MILLING BENSON WOODWARD LLP v. OLGA PAVLOVNA BLAKLEY (2026)

Dr. Olga Pavlovna Blakley (“Blakley”) appeals the December 5, 2024, summary judgment granted against her for attorneys’ fees allegedly earned by Milling, Benson, Woodward, L.L.P. (“Milling”). Milling represented Blakley in connection with an investigation of her medical practices by the Louisiana State Board of Medical Examiners (the “Board”). The threshold question in this case is whether the suit was abandoned. For reasons that follow, we hold that the case was abandoned and we reverse the summary judgment granted by the trial court and render judgment in favor of Appellant.

Prior Proceedings and Underlying Facts

Blakley was an employee of Medical and Diagnostic Clinic, L.L.C. (“MDC”). She and two other physicians who worked for MDC were notified that the Board was investigating some of their practices. The record shows that Milling began its work for Blakley on or about May 2, 2014 and terminated its services in early October, 2014.

A portion of Milling's bills was paid by the Clinic. At some point, the Clinic wrote to Milling advising that it would not pay for services rendered after September 4, 2014.¹ Blakley did not pay the remaining balance and Milling filed this suit seeking the balance due in the amount of $65,551.51.

The trial court granted summary judgment in favor of Milling in the amount of $59,795 together with costs and legal interest. That summary judgment was reversed and remanded by this court's decision on June 17, 2020.²

The trial court record reflects that Milling took no action in the prosecution of this case from the date of this court's June 17, 2020, opinion until January 3, 2024, when it filed a second motion for summary judgment. That summary judgment motion was granted and it is the subject of these consolidated appeals.

On January 31, 2024, before the summary judgment was granted, Blakley filed a Motion for Abandonment of Action and to Continue Hearing on Motion for Summary Judgment and Incorporated Memorandum in Support. The motion, prepared by Blakley's counsel,³ provided three alternative orders for the trial court's consideration as follows:

IT IS ORDERED that the above-entitled and numbered cause be and is hereby dismissed against all defendants, with prejudice, all parties to bear their own costs, pursuant to La. C.C.P. art. 561. ALTERNATIVELY, IT IS ORDERED that Plaintiff, Milling, Benson and Woodard, LLP's Motion for Summary Judgment currently set for hearing on March 7, 2024 is continued to ____ day of __________, 2024 at _____ o'clock a.m. ALTERNATIVELY, IT IS FURTHER ORDERED that Plaintiff, Milling, Benson and Woodard, LLP, show cause, if any it can, on the ____ day of _______, 2024 at ____ o'clock a.m. why Dr. Blakley's Motion for Abandonment of Action should not granted.(sic)

On February 14, 2024, while the above order was still under consideration, Blakley filed a Supplemental Motion for Abandonment of Action and to Continue Hearing on Motion for Summary Judgment and Incorporated Memorandum in Support. Attached to the supplemental motion were the same three alternative orders.

The trial judge signed the proposed order attached to the original motion on February 15, 2024. It appears to grant the motion for abandonment while also providing dates for the continuance of the motion for summary judgment to May 2, 2024, and setting the motion for abandonment on the same date.

The proposed orders attached to the supplemental motion were addressed by the trial court on February 21, 2024. On this occasion, the judge stamped “GRANTED” across the paragraph dismissing the case as abandoned and “DENIED” across the paragraphs that would have continued the date for trial of the summary judgment and setting the motion for abandonment for hearing.

On March 15, 2024, Blakley's current counsel, Frank DiVittorio (sometimes referred to as “DiVittorio”), made his first appearance in the record. He filed a “Motion for Leave of Court to File Amended Answer and Reconventional Demand.” The trial court granted the motion on April 5, 2024.⁴ Counsel then filed an “Unopposed Motion to Continue” the hearings on the Motion for Summary Judgment and “all other matters currently set for May 2, 2024.” The trial court, on April 18, 2024, issued its order re-setting “the motion for summary judgment and all matters set for hearing on May 2, 2024.” The new hearing date was June 27, 2024.

