The opinion
DO NOT PUBLISH
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1136
TERRY AND DEBRA CARTER, DAVID AND LUCILLE CAMPO
VERSUS
RAPIDES PARISH SCHOOL BOARD
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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 226,362
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE
************
J. DAVID PAINTER
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D.
Saunders, and J. David Painter, Judges.
Saunders, J., dissents and assigns written reasons.
AFFIRMED.
Thomas D. Davenport, Jr.
1628 Metro Drive
Alexandria, LA 71301
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Terry and Debra Carter
Jon K. Guice
Courtney T. Joiner
Linda K. Ewbank
1881 Hudson Circle
Monroe, LA 71201
COUNSEL FOR DEFENDANT/APPELLEE:
Rapides Parish School Board
PAINTER, Judge
Plaintiffs, Terry and Debra Carter, appeal the dismissal of their suit
against the Rapides Parish School Board (RPSB) on grounds of
abandonment. For the following reasons, we affirm the judgment of the trial
court.
FACTS
On November 30, 2006, the Carters and David and Lucille Campo
filed suit against the RPSB in connection with alleged wrongful
terminations. On November 10, 2008, the Carters filed a supplemental and
amending petition which essentially eliminated the Campos from the suit.
Counsel for the Carters, John W. Scott, died on April 25, 2009. Albin
Provosty was appointed as curator for Scott to determine the status of the
cases and to advise Scott‟s clients to retain new counsel. Provosty contacted
the Carters and told them that they needed to take action which would be
considered a step in the prosecution of the case by November 10, 2011. The
Carters retained counsel, but on April 25, 2011, the RPSB moved to dismiss
the case based on abandonment.
The trial court granted the motion, finding that the Carters had not
taken a step in the prosecution of the case for three years. The Carters
appeal.
DISCUSSION
Louisiana Code of Civil Procedure Article 561 provides, in pertinent
part, that:
A. (1) An action, except as provided in Subparagraph (2)
of this Paragraph, is abandoned when the parties fail to take any
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step in its prosecution or defense in the trial court for a period
of three years . . . .
....
(3) This provision shall be operative without formal
order, but, on ex parte motion of any party or other interested
person by affidavit which provides 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.
The question before this court is whether the November 10, 2008
supplemental petitions constituted a step in the prosecution of the Carters‟
case. The trial court, in ruling on the motion to dismiss, found that the
supplemental petition did not raise any new issue. The Carters argue that it
was a step in the prosecution because it added factual allegations that
support their claims and expanded the basis of the cause of action.
This court, in Carraway v. City of Alexandria, 96-1629, pp. 4-5
(La.App. 3 Cir. 4/30/97), 693 So.2d 314, 316 stated that: “the filing of an
amended petition is a „step‟ within the meaning of Article 561, if the
amended petition is more than a restatement of the original petition.”
After reviewing the November 8, 2008 supplemental and amending
petition, we find that it is a restatement of the original petition with the
omission of the Campos as plaintiffs. Nothing else of substance was changed
or added. As a result, we agree with the trial court that the filing of the
supplemental and amending petition does not constitute a step in the
prosecution of the case. Therefore, we find no error in the trial court‟s
decision to dismiss Plaintiffs‟ case.
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CONCLUSION
For these reasons, we affirm the judgment of the trial court. Costs of
this appeal are assessed to Plaintiffs/Appellants, Troy and Debra Carter.
AFFIRMED.
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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1136
TERRY AND DEBRA CARTER, ET AL.
VERSUS
RAPIDES PARISH SCHOOL BOARD
SAUNDERS, Judge, dissents and assigns written reasons.
I disagree with the majority opinion. Our Supreme Court, in Clark v. State
Farm Mut. Auto. Ins. Co., 00-3010, pp. 8-9 (La. 5/15/01), 785 So.2d 779, 785-86,
stated:
The jurisprudence has uniformly held that [La.Code Civ.P. art.]
561 is to be liberally construed in favor of maintaining a plaintiff’s
suit. The jurisprudence has echoed some general policy considerations
that dictate this result. Oft-quoted is the following statement by
Justice (then Judge) Lemmon in Kanuk v. Pohlmann, 338 So.2d 757,
758 (La.App. 4th Cir.1976), writ denied, 341 So.2d 420 (La.1977):
The purpose of the C.C.P. art. 561 is to dismiss actions
which have been abandoned, and the article provides for
dismissal of those cases in which a plaintiff’s inaction
during a legislatively ordained period has clearly
demonstrated his abandonment of the case. The article
was not intended, however, to dismiss those cases in
which a plaintiff has clearly demonstrated before the
court during the prescribed period that he does not intend
to abandon the action.
