Provenza v. City of Bossier City - 54002 (La. App. 2 Cir 06/30/21), 324 So. 3d 246

Rule:

La. Code Civ. Proc. Ann. art 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. To avoid a possible waiver of the right to assert abandonment, a defendant is instructed by La. Code Civ. Proc. Ann. art. 561 on the proper procedure to utilize to obtain an ex parte order of dismissal. If, despite some action by the defendant during the three-year period that arguably constitutes a waiver, the judge signs the ex parte dismissal order, the proper procedural mechanism is for the plaintiff to rule the defendant into court to show cause why the ex parte dismissal should not be vacated, alleging that the court inadvertently dismissed the suit without noticing that a party has taken a step in the prosecution or defense of the suit within the previous three years.

Facts:

The plaintiffs Salvatore Paul Provenza Sr. and Victoria C. Provenza et al., had been the owners of immovable property at 412 and 418 Traffic Street in Bossier City for 75 years. In September 2009, the defendant City of Bossier, Louisiana and Bossier Parish expropriated a portion of the plaintiffs' property in order to widen Traffic Street. While some of the plaintiffs' property was included in the expropriation, they claim that a portion was not in the parameters of the order and there were buildings on the excluded portions. One year later, plaintiffs filed suit against the defendants claiming that the demolition was ordered by one of the defendants without a judicial decree and without notice to the plaintiffs. Thus, this turned their property into non-income producing property, and that the defendants' actions constituted an illegal use of the plaintiffs' property, and these actions were part of a scheme by the defendant City to take the plaintiffs' property without due process. According to the plaintiffs, no effort was made to determine if there was anything in the buildings prior to the demolition. The plaintiffs urged that they were damaged by the loss of the contents of the structures. Defendants filed a motion to compel discovery alleging that the plaintiffs had failed to respond to interrogatories and requests for production of documents propounded to them. In August 2013, plaintiffs filed a notice of taking the deposition of defendant, together with a subpoena duces tecum to produce all records, documents, invoices, materials, contracts, change orders, or other documentation connected with the plaintiffs' property and the destruction of their buildings. The trial court rendered judgment dismissing plaintiffs’ claims on the ground of abandonment their suit against the defendants. Plaintiffs appealed.  

Issue:

Did the trial court correctly rule on dismissing plaintiffs’ claims on the ground of abandonment?

Answer:

Yes.

Conclusion:

The court held that the trial court's ruling that plaintiffs' claim was abandoned, under La. Code Civ. Proc. Ann. art. 561, was correct because the plaintiffs' filing of the motion to continue, without date, did not constitute a step in the prosecution of the case that prevented abandonment. The court ruled that the case was filed more than ten years ago, and plaintiffs failed to take any steps whatever for a three-year period to hasten the matter to judgment. Thus, the court concluded that the continuance of a case, without date, even if the motion was joint or unopposed, did not hasten the suit toward judgment. The court affirmed the judgment.