The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-772
WILLIAM COURY MOSS AND
SARAH JAMES MOSS
VERSUS
SUGARLAND EXTERMINATING AND
CHEMICAL COMPANY, INC., ET AL.
**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 131066
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
**********
CANDYCE G. PERRET
JUDGE
**********
Court composed of Candyce G. Perret, Sharon Darville Wilson, and Ledricka J.
Thierry, Judges.
REVERSED AND REMANDED.
Ryan K. French
Taylor, Porter, Brooks & Phillips, LLP
Post Office Box 2471
Baton Rouge, LA 70821-2471
(225) 381-0262
COUNSEL FOR PLAINTIFFS-APPELLANTS:
William Coury Moss
Sarah James Moss
Brandon Kent Falls
Campbell Law, PC
5336 Stadium Trace Pkway, Suite 206
Birmingham, AL 35244
(205) 278-6650
COUNSEL FOR PLAINTIFFS-APPELLANTS:
William Coury Moss
Sarah James Moss
Joseph M. W. Burke
Sanchez Burke, LLC
1200 Ryan Street
Lake Charles, LA 70601
(337) 427-7715
COUNSEL FOR PLAINTIFFS-APPELLANTS:
William Coury Moss
Sarah James Moss
J. P. D’Albor, LLP
Haik, Minvielle, Grubbs & D’Albor
Post Office Box 11040
New Iberia, LA 70562-1040
(337) 365-5486
COUNSEL FOR DEFENDANTS-APPELLEES:
Sugarland Exterminating and Chemical Company, Inc.
Carroll L. Sellers
Kevin Sellers
Reid Sellers
PERRET, Judge.
This case arises from an action involving a termite abatement services
contract and subsequent termite damages suffered by Plaintiffs-Appellants,
William Coury Moss and Sarah Moss. Plaintiffs filed suit on October 27, 2017.
On March 8, 2023, Defendants-Appellees, Sugarland Exterminating and Chemical
Company, Inc., (“Sugarland”) Carroll L. Sellers, Kevin Sellers, and Reid Sellers,
averred that Plaintiffs had not taken any steps in the prosecution of the suit since
October 1, 2019, or February 17, 2020. The trial court agreed, and signed a March
8, 2023 Order of Abandonment. Plaintiffs filed a Motion to Set Aside Order of
Dismissal. The trial court signed an August 2, 2023 Judgment, which denied
Plaintiffs’ motion and confirmed the March 8, 20231 Order of Abandonment. The
August Judgment listed as Defendants “Sugarland Exterminating” only but
confirmed the Order of Abandonment, which dismissed claims as to all Defendants.
The August Judgment then dismissed Plaintiffs’ claims with prejudice. Plaintiffs
now appeal.
For the following reasons, we reverse the Judgment confirming the Order of
Abandonment and dismissing Plaintiffs’ claims and remand to the trial court for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiffs purchased a home in 2011 that was under contract for termite
treatment with Sugarland Exterminating and Chemical Company, Inc. Sugarland
initially treated the home for termites in 1986 or 1987, for a prior owner, and
continued to reinspect and treat the home annually. In 2017, Plaintiffs discovered
1
The August Judgment incorrectly lists the date for the Order as March 28, 2023. The
Order was actually signed March 8, 2023.
a Formosan termite infestation. Thereafter, Plaintiffs filed this suit on October 27,
2017, alleging that the infestation was due to multiple failures of Sugarland’s
treatment of the property, failure to warn, and failure to notice that damage in
2013–2014 was active.
Several filings occurred in the record thereafter, but on March 8, 2023,
Defendants filed an Ex Parte Motion for Abandonment pursuant to La.Code Civ.P.
art. 561, asserting that Plaintiffs failed to take a step in the prosecution of their suit
for a period of three years. The motion included the affidavit of Defendants’
counsel, J. P. D’Albor, attesting that “[t]here have been no steps taken in the
prosecution or defense of the original action . . . for more than three (3) years
before the date of this Affidavit.” Specifically, Defendants assert that, aside from
motions to enroll counsel, the last step taken by a party involved in this case
occurred on October 1, 2019, when the parties took the deposition of Coury Moss.
Alternatively, Defendants suggest that the only other possible step by a party
occurred on February 17, 2020, when Plaintiffs produced their Expert Witness
Disclosures, which were not filed into the court’s record, and Defendants dispute
that this action constituted a step.