In my view, the filing of a supplemental, amending petition, however
innocuous, constitutes a “step” taken in prosecution of a suit. This case is the first
in Louisiana jurisprudence in which a suit is deemed abandoned because the
supplemental, amending petition is simply a restatement of the facts alleged in the
original petition. In the Carraway case cited by the majority opinion, this court
found that the supplemental, amending petition contained items not originally
alleged.
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In Carraway, the “requirement” that the supplemental, amending petition
has to be more than a restatement of the facts alleged in the original petition was
stated as such to be in agreement with a Fourth Circuit case, Guarino v. Pendleton
Memorial Methodist Hospital, 94-1264, 94-2064 (La.App. 4 Cir. 2/23/95), 650
So.2d 1243. . This “requirement” that the Carraway court read into the Guarino
decision was merely an argument made by counsel representing the defendant
physician in a malpractice action. The Fourth Circuit found no merit to that
argument. At no point in the Guarino opinion does the Fourth Circuit state that a
supplemental, amending petition must be more than a restatement of the original
petition. The case before us now takes Carraway’s misstatement of Guarino and
cites that misstatement as the linchpin of its decision. This is a substantial change
in Louisiana jurisprudence which runs contrary to the clear intent of Article 561
and also runs contrary to our supreme court’s jurisprudence.
Additionally, I do not think that the majority opinion’s rule or ruling is in the
spirit of La.Code of Civ.P. art. 561. I think the correct application of Article 561 is
best encapsulated by this court in DOTD v. Waste Management, Inc., 626 So.2d 59
(La.App. 3 Cir. 1993). There, an enlightened panel of our court stated:
For the purpose of La.Code Civ.P. art. 561, a “step” in the prosecution
or defense is taken when a party “takes formal action, before the court
and on the record, intended to hasten the matter to judgment.”
Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). The word
requires liberal construction. Bissett [v. Allstate Ins. Co., 567 So.2d
598 (La.1990)](Shortess, dissenting). Interpreting the word liberally,
we do not believe that it is necessary that the step actually move the
case forward as the trial judge apparently believed. We think the more
important consideration is whether the step taken demonstrates that
the party has not abandoned either the prosecution or the defense of
the case.
Id., at 60.
Moreover, even using the “requirement” deemed necessary by the majority
opinion, I feel that this case warrants finding against abandonment. The original
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petition filed in this case cited two plaintiffs while the supplemental, amending
petition removes one of those plaintiffs. To me, this, in and of itself, is a “step.”
The Rapides Parish School Board can now focus its defense on the single plaintiff
remaining, Mr. Carter.
Further on this point, Paragraph 5 of the original petition states that Mr.
Campo “is unable to squat, to dig ditches and related manual labor” while merely
stating that “Mr. Carter underwent surgery on his left shoulder, was thereafter
allowed to return to work with medical physical limitations on his duties, and has
suffered complications wherein additional surgery is contemplated.” In the
supplemental, amending petition, Paragraph 5 was amended to state that Mr. Carter
“is unable to squat, to dig ditches and related manual labor.”
To me, this is a significant difference that also warrants ruling against
abandonment even under that framework stated in the proposed majority opinion.
The original petition’s statement that Mr. Carter had physical limitations is very
generic, and the Rapides Parish School Board was not put on notice which physical
limitations Mr. Carter claimed were relevant as to whether he could have
performed the work allegedly assigned. The supplemental, amending petition
specifically states what Mr. Carter could not do. Thus, the supplemental,
amending petition put the Rapides Parish School Board on notice to collect
evidence relevant to Mr. Carter’s specified physical limitations. To me, this
revelation of the specific, relevant physical limitations at issue is a “step” in the
prosecution of the case not unlike answering propounded discovery.
Likewise, Paragraph 6 was amended to include the additional fact that Mr.
Campo informed his supervisor that the job required physical labor and that he felt
help would be necessary to do this job. This fact is relevant as to whether Mr.
Carter actually refused to do that job and whether it was reasonable for Mr. Carter
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to be fired after this notification. Additionally, this addition of Mr. Campo’s
supervisor in the supplemental, amended petition notified the Rapides Parish
School Board of a potential witness that was not mentioned in the original petition.
Surely being made aware of a witness hastens a suit to its end.
Given the above, I respectfully dissent.
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