STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
NUMBER 2023 CA 0160
JANICE DICKERSON, INDIVIDUALLY AND AS PRIMARY OWNER OF JMD SERVICES, INC. VERSUS SNF HOLDING COMPANY Judgment Rendered: 

### NOV 0 9 2023

On appeal from the Eighteenth Judicial District Court In and forthe Parish of Iberville State ofLouisiana Docket Number 75,682 

### Honorable Tonya S. Lurry,Judge Presiding

Jude C. Bursavich Counsel for Defendants/Appellants 

### Jerry L. Stovall,Jr. SNF Holding Company and SNF Baton Rouge, LA Flopam Victor J. Woods, Jr. Counsel for Plaintiffs/Appellees Addis, LA Janice Dickerson and JMD Services, Inc.

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER,JJ.GUIDRY, C.J.



### Defendants appeal atrial court'sjudgmentsetting aside an orderofdismissal for abandonment. Forthe reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY 

### On February 24, 2016, Janice Dickerson, individually and as primary owner of JMD Services, Inc. (JMD), 

### filed suit against SNF Holding Company and SNF Flopam (collectively referred to as SNF), 

### alleging breach ofcontract and claiming SNF was liable for all damages suffered as a result of the breach.' Thereafter, a number of pleadings and filings appear in the record. On April 10, 2019, the trial 

### court signed a scheduling order, setting the trial date forJanuary 2020. Following, on December 19, 2019, the parties filed into the record a "joint motion to continue" the trial date. On August 11, 2022, SNF filed an ex parte motion and order of dismissal based on abandonment. 

### The order of dismissal was signed by the trial court on August 17, 2022. Thereafter, JMD filed a motion to set aside the August 17 order 

### ofdismissal, which after a hearing, the trial granted. On December 5, 2022, the 

### trial court signed a judgment vacating the order of dismissal. SNF appealed 

### contendingthe trial courterred in the following respects: 1. The [ trial] court erred when it vacated its order of dismissal for abandonment. 2. The [ trial] 

### court erred by not finding that a motion to continue, without date, is not a " step" in the prosecution of a matter that prevents abandonment. 3. The [ trial] court erred 

### by not 

### finding that negotiations or extrajudicial efforts between parties are not considered " steps" in the prosecution of a matter that prevents abandonment.

JMD' s petition was amended in August 2016. In addition, Janice Dickerson was dismissed from this suit in her individual capacity.
2DISCUSSION 

### The controlling provision in this case, La.C.C.P. art. 561,1 provides in
part: A. (1) An action ... 

### is abandoned whenthe parties fail totake any step in its prosecution or defense in the trial court for a period ofthree years ... 3) This provision shall be operative without formal order, but, on ex 

### parte motion ofany party orother interested person byaffidavit 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 ofthe date ofits abandonment. The sheriffshall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292. Louisiana Code of Civil Procedure article 561 has been construed as 

### imposing three legal requirements: ( 1) a party must take some step toward the prosecution or defense of the lawsuit; (

### 2) the step must be taken in the trial court and, with the exception offormal discovery, must appearon the record; and (3) the 

### step must betakenwithin the legislatively - prescribedtime period fromthe last step taken by eitherparty. A party takes a " step" when it takes formal action before the trial court intended to hasten the matter to judgment. Compensation Specialties, 

### LLC v. New England Mutual Life Insurance Company, 08- 1549, p. 5 ( La.App. 1st Cir. 2/ 13/09), 6 So. 3d 275, 279, writ denied, 09-0575 ( La. 4/24109), 7 So. 3d 1200. There are two jurisprudential exceptions to the abandonment rule: ( 1) a plaintiff -

oriented exception, based on contra non valentum, that applies when the 

### failure to prosecute is caused by circumstances beyond the plaintiff's control; and 2) a defense -

oriented exception, based on acknowledgement, that applies when 

### the defendant waives his rightto assert abandonment bytaking actions inconsistent with an intent to treat the case as abandoned. Clark v. State Farm Mutual 

### Automobile Insurance Company, 00-3010, p. 7 (La.5/ 15/01), 785 So. 2d 779, 784- 785. With regard to the defense -oriented exception, the conduct or actions ofthe 

### 2 Priorto itsamendmentbyLa.Acts 2023, No. 5, effectiveAugust 1, 2023, 3

### defendant which are inconsistent with the intent to treat a case as abandoned and



## which result in the waiver ofthe right to assert abandonment may occur either before or afterthe abandonment period has accrued and serves to recommence the abandonment period running anew. Hutchison v. Seariver Maritime, Inc., 09- 

### 0410, p. 7 ( La. App. 1st Cir. 9111109), 22 So. 3d 989, 994, writ denied, 09-2216 La. 12/ 18/09), 23 So. 3d 946. 

### Additionally,thejurisprudence has uniformly held that La.C.C.P. art.561 is 

### to be liberally construed in favor ofmaintaining a plaintiff's suit. Clark, 00-3010 

### at P. 8, 785 So. 2d at 785. 

### Whether or not a step in the prosecution ofa case has been taken in the trial court for a period ofthree years is a question offact subject to a manifest error analysis on appeal. On the other hand, whether a particular act, 