On that same day, March 8, 2023, after considering the Ex Parte Motion for
Abandonment, the trial court signed an Order dismissing Plaintiffs’ action against
Sugarland, Carroll L. Sellers, Kevin Sellers, and Reid Sellers. The Order states
that the action is “hereby dismissed as of the date of its abandonment, October 1,
2022, or alternatively on February 17, 2023.”
On March 22, 2023, Plaintiffs filed a Motion to Set Jury Trial Date. Despite
the Order granting abandonment and dismissal of the suit, the trial court set the
2
case for jury trial, and Defendants then filed a Motion to Quash. The Motion to
Quash was denied but set for a hearing on May 19, 2023.
Thereafter, on April 6, 2023, Plaintiffs filed a Motion to Set Aside Order of
Dismissal and memorandum in support. Plaintiffs assert that steps were taken
regarding discovery within the three years preceding Defendants’ Ex Parte Motion
for Abandonment. Plaintiffs allege that on August 9, 2020, they sent written
communication in follow up to two previous requests dated April 2, 2020, and
February 17, 2020, to request that Defendants correct discovery deficiencies.
Alternatively, Plaintiffs assert that the presumption of abandonment is rebuttable
and should be interpreted liberally in favor of maintaining actions and that, in that
regard, Plaintiffs have clearly demonstrated that they did not intend to abandon the
action. Plaintiffs cite two exceptions to the abandonment presumption: the first is
based on contra non valentem, which applies when circumstances beyond the
parties’ control prevent them from prosecuting a claim; and the second is when the
defendant effectively waives his right to abandonment. Plaintiffs assert that both
exceptions have occurred in this case. First, they assert that the COVID-19
pandemic prevented further steps from being taken in the case because the court
was closed to civil jury trials from March 16, 2020, through April 1, 2021. Second,
Plaintiffs assert that, following an e-mail regarding mediation on August 22, 2022,
Defendants “lulled” Plaintiffs into believing the case would be mediated, then
turned around and filed the Ex Parte Motion for Abandonment.
The Motion to Set Aside was heard on May 19, 2023, and evidence was
admitted.2 The trial court issued Reasons for Judgment on June 15, 2023. In its
2
The August Judgment states that the hearing occurred on May 18, 2023, but the
transcript and minutes give the hearing date as May 19, 2023.
3
Reasons for Judgment, the trial court dismissed Plaintiffs’ arguments in support of
setting aside the order of dismissal. First, the trial court noted that while letters
scheduling a Louisiana District Court Rule 10.1 conference have been deemed a
step by the supreme court, the e-mails in this case did not schedule or attempt to
schedule a Rule 10.1 conference; thus, they do not meet the criteria of a step
hastening a matter towards judgment. Second, the trial court disagrees that
“informal e-mails discussing settlement negotiations” amount to a step in the
proceedings. And third, the trial court found that the COVID-19 suspensions as to
abandonment “only applied to matters that would have prescribed during the court
shutdowns. This matter was not at risk of abandonment . . . at that time and does
not benefit from those provisions.” Thus, on August 2, 2023, the trial court signed
the Judgment, which denied Plaintiffs’ Motion to Set Aside Order of Dismissal,
confirmed the March 2023 Order of Abandonment, and dismissed Plaintiffs’
claims with prejudice.
Plaintiffs filed a Petition for Order of Devolutive Appeal and Designation of
Record on July 7, 2023, and assert two assignments of error on appeal: “(1) The
trial court legally erred by holding that the Plaintiff-Appellants had abandoned
their claims under [La.] Code of Civil Procedure article 561; (2) Alternatively, the
trial court legally erred by dismissing the Plaintiff-Appellants’ claims with
prejudice.”
DISCUSSION:
This court has previously explained the standard of review for abandonment
actions in Margaret Fisk Munro v. British Am. Oil Producing Co., 16-1057, pp. 5–
6 (La.App. 3 Cir. 11/8/17), 235 So.3d 1162, 1167 as follows:
4
On review, we are mindful that La.Code Civ.P. art. 561 “is to
be liberally construed in favor of maintaining a plaintiff’s suit.” Clark
[v. State Farm Mut. Auto. Inc. Co., 00-3010, p. 8 (La. 5/15/01)], 785
So.2d [779] at 785. Additionally, an appellate court considers a trial
court’s findings of fact as to whether a step in the prosecution or
defense of a case has been taken pursuant to the manifest error
standard. Gueldner v. Allstate Ins. Co., 09-720 (La.App. 3 Cir.
