The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-469
CHRISTOPHER BROWN, ET AL.
VERSUS
SUTHERLAND LUMBER, INCORPORATED, ET AL.
**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 195,641
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
**********
JOHN D. SAUNDERS
JUDGE
**********
Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.
AFFIRMED.
Thomas Overton Wells
Attorney at Law
1254 Dorchester Drive
P. O. Box 13438
Alexandria, LA 71315
(318) 445-4500
Counsel for Defendant/Appellee:
Sutherland Lumber, Incorporated
Christopher Brown
Reg. No. 10980-035 FCC
P. O. Box 1034, USP Coleman
Coleman, FL 33521
SAUNDERS, Judge.
This is a case involving abandonment by plaintiff who alleged that he was
injured while shopping as a patron on defendant’s property. Suit was originally filed
on April 16, 1999. According to the suit record, the only action taken by either party
from March 23, 2006, until May 26, 2009, was a motion for appointment of counsel
and a motion to take off calendar filed by plaintiff. Further, plaintiff has not alleged
that any discovery has transpired during this time frame.
On September 1, 2009, defendant filed a motion to dismiss for want of
prosecution. The trial court issued an order dismissing plaintiff’s case on that date.
Plaintiff, proceeding pro se, filed this appeal, alleging that the trial court erroneously
granted the order dismissing his suit. We find no error by the trial court and affirm.
FACTS AND PROCEDURAL HISTORY:
Christopher Brown (Brown) and Thomasa Brown filed suit against Sutherland
Lumber Incorporated (Sutherland) and XYZ Insurance Company on April 16, 1999.
Brown alleged that he was injured by a roll of carpet that fell onto him in a Sutherland
store on May 27, 1998. Brown alleged that a store associate was retrieving the carpet
for him when it fell.
On June 17, 1999, Sutherland filed an exception of vagueness, a motion to
strike, and an answer. The exception and motion were set for hearing on July 19,
1999. The matter was passed on that hearing date. On June 15, 1999, Brown filed
a first amending and supplemental petition correcting the objections outlined in the
exception and motion. The matter was set for a trial on December 16, 2003. Brown’s
counsel continued the trial until April 22, 2004. The trial date passed without
mention in the record.
On May 28, 2004, Brown, apparently incarcerated in federal prison, filed a pro
se “Petition for a Writ of Habeas Corpus as Testificandum Transfer of Inmate to State
Agents for Production on State Writ.” Next, Brown’s counsel filed and was granted
a motion to withdraw from the suit on January 18, 2005.
On April 14, 2005, Brown filed a “Writ of Habeas Corpus Ad Testificandum
Pick Up Order.” The trial court found this writ moot as no hearing or trial was then
currently set on this matter.
Brown then filed a motion for summary judgment on February 27, 2006, but
failed to have this motion served on Sutherland. A hearing date was set for April 3,
2006. A motion for production of plaintiff for hearing on motion for partial summary
judgment was filed by Brown on March 13, 2006. The order on this motion was not
signed by the trial court. Brown next filed a “Writ of Habeas Corpus ad
Testificandum,” which was denied. There is nothing in the record as to what
transpired on the April 3, 2006 hearing date.
On May 4 and May 31, 2007, Brown filed a motion for appointment of counsel.
The trial court denied these motions. On September 27, 2007, and October 19, 2007,
Brown filed a motion to take off calendar. The trial court denied the motion and, via
written letter, informed Brown that no such motion existed and that he needed to
perform some step in the prosecution of his case in order to prevent abandonment.
Next, Brown filed another motion for summary judgment on May 26, 2009.
Brown then filed various motions not relevant to this appeal.
On September 1, 2009, Sutherland filed a motion and order to dismiss for want
of prosecution arguing that Brown had failed to take a step in prosecution of his case
from the three years prior to his May 26, 2009, motion for summary judgment. The
order was granted under La.Code Civ.P. art. 561. Brown has appealed the grant of
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this order, arguing that his case was improperly judged as abandoned by the trial
court.
DISCUSSION OF THE MERITS:
Brown has asserted various arguments. While his brief fails to delineate any
specific assignment of error, the arguments he presents all question the
appropriateness of the trial court’s judgment dismissing his case due to abandonment.
Thus, we will conduct a review of the record to determine whether the trial court
erred in this regard.
Louisiana Code of Civil Procedure Article 561(A)(1) states, in pertinent part,
that “[a]n 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.” Review of
whether an action is abandoned is a question of law. Johnson v. Calcasieu Parish
Sheriff’s Dept., 06-1179, 06-1180 (La.App. 3 Cir. 2/7/07), 951 So.2d 496. The
standard of review applicable to a question of law is simply a determination if the
lower court’s decision is correct. Id.