On May 9, 2024, Blakley's prior counsel, Joseph Bruno of Bruno and Bruno, L.L.P. (collectively or individually, “Bruno”) filed a motion to formally withdraw from Blakley's representation. Attached to the motion was a copy of a letter addressed to Blakley advising her that he had not been able to contact with her by phone, email or regular mail. In that same letter, Bruno advised (among other things) that, “in Civ. No. 2015-11551,⁵ there is a hearing set for June 27, 2024 at 9:00 a.m. on a Motion for Summary Judgment filed by Plaintiff and on a Motion for Abandonment filed on your behalf.” The letter also advised that another Civil District Court case in which Blakley is the plaintiff suing Milling (Docket No. 2015-8274) was still pending and that there were no pending matters or scheduling orders in effect.⁶

Bruno's filing was followed on May 13, 2024, by a “Motion for Leave of the Court to File Motion to Rescind Exparte Motion to Withdraw as Counsel of Record” that was filed by Blakley in proper person. In her motion, Blakley alleges that she was unaware of and did not consent to Bruno's withdrawal and that she was very pleased with her long-term relationship with the firm. She also alleged that she had been attending to her husband following a heart attack and did not become aware of Bruno's efforts to contact her. Most important to the resolution of this case, Blakley advised the court that, “Dr. Blakley did Not (sic) abandon this matter and was handling a Life-Threatening Family Emergency (sic) of her husband's major deadly STEMI “Widow-maker” heart attack.”⁷ Finally, Blakley asks the trial court to rescind it's orders allowing Bruno to withdraw and granting the abandonment of the case.

Issues on Appeal

These consolidated appeals require this court to address three issues. First, the court must decide whether the case was dismissed for abandonment. Next, the court must determine whether Blakley waived her defense of abandonment. Finally, and only if the court finds that Blakley waived the abandonment, we must decide whether the summary judgment was properly granted.

Abandonment

More than three years elapsed between this court's opinion reversing Milling's first summary judgment and Milling's second motion for summary judgment, which is the next action in prosecuting the case. La. C.C.P. art. 561(A)(1) provides, in pertinent part, 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(A)(2) makes provisions for the effectuation of the abandonment as follows:

This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit that states 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. The sheriff shall serve the order in the manner provided in Article 1314 and shall execute a return pursuant to Article 1292.

Factually, there is no doubt that Milling failed to take any step in the prosecution or defense of this case for more than three years. Milling does not argue to the contrary. Milling's motion for summary judgment did not cure the abandonment. The trial court's orders of February 15 and February 21, 2024, recognized and confirmed that Milling's case was abandoned. The court's orders were served on Milling by the St. Tammany Parish Sheriff's Office on March 7 and April 9, 2024 respectively.

The Code of Procedure provides the following remedy for a party whose case has been deemed abandoned in error. It provides:

3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

La. C.C.P. art. 561(A)(3)

The record shows no indication that Milling sought relief under that rule. Clearly, Millings’ case was legally abandoned 31 days after the sheriff's service on April 9, 2024, at the latest.

Waiver of abandonment

The issue of waiver in this case is a legal question, not factual. The factual matter submitted for our review can be determined by reference to the record and is not disputed. This court must address itself to the proper application of the law to the agreed facts. The appropriate standard of review on the legal issue of waiver in this case is de novo. Devall v. Home Finders International, Inc., 2022-0774, p. 11 (La. App. 4 Cir. 5/8/23), 368 So. 3d 125, 132.