2/10/10), 30 So.3d 1143. However, the question of whether a
particular, proven fact precludes abandonment is a question of law
that is reviewed by considering whether the trial court’s decision was
legally correct. Id.
We also acknowledge that “abandonment balances two competing policy
considerations—the concern about litigants having their day in court and a concern
over indefinitely-lingering actions[.]” Gravlee v. Gravlee, 11-509, p. 4 (La.App. 3
Cir. 12/7/11), 79 So.3d 1169, 1173. These competing policy considerations result
in “inconsistent” jurisprudence where “no bright lines exist.” Clark, 785 So.2d at
787, quoting 1 Judge Steven R. Plotkin, West Practice Group: Louisiana Civil
Procedure 359 (2001). “[B]ecause the requirements of formality and appearance
on the record are intended to ensure notice to the defendant, when it is the
defendant who is taking the action, the purpose of these requirements is not present,
and the evidence outside the record can be considered.” Gravlee, 79 So.3d at 1173.
Did Plaintiffs abandon their claim?
The version of La.Code Civ.P. art. 561 governing abandonment that was
effective at the time of these proceedings stated:3
A. (1) 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, unless it is a succession proceeding[.] . . .
....
(3) This provision shall be operative without formal order, but,
on ex parte motion of any party or other interested person by affidavit
3
A new version of La.Code Civ.P. art. 561 took effect on August 1, 2023. Only minor
changes to the quoted portions herein were made.
5
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. . . .
....
B. Any formal discovery as authorized by this Code and served
on all parties whether or not filed of record, 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.
The supreme court in Clark, 785 So.2d at 784 (footnotes omitted), explained
the requirements set forth by La.Code Civ.P. art. 561 as follows:
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.
The Clark court also noted two exceptions to the rule, permitting two
categories of causes outside of the record to be considered in determining whether
a case has been abandoned:
Those two exceptions are: (1) a plaintiff-oriented exception, based on
contra non valentem, that applies when failure to prosecute is caused
by circumstances beyond the plaintiff’s control; and (2) a defense-
oriented exception, based on acknowledgment, that applies when the
defendant waives his right to assert abandonment by taking actions
inconsistent with an intent to treat the case as abandoned.
Id. at 784–85. Lastly, the court reiterated that the purpose of abandonment is not
to “dismiss actions on mere technicalities, but to dismiss actions which in fact
clearly have been abandoned.” Id. at 786. Thus, the jurisprudence construes
La.Code Civ.P. art. 561 liberally and resolves “any reasonable doubt about
abandonment . . . in favor of allowing the prosecution of the claim[.]” La. Dep’t of
6
Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-912, p. 5 (La. 12/6/11), 79
So.3d 978, 982.
As they did in the trial court, Plaintiffs assert on appeal that certain actions
undertaken by them amount to a showing that their claim has not been clearly
abandoned, especially in light of the principle that La.Code Civ.P. art. 561 be given
a liberal interpretation in favor of preserving the claim.
Plaintiffs assert that “formal correspondence on April 2, 2020, (and on
August 9, 2020[,])” equates to written discovery and, thus, a step in the prosecution
of their case. Plaintiffs argue: “[u]nlike ‘informal’ e-mails checking on the status
of discovery, the 2020 letter formally addresses Sugarland’s discovery objections
with respect to nine specified interrogatories and request for production” and “re-
states” one request for production.
In Oilfield Heavy Haulers, L.L.C., 79 So.2d 973, the supreme court analyzed
a letter scheduling a Rule 10.1 conference regarding discovery under La.Code
Civ.P. art. 561(A), because it was not “formal” discovery as discussed in
subsection B. The supreme court ultimately concluded that a letter scheduling a
Rule 10.1 conference is a step in the prosecution of the case, reasoning that “a Rule
10.1 conference is a prerequisite to filing a motion to compel discovery or other
discovery motion” and “as a practical matter, . . . serves as a step . . . as it is an
essential component of a motion to compel.” Id. at 984. However, the court
continued to note that “informal correspondence between parties regarding
discovery matters is not a step sufficient to interrupt abandonment” and “‘simply
attempting to schedule’ a discovery matter, such as depositions, through informal
correspondence is not a step[.]” Id. 982–83. Instead, the court distinguished the
Rule 10.1. letter because it is “specifically required by the District Court before a
7
party could take a step in the prosecution of the action” and to do otherwise
“ignores the mandatory nature of Rule 10.1.” Id. at 984.