### ifproven, precludes abandonment is a question of law that we review by simply determining whether the trial court's decision was legally correct. Hutchison, 09- 

### 0410 atp. 4, 22 So. 3d at 992. The appellant herein, SNF, contends that this matter was abandoned with the 

### last step in the prosecution ordefense being taken on April 10, 2019,whenthetrial court signed the scheduling order setting the matter for trial. JMD, however, contends that the language inserted into the joint motion to continue, filed into the record on December 19, 2019, evidences the parties' intent not to treat this matter

as abandoned. The joint motion to continue, 

### signed by both parties, reads in pertinent part as follows: " 

### Movers respectfully request that the trial be continued 

### without date and all deadlines on the pretrial scheduling order be suspended. Parties will request a status for a new trial date ifunable to resolve matter." 

### This court has held thatajoint motion to continue, without date, is not astep in the prosecution ofa case. 

### See Hutchison, 09-0410 at p. 6, 22 So. 3d at 994. In
addition, this court has held that settlement negotiations between parties in a 

### lawsuit do not constitute a step for the purpose ofArticle 561, 

### and likewise may
4not serve as the basis ofa claim ofwaiver ofthe right to plead abandonment. See



## Porterv.Progressive SpecialtyInsurance Company,99-2542,pp.3-4 (La.App. 1st Cir. 1118100), 771 So. 2d 293, 295. Nevertheless, as a general rule, abandonment 

### is not meant to dismiss actions on mere technicalities, butto dismiss actions which 

### in fact clearly have been abandoned. Thibaut Oil Com an 

### Inc. v. Holly, 06- 

### 0313, p. 5 ( La.App. 1st Cir.2/ 14/07), 961 So. 2d 1170, 1173. For the purpose of 

## determining abandonment,the intent and substance ofa party's actions matter far
more than technical compliance. Thibaut Oil Compan,, Inc., 

### 06-0313 at p. 5, 961 So. 2d 1172- 1173. We note, as observed in Clark, that "agreeing to a trial setting" constitutes conduct sufficient to amount to a waiver of the defendant' s right to plead abandonment. 

### See Clark,00-3010 atp. 14, 785 So. 2d at789 n.15. Where thejoint motion herein not only involves a request for a continuance, but evidences an agreement between the parties to " request a status for a new trial date," we agree with the plaintiffs' contentions, and find that the defense - oriented exception to the abandonment rule applies.' 

### By virtue ofthe joint motion, both parties, 

### and more importantly the defendant SNF, agreed and indicated their intention, should this matter not resolve, to set it for a trial. The action of SNF amounted to an acknowledgment of DM's ongoing cause of action. It was inconsistent with an intent to treat this matter as abandoned— it operated as a 

### waiver to any claim that JMD abandoned this litigation, and precluded SNF from asserting the same. 

### Form does not prevail over substance in determining whether an action has been abandoned. 

### See Thibaut Oil Company, Inc., 

### 06-0313 at p. 5, 961 So. 2d 1173. Our review indicates that there was action in this matter which served to

3 By affirmative, definite, or formal action a defendant may waive his right to claim abandonment. Clark,00-3010 atp. 21, 785 So. 2d at 792.
5interrupt the abandonment period, and there was never a three-year period of



### inaction bythe parties. Therefore,we cannot saythatthis casewas abandoned. 

## Ourjurisprudence requires a liberal construction ofArticle 561 andthat any doubtastoabandonment be construed in favorofmaintaining a plaintiffs action.4 See Hutchison, 09-0410 at pp. 10-11, 22 So. 3d at 996. 

### Accordingly, where the 

### defendant took action inconsistent with an intentto treat this matter as abandoned, we conclude that such action served as both an acknowledgment and a waiver. 

### The joint motion recommenced the abandonment period running anew.' We 

### therefore find no error in thetrial court's ruling. CONCLUSION 

### Forthe above and foregoing reasons, the December 5, 2022judgment ofthe trial court granting the motion to set aside dismissal, 

### filed by plaintiffs, Janice Dickerson and JMD Services, Inc., is affirmed. All costs of this appeal are 

### assessed tothe defendants/appellants, SNF Holding Company and SNF Flopam. AFFIRMED.



### 4 We also note that the acknowledgment standard for interrupting the abandonment period is a less stringent evidentiary requirement than the renunciation ofprescription standard that would occur after the accrual of the abandonment period. Moise v. Baton Rouge General Medical Center, 22-0623, p. 6 ( La. App. 1st Cir. 4120123), 367 So. 3d 108, 113, writ denied, 23- 00718 La. 9126123), 370 So. 3d 475.
5 Consequently, December 19, 2019 is the date to begin calculating the period of inactivity for establishing abandonment.
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