The doctrine of waiver of abandonment has a legislative history ⁸ that predates the existing statutory scheme, which does not mention waiver. Therefore, our analysis of the doctrine must be based on the jurisprudence that now forms it. Both parties correctly cite the dictate of the Supreme Court that, “Post-abandonment waiver is limited to a situation where a defendant takes an action which renunciates the defense of abandonment by clearly or directly demonstrating his preference and intent to proceed—such as submitting the case for decision to obtain a judicial resolution on the merits.” Foundation Elevation & Repair, LLC v. Miller, 24-0810, p. 7 (La. 5/9/25), 408 So. 3d 893, 898. (emphasis added)

In this case, the trial court issued an order that set a motion for summary judgment and motion declaring abandonment for hearing. In that same order, she implicitly granted the motion for abandonment. From that point forward, nothing in this case can be considered clear or direct. Days later, the trial court issued another order that should have made the court's position clear by stamping “Denied” on the portion of a second, identical order that sought to set the summary judgment and abandonment request for hearing. The first order was never recalled.

At the same time that the confusing orders were issued, Blakley was changing her counsel of record. Her former counsel wrote to her explaining his withdrawal from representation and gave a status report on the two cases in which he appeared as counsel. In one, Blakley was the plaintiff against Milling. In the other, she was Milling's defendant. She wrote to the court, pro se, declaring that she had abandoned none of her claims. It is apparent from her language that she misunderstood the status report and thought the court had dismissed her suit against Milling. Her substituted counsel asked for leave of court to file an answer and reconventional demand. It would appear that he did not realize that Blakley's claims against Milling were already the subject of another lawsuit. This is evident by the fact that he filed an answer, but no reconventional demand was ever filed.

In brief, Milling argues that actions by Blakley or on her behalf showed a clear or direct intent to maintain the litigation. We disagree. Considering the obvious confusion displayed in Blakley's pro se motion, it cannot be said to be evidence of her intention to continue the litigation. The filings made by her counsel, including the opposition to the motion for summary judgment, were all made to defend the claims that appeared, on the record, to remain open. Included in those filings was Blakley's memorandum in support of the motion to declare the case abandoned. At no time did Blakley knowingly withdraw her defense of abandonment. Neither did Milling make a motion to reinstate the case.

Based on the filings made and the timing of the filings, we disagree with the trial court's implicit holding that Blakley showed a clear or direct intention to continue the abandoned litigation.

In these consolidated appeals, case number 2026-0041 appeals the trial court's decision to deny the motion for abandonment. The companion appeal, 2026-0042, addresses the merits of the summary judgment that the trial court granted on the same date. Because we hold that the case was abandoned the appeal related to the summary judgment is moot.

For the reasons stated above, we reverse the judgment denying the motion for abandonment and the motion for summary judgment and render judgment dismissing the lawsuit that is the subject of these appeals.

REVERSED AND RENDERED.

I concur in the result reached by the majority but write separately to elaborate on the waiver analysis. In doing so, I follow Justice Griffin's concurrence in Foundation Elevation & Repair, LLC v. Miller, 24-0810 (La. 5/9/25), 408 So.3d 893 (Griffin, J., concurring), which read that the Louisiana Supreme Court's renunciation standard was consistent with, and indeed governed, the result the Court reached three months earlier in Pinnacle Constr. Grp., L.L.C. v. Devere Swepco JV, L.L.C., 24-0406 (La. 2/6/25), 400 So.3d 878. I write to set out that framework in full and to explain why it does not compel a waiver finding on this record.

Louisiana has long treated abandonment “as a form of liberative prescription.” Chevron Oil Co. v. Traigle, 436 So.2d 530, 535 n.4 (La. 1983). The Louisiana Supreme Court traced this to two distinct prescription concepts. Acknowledgment, per Melancon v. Continental Cas. Co., 307 So.2d 308, 311 (La. 1975), is a lesser showing that halts prescription before it runs. Id. Renunciation is “the term designating the decision to abandon rights derived from a prescriptive period that has accrued,” which is why Chevron favored it for post-abandonment conduct. Found. Elevation, 24-00810, p. 5, 408 So.3d at 897 (citing Lima v. Schmidt, 595 So.2d 624, 631 (La. 1992)); see also La. C.C. art. 3449, cmt. (c). Renunciation “must be clear, direct, and absolute and manifested by words or actions of the party in whose favor prescription has run.” Lima, 596 So.2d at 631 (citation omitted). Before the abandonment period elapses, the only relevant inquiry is statutory. That is, whether an act qualifies as a “step in [the] prosecution or defense” under La. C.C.P. art. 561(A)(1).

