Abandonment: An Evolving Concept of Liberative Prescription

AuthorDeborah J. Juneau; Gayla M. Moncla
PositionJ.D. at Paul M. Hebert Law Center; J.D. at Paul M. Hebert Law Center

Page 341

Ms. Juneau received her J.D. at Paul M. Hebert Law Center in 1999. She is an associate at the law firm of Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, L.L.P., in Baton Rouge, Louisiana and practices in general litigation.

Ms. Moncla received her J.D. at Paul M. Hebert Law Center in 1989. She is a partner at the law firm of Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, L.L.P., in Baton Rouge, Louisiana and practices in general litigation.

Page 342

I Introduction

The notion of liberative prescription was developed to prevent a plaintiff from bringing suit years after the accrual of his cause of action for damages, when evidence was likely to have been lost and witnesses likely to have disappeared, making it difficult or impossible to defend against the suit. To prevent this occurrence, time limits were set within which a plaintiff was required to file suit in a court of competent jurisdiction. Failure to do so resulted in the prescription of the plaintiff's cause of action. However, once a plaintiff filed suit, he was not required to prosecute his suit to judgment, thus making suits imprescriptable. Therefore, the notion of abandonment of actions was developed to prevent plaintiffs from filing suit and then leaving the suit to languish indefinitely over the defendants' heads.

The principle of abandonment was conceived as a form of liberative prescription. Originally, a plaintiff was penalized only for failing to timely file suit by the threat of liberative prescription. Later, he was also penalized for failing to timely prosecute his suit to judgment once it had been filed by the threat of abandonment. Like the doctrine of liberative prescription, the doctrine of abandonment has given rise to its fair share of litigation and the creation of parallel jurisprudential exceptions.

Throughout its history, the doctrine of abandonment has evolved and grown. Abandonment initially applied to plaintiffs but has been expanded to apply to all parties. Its time period has been shortened from five to three years. The doctrine has also developed into a fairly complex set of rules and requirements; as a result, abandonment is truly an evolving concept of liberative prescription.

II History Of The Doctrine Of Abandonment
A Louisiana Civil Code Roots

Modern Louisiana Code of Civil Procedure article 561 finds its roots in the Louisiana Civil Code of 1870, within the articles on liberative prescription. In 1870, it was "an established rule that the mere filing of suit placed an action within the hallowed realm of imprescriptability."1 Former Louisiana Civil Code article 3519 (1870) was drafted to limit the effect of Article 3518, which provided for the interruption of prescription by the filing of suit.

Article 3519 (1870) stated: "If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption Page 343 shall be considered as never having happened."2 The article's purpose was to nullify the effect of Article 3518 when the plaintiff voluntarily abandoned his suit; thus, interruption of prescription was considered never to have occurred. However, even with article 3519 in place, the plaintiff was under no duty to prosecute his case once it had been filed, subjecting the defendant to harassment by a suit which would not otherwise prescribe or be prosecuted to judgment.3

Article 3519 was amended in 1898 to include a second paragraph:4

Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.5

This provision was added to end the unfairness defendants faced by having a suit pending indefinitely against them when plaintiffs failed to prosecute.

The abandonment article is a species of liberative prescription. However, abandonment is separate and distinct from the prescription of the substantive claim itself.6 Prescription of a claim differs from prescription of the suit based on abandonment. Additionally, the means by which the prescriptive periods may be interrupted are also different. The prescriptive period for a claim begins to run from the time the action accrues and is interrupted by the filing of suit in a court of competent jurisdiction. The abandonment period begins to run from the time suit is filed and is interrupted each time a party takes a formal step toward the prosecution or defense of his case within the abandonment period, from the last step taken by any party.7

If the plaintiff abandons his suit, the interruption of prescription is considered never to have occurred, and the effect is to put the plaintiff in the same position he would be in had he never filed suit.8 Page 344 Therefore, where a suit has abandoned for failure to prosecute, a separate determination of whether the substantive claim has also prescribed must be made.9 It is possible that a suit may have abandoned and, yet, the substantive claim has not prescribed, especially where the prescriptive period for the cause of action is greater than the abandonment period.

The Louisiana Supreme Court held that the 1898 amendment to Article 3519 provided a method of abandonment of a suit by failure to prosecute for five years.10 Although the language of the amended article did not set forth the legal effects of abandonment for failure to prosecute, the courts construed the amendment as adopting the provisions in the first paragraph. Thus, abandonment for failure to prosecute had the same effect on prescription as voluntary dismissal -it was as if the interruption of prescription had never occurred.11

In Reagan v. Louisiana Western Railroad,12 the Louisiana Supreme Court held that Article 3519 did not apply to appeals, attempting to limit the application of Article 3519 to suits in the courts of original jurisdiction.13 The attempt proved to be unsuccessful, since the appeal was filed by the defendant and Article 3519 applied only to plaintiffs.14 In subsequent cases where the plaintiff filed the appeal, courts did not feel constrained to follow Reagan and dismissed appeals under Article 3519.15 Finally, in 1932, the issue was settled when the Louisiana Supreme Court, in Verrett v. Savoie, held that Article 3519 did not apply to cases pending on appeal.16

The application of the abandonment article to a case involving an appeal was again questioned in a recent case. In James v. Formosa Plastics Corporation of Louisiana, the Louisiana Supreme Court addressed whether an action against one defendant remaining in the trial court could abandon while the judgment dismissing the plaintiff's action against another defendant was pending on appeal.17 Page 345 The court held that the plaintiff's suit against the defendant, who remained subject to the trial court's jurisdiction, could abandon.18

Article 3519 applied only to plaintiffs. As noted by one court:

It will be observed that this language [in Civil Code Article 3519] plainly provides that only the plaintiff shall be considered as having abandoned the case . . . . The evident purpose and intention of the Legislature was to penalize a plaintiff in a suit for failure to take any steps in the prosecution of it for a period of five years. The law does not place any penalty upon any other party litigant except the plaintiff.19

The defendant's filing an answer could not be deemed a step in the prosecution of the action by the plaintiff to prevent abandonment.20Yet, in another Louisiana Supreme Court case, the court held that the defendant's filing of an answer in a case "ripe for default" to prevent the default under a stress of necessity created by the plaintiff was a step taken by the plaintiff to prevent dismissal for abandonment.21The plaintiffs thereafter moved to set the case for trial.22

Article 3519's application only to plaintiffs-and not to defendants-gave rise to litigation over which party was the plaintiff.23 For example, a defendant-in-reconvention did not become a plaintiff for purposes of Article 3519.24 However, when Article 3519 was transferred to the Louisiana Code of Civil Procedure in 1960, the application of the article was broadened to include defendants.

Much of the litigation involving Article 3519 concerned a determination of what constituted an action sufficient to avoid abandonment.25 The requirement that the plaintiff take a formal step in the trial court gave effect to the legislative intent that there be certainty in determining when a suit had abandoned.26 Article 3519 Page 346 required "some active measure taken by plaintiff, intended and calculated to hasten the suit to judgment."27 Neither an opposing defendant's motion to dismiss nor the filing a supplemental petition to substitute another party for the plaintiff was sufficient to avoid abandonment.28 Additionally, a motion to withdraw the record was for the convenience of counsel and not a step in prosecuting the case and was not sufficient to prevent abandonment.29 Conferences between counsel were not formal steps taken in the court and would not prevent abandonment.30 An action taken by a non-party did not save a suit from abandonment.31 Likewise, the issuance of...

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