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Gallagher v. Cook12/15/2000
period, we find that the parties' attempt to schedule mediation in this case neither serves to interrupt the tolling of the abandonment period nor relieves Gallagher of his obligation to take a step, on the record, to hasten the matter to judgment.
Finally, Gallagher urges that defendants' request that he participate in alternative dispute resolution operated as a waiver of their rights to assert abandonment. In Chevron, supra, defendants were held to have waived abandonment when it filed a motion for summary judgment after the five-year period had accrued but before it moved for dismissal on abandonment grounds under La. C.C.P. art. 561. It is the qualitative effect of the steps taken by defendant which must be considered in a case-to-case approach to determine whether the defendant has waived abandonment. Middleton v. Middleton, 526 So.2d 859 (La. App. 2d Cir. 1988). Steps which have facilitated judicial resolution of the dispute on the merits and which could be construed as an expression of defendant's willingness or consent to achieve judicial resolution of the dispute are legally operative to preclude him from raising the claim of abandonment. Id. Under this criterion, defendants' request that Gallagher agree to mediation is not tantamount to any expression of willingness or consent to achieve judicial resolution of the dispute. Thus, we find that no waiver by defendants of the abandonment period.
Conclusion
For the foregoing reasons, the judgment of the trial court dismissing Gallagher's lawsuit, is affirmed. Costs of these proceedings are assessed against appellant.
AFFIRMED.
Norris, C.J., concurs.
The case of Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983), on which the majority relies, has been legislatively superseded by the 1997 amendment to La. C.C.P. art. 561. This article now provides that discovery, whether or not filed of record, constitutes a step in the prosecution. See, e.g., Brister v. Manville Forest Products, 32,386 (La. App. 2 Cir. 12/15/99), 749 So.2d 881. The instant case does not involve discovery, but poses the equally close question of whether pursuing ADR tends to "hasten the matter to judgment." On the basis of Lizama v. Williams, 99-1040 (La. App. 5 Cir. 3/22/00), 759 So.2d 865, I respectfully concur.
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