Chevron applied renunciation to abandonment, holding that a defendant who submits an abandoned case for decision waives the defense. Chevron, 436 So.2d at 535. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, later described post-abandonment waiver in terms of acknowledgment. In Foundation Elevation, however, the Court characterized that discussion in Clark as unexplained dicta concerning a foundational “step” question under La. C.C.P. art. 561(A)(1), rather than the renunciation of an abandonment defense after the abandonment period had accrued. Found. Elevation, 24-00810, pp. 6-7, 408 So.3d at 898. The Court clarified that “the proper analysis of a defendant's post-abandonment action is through principles of renunciation, not acknowledgement.” Id., 24-00810, p. 7, 408 So.3d at 898. In doing so, the Court expressly disavowed the line of court of appeal decisions extending Clark’s acknowledgment dicta to post-abandonment conduct. Id., 24-00810, p. 8, 408 So.3d at 899 n. 6.¹ Renunciation, by contrast, requires “clear, direct, and absolute” conduct, a materially higher bar. Id., 24-0810, p. 5 (citing Lima, 595 So.2d at 631); see also Slaughter v. Arco Chem. Co., 05-0657, p. 8 (La. App. 4 Cir. 4/26/06), 931 So.2d 387, 393 (“[I]f we were to treat abandonment as a form of prescription, then we must consider ‘renunciation’ to be the truly correlative analogous concept.”).

The majority opinion in Foundation Elevation does not itself discuss Pinnacle. It was Justice Griffin, concurring separately, who placed that decision within the renunciation framework: “[a] defendant's post-abandonment action of filing a motion to continue a hearing, with an accompanying order requesting a new date be set, clearly demonstrates a preference and intent to proceed thereby renouncing the defense of abandonment.” Found. Elevation, 24-00810, 408 So.3d at 899 (Griffin, J., concurring) (discussing Pinnacle, 24-0406, pp. 4-5, 400 So.3d at 881). I follow that reading because it gives full effect to Pinnacle’s holding that a continuance accompanied by a request for a specific new hearing date can suffice and reversing a court of appeal that had held continuances categorically insufficient. Pinnacle, 24-0406, pp. 4-5, 400 So.3d at 881.

Although neither party's brief cites Pinnacle, the case supplies the closest available analogy to Milling's position. Dr. Blakley, through counsel, filed four separate unopposed motions to continue between February and August 2024, each with a proposed order fixing a specific new hearing date, continuing both her own Motion for Abandonment and Milling's Motion for Summary Judgment. On its face, that resembles Pinnacle’s fact pattern. A continuance, together with a specific requested date, is precisely what Pinnacle held objectively demonstrates an intent to advance the litigation. Id., 24-0406, p. 4-5, 400 So.3d at 881.

The sequence of events distinguishes the two cases. In Pinnacle, the defendants had asserted no abandonment defense at all before they moved to continue the hearing on pending matters in the case, including the annulment petition against a co-defendant. Their continuance was their first and only relevant post-abandonment period conduct, and it sought a future hearing on the merits of their own defense. Id., 24-0406, p. 2-3, 400 So.3d at 880.

In the case sub judice, Dr. Blakley had already invoked abandonment on January 31, 2024, before any of the four continuances were filed, and each of those continuances did not abandon that position but instead sought to have the abandonment question heard together with, and prior to, Milling's renewed summary judgment motion. Her later participation was therefore conditional on, and consistent with, preserving the abandonment defense she had already raised, rather than a submission of the case for decision on the merits independent of that defense. See Found. Elevation, 24-00810, p. 7 (La. 5/9/25), 408 So.3d 893, 898 (renunciation occurs when a party “submit[s] the case for decision to obtain a judicial resolution on the merits”) (citing Chevron, 436 So.2d at 535). A party who has already raised abandonment and asks the court to resolve that threshold question at the same hearing as the opposing party's dispositive motion has not renounced the defense; rather, she has asked the court to decide it.

