Construction Group, L.L.C. v. Devere Swepco JV, L.L.C., 2024-00406 (La. 2/6/25), 400 So.3d 878, 880, while the question of whether a step in the prosecution or defense of a case has been taken in the trial court for a period of three years is a question of fact subject to the manifest error standard of review, Davis v. Naquin, 2023-0057 (La. App. 1st Cir. 9/15/23), 375 So.3d 968, 971.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure article 561 provides the exclusive procedure for a judgment dismissing an action on the basis of abandonment. Hancock Bank of Louisiana v. Robinson, 2020-0791 (La. App. 1st Cir. 3/11/21), 322 So.3d 307, 311. First, the provisions for abandonment of an action become operative without a formal order. See La. Code Civ. P. art. 561(A)(2). Abandonment occurs automatically on the passing of three years without a step being taken by either party, and it is effective without a court order. McNealy v. Englade, 2019-0573 (La. App. 1st Cir. 2/21/20), 298 So.3d 182, 186. Second, on the ex parte motion to dismiss on the basis of abandonment of any party or other interested person, with an affidavit,² “the trial court shall enter a formal order of dismissal as of the date of its abandonment.” La. Code Civ. P. art. 561(A)(2); Hancock Bank of Louisiana, 322 So.3d at 311. Third, the plaintiff may file a motion to set aside the dismissal within thirty days of the date of the sheriff's service of the order of dismissal. La. Code Civ. P. art. 561(A)(3). The hearing on the motion to set aside dismissal is a contradictory hearing wherein the plaintiff must produce evidence as to why the order of dismissal shall be set aside. See Allen v. Brown, 2024-0534 (La. App. 1st Cir. 12/27/24), 404 So.3d 47, 49. Thus, the burden was on Ms. Cleveland to show that her action had not abandoned.

Louisiana Code of Civil Procedure 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 suit record; and (3) the step must be taken within three years of the last step taken by either party. Turner v. Moreau, 2024-0946 (La. App. 1st Cir. 7/3/25), 417 So.3d 1105, 1109, writ denied, 2025-00992 (La. 11/5/25), 420 So.3d 41. A “step” is a formal action before the court by any party intended to hasten the suit towards judgment or the taking of formal discovery. Id. Generally, when any party takes a step in the prosecution or defense of the action in the trial court, the abandonment period is interrupted as to all parties. Williams v. Montgomery, 2020-01120 (La. 5/13/21), 320 So.3d 1036, 1042.

The Louisiana Supreme Court has explained that a purpose of Article 561 is the prevention of protracted litigation filed without a serious intent to hasten the claim to judgment. Williams, 320 So.3d at 1041. Article 561 is to be liberally construed in favor of maintaining a plaintiff's action, and any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id. However, while the intention of Article 561 is not to dismiss actions as abandoned based on technicalities, abandonment is warranted where plaintiffs inaction during the three-year period has clearly demonstrated her abandonment of the action. Id.

The record reflects that Ms. Cleveland filed her petition for damages on June 21, 2017, and an amended petition for damages on September 18, 2017, adding Dr. Easton and BROC as defendants. On April 5, 2018, Dr. Easton and BROC filed a motion to compel, and thereafter they filed a motion for summary judgment on September 3, 2020. Ms. Cleveland filed an opposition to the motion for summary judgment on November 25, 2.020. Although a hearing on the motion for summary judgment was set for December 14, 2020, it was ultimately continued without date at the request of Dr. Easton and BROC. Motions to continue without date are not considered steps in the prosecution for abandonment purposes. See Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. Bickham, 2023-01364 (La. 10/25/24), 395 So.3d 792, 801; Hutchison v. Seariver Maritime, Inc., 2009-0410 (La. App. 1st Cir. 9/11/09), 22 So.3d 989, 994, writ denied, 2009-2216 (La. 12/18/09), 23 So.3d 946; Savoie v. Larmarque Ford, Inc., 2016-221 (La. App. 5th Cir. 12/7/16), 205 So.3d 1001, 1006. Thus, as the parties agree, the last step taken in the prosecution of docket number 659,099was by Ms. Cleveland on November 25, 2020, when she filed her opposition to the motion for summary judgment.

Extension of Abandonment Period Pursuant to Supreme Court Order

In her first assignment of error, Ms. Cleveland asserts the August 31, 2021 Louisiana Supreme Court Order suspending abandonment for a period of 30 days resulted in extending her abandonment period from November 25, 2023 to December 25, 2023. Therefore, Ms. Cleveland argues that the motion for status conference, which she filed in docket number 677,879 on November 27, 2023, was timely filed and should count as a “step” taken within the three-year abandonment period, interrupting same.