The letter involved herein is dated February 17, 2020, and does not make
any attempt to set forth a Rule 10.1 conference. Furthermore, the two follow-up e-
mails, dated April 2, 2020, and August 9, 2020, also do not equate to a Rule 10.1
letter. However, Plaintiffs maintain that these letters and e-mails amount to formal
discovery. Louisiana Code of Civil Procedure Article 561(B) states that “formal
discovery . . . served on all parties whether or not filed of record . . . shall be
deemed to be a step in the prosecution or defense of an action.”
The February 17, 2020 letter and follow-up e-mails all noted deficiencies in
prior discovery responses. The discovery responses deemed deficient were
allegedly answered in 2018. However, Plaintiffs allege that letter re-states a
production request. Specifically:
RFP #18- Per the request of Sugarland in its response to this
RFP, the plaintiffs re-state the requests, as follows: Please produce all
DOCUMENTS in its possession that set out company policies,
guidelines, directions, and instructions to its employees on the proper
method of conducting a thorough annual inspection of properties it
has under contract.
In Charpentier v. Goudeau, 95-2357, p. 2 (La.App. 4 Cir. 3/14/96), 671
So.2d 981, 982, the defendant asserted that a “duplicate” interrogatory sent in a
subsequent discovery request could not be considered a step preventing
abandonment. The fourth circuit noted that the plaintiffs “reiterated” the request
due to defendant’s prior “evasive” answer. Id. The fourth circuit then found no
merit to the defendant’s argument in light of “the principle that art. 561 is to be
given a liberal interpretation in favor of any action or step taken by plaintiff to
move his case forward.” Id. at 982–83.
8
The record herein does not include the original Request for Production to
determine whether the re-stated request seeks new information. However, keeping
in mind the intent to allow cases to proceed, we find that the above is enough to
conclude that the request was in fact re-stated to seek new or amended information.
Our inquiry does not end here, however, as formal discovery not filed into
the record must be served on all parties to prevent abandonment. La.Code Civ.P.
art. 561(B). Service of discovery is governed by La.Code Civ.P. art. 1474, which
provides in pertinent part:
A. Except as otherwise provided by Article 1430, all of the
objections, notices, requests, affidavits, interrogatories, and answers to
interrogatories, required by any Article in this Chapter to be in writing
and served on an adverse party, may be served as provided in Article
1313.
....
[C.](4) The serving of any discovery materials pursuant to the
provisions of this Article shall be considered a step in the prosecution
or defense of an action for purposes of Article 561, notwithstanding
that such discovery materials are not filed in the record of the
proceedings.
Relevant herein, La.Code Civ.P. art. 1313 provides, in pertinent part:
A. Except as otherwise provided by law, every pleading
subsequent to the original petition, and every pleading which under an
express provision of law may be served as provided in this Article,
may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or if there is
no counsel of record, to the adverse party at his last known address,
this service being complete upon mailing.
(2) Delivering a copy thereof to the counsel of record, or if
there is no counsel of record, to the adverse party.
(3) Delivering a copy thereof to the clerk of court, if there is no
counsel of record and the address of the adverse party is not known.
(4) Transmitting a copy by electronic means to counsel of
record, or if there is no counsel of record, to the adverse party, at the
9
number or addresses expressly designated in a pleading or other
writing for receipt of electronic service. Service by electronic means
is complete upon transmission but is not effective and shall not be
certified if the serving party learns the transmission did not reach the
party to be served.
B. When service is made by mail, delivery, or electronic means,
the party or counsel making the service shall file in the record a
certificate of the manner in which service was made.
Reviewing the record, we note that there is no certificate of service in the
record. In support of their argument, Plaintiffs cite Fowler v. McKeever, 52,754
(La.App. 2 Cir. 6/26/19), 277 So.3d 1238. In Fowler, the plaintiff mailed
supplemental discovery responses to the defendant in response to a request by the
defendant but did not file a certificate of service in the record. However, the
receipt of the supplemental discovery was not disputed. The second circuit first
determined that the supplemental discovery response was formal discovery. Then,
the court considered the defendants’ assertion that a certificate of service in the
record was required. The court, citing Breaux v. Auto Zone, Inc., 00-1534 (La.App.