Nor does Dr. Blakley's Motion for Leave to File Amended Answer change the analysis. Under Foundation Elevation, “[m]ere acknowledgement of the existence of the proceedings is insufficient” to waive abandonment. Found. Elevation, 24-00810, p. 8, 408 So.3d at 899. In the case sub judice, counsel's motion did not even proceed to a reconventional demand, producing only a defensive answer of the kind filed to avoid default, not to seek “judicial resolution on the merits.” See La. C.C.P. art. 561(A)(1); Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. v. Bickham, 23-01364, p. 6 (La. 10/25/24), 395 So.3d 792, 799 (abandonment balances a litigant's day in court against “the legislative purpose that suits, once filed, should not indefinitely linger”) (citation omitted).

Following Justice Griffin's renunciation based reading of Pinnacle, I find that case distinguishable. Dr. Blakley invoked abandonment before taking any of the actions upon which Milling now relies. Those actions sought resolution of the abandonment question itself, not submission of the case for a decision on the merits independent of that defense.

Accordingly, none of Dr. Blakley's post-abandonment filings clearly, directly, and absolutely demonstrated an intent to proceed sufficient to renounce the abandonment that had already occurred by operation of law. I therefore concur in the majority's holding that the action was abandoned and was not thereafter revived.

FOOTNOTES

1.   It is not clear from the record whether the Clinic ever paid for all services rendered by Milling before September 4, 2014.

2.   Milling, Benson, Woodward, LLP v. Blakley, 2020-0115 (La. App. 4 Cir. 6/17/20), 302 So. 3d 98, 99.

3.   At the time the motion was filed, Blakley was represented by Joseph Bruno.

4.   Although the trial court's order gave leave to file a reconventional demand, Blakley did not file such a demand. She filed a purely defensive answer with affirmative defenses of the type an attorney would ordinarily file to protect the record against default judgments.

5.   The Civil District Court docket number for the case now before the court.

6.   In Blakley's other case, she sued Milling for breach of contract and other causes of action. In that case, she alleged that Bruno undertook her representation in the Board's investigation and completed it without any formal charges being filed against her. She alleged that she was overcharged for Milling's services because she paid Bruno approximately $7,000 to resolve the same investigation for which Milling had billed approximately $107,000.

7.   Critical to our analysis is the fact that Blakley argued that she did not abandon the case. This clearly indicates that she was confused about the abandonment order. The abandonment order does not suggest that Blakley abandoned anything.

8.   The concept of dismissal of a lawsuit for abandonment was originally found in La. C. C. art. 3519 in the Code of 1870. The jurisprudential notion that one may waive the defense of abandonment was created long before the enactment of La. C.C.P. art. 561 in 1960.

1.   The Louisiana Supreme Court stated that the intermediate appellate decisions relying on Clark’s acknowledgment approach to post-abandonment conduct “are not supported by the law and should not be relied upon” to that extent. See, e.g., Bell v. Kreider, 04-594 (La. App. 5 Cir. 11/30/04), 890 So.2d 648; Tessier v. Pratt, 08-1268 (La. App. 1 Cir. 2/13/09), 7 So.3d 768; Gordon v. Gordon, 16-0008 (La. App. 4 Cir. 6/8/16), 195 So.3d 687; Burgess, Inc. v. Par. of St. Tammany, 17-0153 (La. App. 1 Cir. 10/25/17), 233 So.3d 58; Gilbert v. Metro. Life Ins. Co., 20-0850 (La. App. 1 Cir. 2/22/21), 321 So.3d 1023.

Chief Judge Roland L. Belsome

LOBRANO, J., CONCURS WITH REASONS.