On August 31, 2021, the Louisiana Supreme Court issued the following order in connection with Hurricane Ida:

Acting under the authority of Louisiana Civil Code Article 3472.1 and Louisiana Code of Civil Procedure Article 562, and considering the state of emergency declared statewide by Governor John Bel Edwards as a result of then-Tropical Storm Ida in Proclamation 165 JBE 2021 on August 26, 2021 and the catastrophic damage that Hurricane Ida has caused in the state,

IT IS HEREBY ORDERED THAT:

***

3. Emergency suspension of abandonment: All periods of abandonment are hereby suspended statewide for thirty days commencing from the Governor's August 26, 2021 declaration of state of emergency.

Although repealed by Acts 2022, No. 469, § 3,³ at the time of the August 31, 2021 Louisiana Supreme Court Order, La. Code Civ. P. art. 562 stated:

A. ․ in the event the governor declares a state of emergency or disaster pursuant to [La.] R.S. 29:721 through 772, the Supreme Court of Louisiana may enter an order or series of orders as deemed necessary and appropriate to suspend the period of abandonment for a period of time not to exceed ninety days. ․

B. The right to file any pleading subject to the suspension as provided by Paragraph A of this Article shall terminate sixty days after the termination of the suspension as provided by Paragraph A of this Article.

The words of a law must be given their generally prevailing meaning. La. Civ. Code art. 11. Words and phrases shall be read in context and construed according to the common and approved usage of the language. La. R.S. 1:3; Luv N’ Care, Ltd. v. Jacket International Limited, 2019-0749 (La. 1/29/20), 347 So.3d 572, 577. However, technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. La. R.S. 1:3; see also La. Civ. Code art. 11. In determining the meaning of a word, phrase, or clause, the entire statute is to be considered. Luv N’ Care, Ltd., 347 So.3d at 578.

Pursuant to the order at issue, the period of suspension of abandonment was 30 days beginning on August 26, 2021. Thus, the suspension of abandonment terminated on September 27, 2021. See Benjamin v. Lafayette City-Parish Consolidated Government, 2022-266 (La. App. 3d Cir. 12/21/22), 3 54 So.3d 262, 266, writs denied, 2023-00078, 2023-00077 (La. 3/28/23), 358 So.3d 517, 518. The language of Article 562(B) was clear and provided a party with sixty days from the termination of suspension on September 27, 2021, or in this case until late November 2021, to file a pleading or otherwise take a step in the prosecution of her action in order to avail herself of the effects of suspension of abandonment pursuant to the August 31, 2021 Louisiana Supreme Court Order. See Benjamin, 3 54 So.3d at 266. Because Ms. Cleveland's abandonment period did not accrue until over two years later, we find the August 31, 2021 Louisiana Supreme Court Order suspending abandonment inapplicable in this case and Ms. Cleveland's matter abandoned as a matter of law on November 26, 2023. However, we note that November 26, 2023 was a Sunday; therefore, Ms. Cleveland had until the next day that was not a legal holiday—Monday, November 27, 2023—to interrupt abandonment. See La. Code Civ. P. art. 5059; La. R.S. 1:55(E)(3).

Actions Taken in Docket Number 677,879

In her second assignment of error, Ms. Cleveland asserts that her filing of a motion for status conference on November 27, 2023, counts as a step in this action (docket number 659,099) to interrupt abandonment, even though the motion was filed in docket number 677,879. Ms. Cleveland argues that although she filed her motion for status conference in docket number 677,879, the caption and section of court were correct and reflective of the action bearing docket number 659,099, therefore demonstrating her intent to file the motion in docket number 659,099. In support of her argument, Ms. Cleveland cites to Carlton v. Electrical Maintenance & Installation Co., Inc., 306 So.2d 881 (La. App. 1st Cir. 1974).

Carlton involved a suit for a money judgment based on the defendant's failure to pay a contractor, which was assigned docket number 164,468. Carlton, 306 So.2d at 882. The defendant filed an answer, incorrectly designating the pleading as docket number 164,486 (transposing the last two digits). This answer was filed in the record of the suit bearing the designated docket number until the Clerk of Court's office discovered, that the designated docket number was wrong; then the answer was filed by the Clerk in the record of the correct action, docket number 164,468. Id. However, in the meantime, a default judgment was confirmed in the original action. The defendant then sought and had the default judgment annulled. Id. This court affirmed the annulment, finding that the designation in the caption of the answer by an incorrect docket number was an insignificant and inadvertent error, noting that the proper designation of a pleading by the correct number of the action was in no way sacrosanct. Id. at 884. Moreover, this court noted that it could not accept plaintiff's contention that “no answer” had been filed in the original suit, when the answer was eventually filed by the Clerk, and also, when a copy of same was mailed to plaintiff's counsel of record. Id. Ms. Cleveland argues that like in Carlton, this court should disregard the “clerical error” of an incorrect docket number and look to the substance of the motion as a step in the prosecution in 659,099.