1 Cir. 12/15/00), 787 So.2d 322, writ denied, 01-172 (La. 3/16/01), 787 So.2d 316,
concluded that the defendants
admitted receipt of [the] [p]laintiff’s attorney’s letter and medical
release form. Citing prior jurisprudence, the First Circuit [in Breaux]
found that, under those circumstances, the plaintiffs’ counsel’s failure
to file a certificate of service in the record notwithstanding, the letter,
once mailed pursuant to La. C.C.P. art. 1313, constituted service
authorized by law and therefore was sufficient to interrupt the
abandonment period.
Fowler, 277 So.3d at 1243(footnote omitted).
In Charpentier, 671 So.2d at 982, the court considered “whether the mailing
of a discovery interrogatory by plaintiffs to defendant constitutes a step in the
prosecution of the case so as to preclude dismissal for abandonment[.]” The
defendant argued that although the interrogatory was mailed, the plaintiffs failed to
10
file a certificate of service in the record as required by La.Code Civ.P. art. 1313.
The fourth circuit found this argument meritless:
[O]nce the interrogatory was mailed as authorized by the article,
authorized service of the interrogatory occurred and a step in the
prosecution was taken. The article does not prescribe any time limit
for the filing of the certificate in the record[,] and it does not provide
that service by mail would somehow lose its effectiveness at some
point in time if the certificate is not filed.
Id. There is no information in the Charpentier opinion regarding whether a
certificate of service was eventually filed in the record or whether the defendant
received the discovery. The language appears to infer that the Charpentier
defendant did not contest that the discovery was mailed to him: “Defendant first
argues that this case is an exception because plaintiffs mailed the interrogatory to
him, but failed to file in the record a certificate that they mailed the interrogatory as
required[.]” Id. (emphasis added).
Defendant notes the importance of notice regarding discovery and
abandonment in citing Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir. 9/17/04),
897 So.2d 19, writ denied, 04-2524 (La. 12/17/04), 888 So.2d 870. Therein, the
court concluded that requests for production sent to a non-party, without service on
all defendants, did not constitute a step which would prevent abandonment.
Specifically, the court stated:
According to the plain language of La. C.C.P. art. 1463,
requests for production of documents may be directed to non-parties.
However, the exception to the formal action requirement, found in La.
C.C.P. art. 561(B), only applies to formal discovery that is authorized
by the Code and served on all parties. See Clark, 00-3010, p. 6 n. 6,
785 So.2d at 784 n. 6. This requirement of service is in keeping with
the concept of notice, which the supreme court recently addressed as
follows: The rule requiring a party’s action to be on the record is
designed to protect a defendant. The rule is intended to ensure notice
to the defendant of actions taken that interrupt abandonment. Clark,
00–3010, at p. 17, 785 So.2d at 790. Otherwise, actions interrupting
abandonment could occur without opposing parties formally learning
11
of them for months or years, to their possible prejudice. Clark, 00–
3010 at p. 17, 785 So.2d at 790.
Therefore, we find that in order for request for production of
documents to a non-party to be considered a step in the prosecution of
a case, it must be served on all parties. In the instant action, plaintiff
did not serve Dr. Falgoust with notice as required by La. C.C.P. art.
561(B) and did not file his requests for production of documents to
non-parties into the record of the suit. Therefore, we find that plaintiff
failed to establish that his requests for production of documents
directed to non-parties qualified as steps in the prosecution of his suit.
Id. at 23.
In this case, Defendants do not admit that the February 17, 2020 letter was
ever received; however, Defendants also do not deny receiving the April 2, 2020 e-
mail referencing the letter or the August 9, 2020 e-mail with the letter as an
attachment. The April 2, 2020 e-mail stated: “I did want to bring to your attention
that my fellow counsel Brandon Falls sent J.P. D’Albor of your firm the attached
letter on February 17th regarding several deficiencies which we feel exist with
respect to your client’s discovery responses in this case.” According to the e-mail
in the record, there was no attachment included. The August 9, 2020 e-mail
referencing the February 17, 2020 letter did include an attachment to the e-mail.
This e-mail states: “Please see my e-mail below which I sent back on April 2nd
along with the attached letter from Brandon Falls of my firm dated Feb. 17 th in
which I raise several deficiencies in your clients’ discovery responses.” Thus,
while we agree with the trial court that the e-mail itself is not sufficient as formal
discovery, this e-mail does send the February 17th letter to Defendants.
Electronic service is permissible, and, according to La.Code Civ.P. art.