Our supreme court, in Clark v. State Farm Mutual Automobile Insurance Co.,
00-3010, pp. 5-6 (La. 5/15/01), 785 So.2d 779, 784 (emphasis and footnotes omitted),
stated the following:
Article 561 has been construed as imposing three requirements on
plaintiffs. First, plaintiffs must take some “step” towards prosecution of
their lawsuit. In this context, a “step” is defined as taking formal action
before the court which is intended to hasten the suit toward judgment,
or the taking of a deposition with or without formal notice. Second, the
step must be taken in the proceeding and, with the exception of formal
discovery, must appear in the record of the suit. Third, the step must be
taken within the legislatively prescribed time period of the last step
taken by either party; sufficient action by either plaintiff or defendant
will be deemed a step.
In the case before us, Sutherland submitted an affidavit executed by the clerk
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of court for Rapides Parish dated August 25, 2009. The affidavit states:
Pam Sanchez, Deputy Clerk of Court, who, after being duly sworn, did
depose and say he/she has examined the suit record in these proceedings
and that no steps have been taken for a period in excess of three (3)
years in the prosecution or defense of this action, on behalf of
Christopher Brown and Thomasa Brown with the last action having
been taken in this matter on their behalf was on behalf of Christopher
Brown which was a motion for summary judgment filed on February 27,
2006[,] and the next filing in prosecution of this matter was another
Motion for Summary Judgment filed on May 26, 2009. The Filings
between 2006 and 2009 were as follows:
1. Request for Writ of Habeas Corpus March 13, 2006;
2. Motion to Appoint Counsel May 31, 2007;
3. Motion to Take off Calendar October 1, 2007;
4. Motion for Summary Judgment May 26, 2009;
5. Motion to Continue hearing on Motion August 7, 2009.
As is clear from the affidavit, the only action taken by Brown or Sutherland
that appear in the record of the suit the three years prior to May 26, 2009, are a
motion to appoint counsel and a motion to take off calendar. Louisiana law is
consistent in holding that a change of counsel via withdrawal, substitution, or
enrollment is not considered a step under La.Code Civ.P. art. 561. See Chevron Oil
Co. v. Traigle, 436 So.2d 530 (La.1983); Bertrand v. State ex rel. Dept. of Transp.
and Dev., 02-1163 (La.App. 3 Cir. 2/5/03), 838 So.2d 136, writ denied, 03-634 (La.
5/2/03), 842 So.2d 1105; Satterthwaite v. Byais, 05-10 (La.App. 1 Cir. 7/26/06), 943
So.2d 390; Morgan v. Hopkins, 36,506 (La.App. 2 Cir. 10/23/02), 830 So.2d 459,
writ denied, 02-2866 (La.1/31/03), 836 So.2d 71; Varnado v. Gentilly Med. Clinic for
Women, 98-264 (La.App. 4 Cir. 12/23/98), 728 So.2d 479, writ denied, 99-146 (La.
3/19/99), 740 So.2d 113.
Our supreme court, in Chevron, 436 So.2d at 532-33, stated that “[s]uch a
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motion grants to counsel the right to take ‘steps’ toward prosecution of his client’s
case, but does not itself constitute such a ‘step.’” While the motion for appointment
of counsel is not technically a motion to withdraw, substitute or enroll as counsel,
Brown was proceeding pro se and, in essence, was requesting that the court appoint
him counsel so that counsel could replace him. Therefore, it stands to reason that a
motion to have counsel appointed would also not be considered a step in furtherance
of bringing a suit to judgment.
Brown’s motion to take off calendar, filed October 1, 2007, states that “Brown
respectfully asks this Court to take complaint off the Court’s calendar, until, Brown
can be able to litigate the above style complaint to completion.” This request clearly
is not a step under Article 561. Rather, it is a request by Brown to stop proceedings.
While this court is sympathetic to Brown’s predicament in that he allegedly
could not find counsel to represent him, nor could he appear in court, as he was
incarcerated, his inability to appear in court did not hinder Brown from taking a step
under La.Code Civ.P. art. 561, nor does his incarceration fall within an exception to
the abandonment rules. See Jones v. Phelps, 95-607 (La.App. 1 Cir. 11/9/95), 665
So.2d 30, writ denied, 95-2907 (La. 2/2/96), 666 So.2d 1104. Moreover, Brown was
graciously warned by the trial court in a letter sent to he and Sutherland’s counsel on
October 15, 2007, that stated:
The litigants must continue to take some action to prevent abandonment.
The plaintiff here must take some step so that there is never a 3 year
period where no action takes place. There are various means of written
discovery that can be done and filed periodically to prevent
abandonment.
There is no evidence in the record that Brown or Sutherland conducted any
discovery nor has Brown alleged that any such discovery has taken place. Therefore,
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we find no error by the trial court in dismissing Brown’s suit against Sutherland due
to abandonment under La.Code Civ.P. art. 561. Accordingly, we affirm the trial
court’s judgment.
CONCLUSION:
Brown failed to properly assign any specific error. Given that he was
proceeding pro se, we conducted a general review of whether the trial court properly
found that his case was abandoned. We have found no error in the trial court’s
judgment. Therefore, we affirm the trial court’s judgment dismissing Brown’s case.
Costs of this appeal are to be paid by Christopher Brown.
AFFIRMED.
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