Dr. Easton and BROC assert that the present case is distinguishable from Carlton and that steps taken by Ms. Cleveland in a separate but related action do not constitute formal steps to prevent abandonment in this action, citing BAC Home Loans Servicing, LP v. Louis, 2020-0717 (La. App. 1st Cir. 5/13/21), 326 So.3d 904, 910 (noting that “steps” taken in another ordinary action do not interrupt the time period of abandonment in an executory action under La. Code Civ. P. art. 561).

Based on the facts gleaned from the record before us, we find this argument persuasive. Unlike in Carlton, the docket number on Ms. Cleveland's motion for status conference was not comprised of transposed numbers, or a typo; rather, the docket number written on the motion was for a related, but separate litigation involving the same plaintiff, Ms. Cleveland, and one of the original defendants, OLOL, that had already been dismissed from the 659,099 litigation. There is no evidence, despite the title of the litigation assigned docket number 677,879, that Dr. Easton and BROC were parties to 677,879, or received notice of the filings therein. Moreover, there was no discovery of the “unintentional filing” or action by the Clerk of Court, such that the motion for status conference was eventually filed in 659,099. Therefore, we find no error in the trial court's finding that the filing of the motion for status conference in a different docket number did not interrupt the accrual of abandonment in this separate and unconsolidated action. See Hardy v. A. Wilbert's Sons, L.L.C., 2006-1093 (La. App. 1st Cir. 9/19/07), 970 So.2d 1063, 1066 (finding that the signing of the case management order by the trial court in another division did not interrupt the running of the time period for abandonment for a lawsuit in a different division); Sassau v. Louisiana Workover Service, Inc., 607 So.2d 809, 812 (La. App. 1st Cir.), writ denied, 609 So.2d 259 (La. 1992) (formal action taken in a separate bankruptcy proceeding involving one of the defendants does not prevent abandonment of the action against other defendants in a state court action). For these reasons, we find that the trial court did not err in denying Ms. Cleveland's motion to set aside the dismissal of 659,099.

Dismissal of Action with Prejudice

On review of this matter, we note that the trial court's order of dismissal of Ms. Cleveland's claims due to abandonment was with prejudice. However, a dismissal of an action on the grounds of abandonment may only be made “without prejudice.” Davis, 375 So.3d at 972. Therefore, the dismissal of Ms. Cleveland's claims pursuant to Article 561 should have been “without prejudice.” Young v. Ross, 2025-0529 (La. App. 1st Cir. 11/7/25), 424 So.3d 830, 837. Accordingly, we amend the judgment dismissing Ms. Cleveland's claims from “with prejudice” to “without prejudice.”

CONCLUSION

For the reasons stated, we amend the trial court's September 19, 2024 judgment and affirm the judgment as amended, upholding the dismissal of Ms. Cleveland's suit due to abandonment without prejudice. Costs of this proceeding are assessed to appellant, Robin Cleveland.

AFFIRMED AS AMENDED.

FOOTNOTES

1.   Louisiana Code of Civil Procedure article 561(A)(1) provides in pertinent 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[.]”

2.   The defendants submitted with their motion and order an affidavit of their counsel of record attesting that no step in the prosecution or defense of the action had taken place during the three-year abandonment period.

3.   We note Louisiana Code of Civil Procedure article 196.2 was enacted by La. Acts 2022, No. 469, § 2, in place of Article 562 and provides as follows:In the event that the governor declares a state of emergency or disaster pursuant to [La.] R.S. 29:721 through 775, the Supreme Court of Louisiana, rather than the governor, may issue orders suspending or extending deadlines applicable to legal proceedings in courts, including periods of time applicable for abandonment of actions, in all or part of the state of Louisiana. A court order suspending or extending deadlines applicable to legal proceedings in courts shall have the effect of extending only those deadlines that would have otherwise accrued during the period of time specified in the order. After the period of suspension or extension has expired, a party shall have an amount of time as specified in the court order to file any pleading affected by the suspension or extension. If no amount of time is specified, a party shall have thirty days after the period of suspension or extension has expired.

FIELDS, J.