1313(A)(4), “[t]ransmitting a copy by electronic means to counsel of record . . . at
the number or addresses expressly designated in a pleading or other writing for
receipt of electronic service” is considered “service” and “is complete upon
12
transmission[.]” As noted by the fourth circuit, La.Code Civ.P. art. 1313(A)(4)
“does not define or give illustrative examples as to what constitute an ‘other
writing’ for purposes of designating an e-mail address” and there is an “absence of
jurisprudence on the definition.” W.L. Wyman Constr. Co., Inc. v. Sewerage &
Water Bd. of New Orleans, 22-175, p. 9 (La.App. 4 Cir. 9/30/22), 350 So.3d 927,
932, writ denied, 22-1618 (La. 1/11/23), 352 So.3d 988.
In W.L. Wyman Constr. Co., Inc., the court found that, despite never
“expressly designating his e-mail address on any pleading[,]” the defense counsel
did accept e-mail service of discovery and deposition notices and “utilized his e-
mail address to respond on behalf of S&WB to [the plaintiff’s] discovery.” Id. at
931–33. Ultimately, this conclusion led to the court reversing a dismissal of the
case based on abandonment, finding that an e-mailed re-notice of deposition was
properly served and was a step in the prosecution of the case.
The record does not contain a specific designation of an e-mail address but
does include e-mail communications between the parties. There exist several e-
mails between defense counsel’s legal assistant and Plaintiffs’ counsel and legal
assistant in March of 2020, involving the topic of available dates for depositions.
The record also contains two e-mails also exist in the record from Defendants’
counsel to Plaintiffs’ counsel, with the subject line referencing the Simoneaux case
that was mediated between the two. One e-mail, dated August 22, 2022, was in
response to Plaintiffs’ counsel’s inquiry into mediation and stated: “The carrier
was previously interested in mediation. I can confirm[,] and we can get something
on the books[.]”
Based on the above facts in this case, we conclude that the August 9, 2020 e-
mail sending the re-stated request for production was discovery sufficient to
13
constitute a step in the prosecution of this case and that the trial court erred in
finding that this e-mail was not a step preventing abandonment. Furthermore, the
sending of this discovery in conjunction with Plaintiffs’ continued attempts to
mediate the case, as discussed below, supports our finding that neither party
anticipated that this case would be abandoned.
Counsel for both parties were clearly engaged in at least two, possibly three,
cases litigating matters against these Defendants. One matter, the Simoneaux
matter, was mediated and settled first. Thereafter, Plaintiffs’ counsel attempted to
move on to the Moss matter. Regarding potential mediation, Plaintiffs’ counsel
asked Defendants whether they were still interested in mediation. While no
mediation was ever scheduled, the correspondence on August 22, 2022, does
demonstrate that Defendants were previously interested in mediation and that
counsel would inquire whether that remained the case.
We are cognizant that our jurisprudence has stated that informal settlement
negotiations are insufficient to interrupt abandonment of actions or waive a party’s
right to assert abandonment. See Clark, 785 So.2d 779 (distinguishing
unconditional tenders from informal settlement negotiations); Johnston v. CLD,
Inc., 54,749 (La.App. 2 Cir. 10/12/22)] 349 So.3d 720; In re Succession of Wright,
37,670 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, writ denied, 03-2969 (La.
1/16/04), 864 So.2d 632. However, in this case, with the discovery sent on August
9, 2020, and the discussion of the Moss case occurring in e-mails related to the
Simoneaux matter, which was mediated first, we find that the policy consideration
of Plaintiffs having their day in court outweighs a concern over “indefinitely-
lingering actions[.]” Gravlee, 79 So.3d at 1173. We further reiterate that the
14
purpose of abandonment is not to “dismiss actions on mere technicalities, but to
dismiss actions which in fact clearly have been abandoned.” Clark, 785 at 786.
Considering the above, we find that the trial court erred in dismissing this
case as abandoned. Such a finding precludes our need to address Plaintiffs’
alternative assignment of error.
DECREE:
For the foregoing reasons, we reverse the Judgment confirming the Order of
Abandonment and dismissing the claims of William Coury Moss and Sarah James
Moss and remand to the trial court for further proceedings. Costs of this appeal are
assessed to the Defendants-Appellees, Sugarland Exterminating and Chemical
Company, Inc., Carroll L. Sellers, Kevin Sellers, and Reid Sellers.
REVERSED AND REMANDED.
15