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Gallagher v. Cook12/15/2000
NORRIS, C.J., concurs with written reasons.
Plaintiff appeals a judgment of dismissal of his suit for abandonment, claiming that the defendants' participation in negotiations for mediation of the suit constituted a "step" in the litigation proceedings or a waiver. Finding that no formal step or waiver occurred, we affirm the trial court's ruling.
Facts
Patrick T. Gallagher, M.D. ("Gallagher") filed suit on May 10, 1991, alleging that he suffered harm from the collective negligent conduct of defendants, Douglas Cook, M.D. ("Cook"), Clyde Elliott, M.D. ("Elliott"), Van Taliaferro, M.D. ("Taliaferro"), and the Louisiana State Medical Society ("LSMS"). Gallagher allegedly consented to inpatient treatment as part of the Impaired Physicians Program, operated under the auspices of LSMS. Drs. Cook, Elliott and Taliaferro, acting on behalf of the LSMS's Impaired Physicians Program, allegedly induced Gallagher's consent to his admission for inpatient treatment.
On July 2, 1991, defendants filed a dilatory exception of prematurity based on defendants' status as qualified healthcare providers. Defendants reasoned that plaintiff had asserted a potential medical malpractice claim, requiring a medical review panel to be convened. A hearing on this exception was never held. Subsequently, when plaintiff moved for trial on the merits in November, 1996, the trial court denied his motion based upon the exception never having been disposed of. Plaintiff noticed various depositions during each of four successive months from April through July, 1996.
On January 27, 1999, defendants' counsel filed a motion to enroll. On January 14, 2000, defendants moved for dismissal based on abandonment under La. C.C.P. art. 561. An ex parte order of dismissal was signed that same day. On February 10, 2000, Gallagher filed a motion to vacate and set aside the trial court's judgment of dismissal. The supporting memorandum described what ongoing activities, allegedly sufficient to prevent abandonment, had occurred. These activities largely consisted of various correspondence concerning proposed mediation. Included among such correspondence was a transmittal letter to the Clerk of Court dated February 9, 1999, allegedly forwarding a second motion for trial. Gallagher's counsel was not present at the hearing on the motion to vacate. On March 22, 2000, the trial court denied the motion.
Discussion
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. La. C.C.P. art. 561. The rule implicates two competing policies. The prevention of protracted litigation, filed for purposes of harassment or without serious intent to hasten the claim to judgment, is balanced against the maintenance of an action whenever possible so as to afford an aggrieved party his day in court. Brister v. Manville Forest Products, 32,386 (La. App. 2d Cir. 12/15/99), 749 So.2d 881.
In keeping with the self-operative effect of the abandonment provision, our supreme court has said that formal action "before the court and on the record" is necessary for a "step" in the prosecution. Chevron v. Traigle, 436 So.2d 530, 532 (La. 1983). "In this way, examination of the record will reveal the status of litigation with certainty and without resort to extrinsic evidence." Id.
The three-year period designated by the legislature balances plaintiff's right to have his day in court as well as the right of the defendant to adequately defend himself. Willey v. Roberts, 95-1037 (La. App. 1st Cir. 12/15/95), 664 So.2d 1371. Article 561 prescribes a method of enforcing a substantive right and is therefo
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