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Woodward v. Lumbermens Mutual Casualty Co.3/28/2001
This is an appeal from a trial court judgment granting defendant's motion to dismiss plaintiff's suit on grounds of abandonment pursuant to LSA-C.C.P. art. 561.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff, Billy C. Woodward, filed a personal injury lawsuit on September 14, 1994, seeking damages arising out of an automobile accident. He named as defendants Lumbermens Mutual Casualty Insurance Company (Lumbermens), Fifth Third Leasing Co. and Richard S. Cooper. Lumbermens answered the petition on February 8, 1995.
At the time the lawsuit was filed, LSA-C.C.P. art. 561 provided for dismissal of actions on the basis of abandonment where the parties failed to take a step in its prosecution or defense in the trial court for a period of five years. In 1997, by Acts 1221, the legislature shortened the time period provided for in LSA-C.C.P. art. 561 from five to three years.
On July 9, 1998, Lumbermens filed a motion and order to dismiss the action on grounds of abandonment pursuant to LSA-C.C.P. art. 561. With the motion and order, Lumbermens submitted the affidavit of its counsel of record wherein he attests that no discovery has taken place in excess of three years. The trial judge signed the order dismissing plaintiff's suit with prejudice. Thereafter, plaintiff filed a motion to set aside the dismissal, which the trial court granted after a contradictory hearing held January 25, 1999. In the written judgment dated February 2, 1999, the trial court states, " uits pending on July 1, 1998, are entitled to three years from the effective date of the statute or the original five years, whichever is shorter." Lumbermens filed an application for supervisory writs with this court, which was denied because the affidavit submitted with the motion and order to dismiss for abandonment did not state that no step in the prosecution or defense had taken place in excess of three years as required by LSA-C.C.P. art. 561. Woodward v. Lumbermens Mutual Casualty Insurance Company, 99-0252 (La. App. 1st Cir. 5/7/99) (see Appendix A).
On May 18, 1999, Lumbermens filed a second motion and order to dismiss on grounds of abandonment. The affidavit submitted in connection with that motion and order to dismiss states that no step in the prosecution or defense has taken place in this matter for a period in excess of three years. The trial court granted the motion and dismissed plaintiff's suit with prejudice. The record offers no explanation as to why the trial court signed the order of dismissal on the basis of three year abandonment, having previously held that for an action pending at the time of the amendment, a party had either the original five year period or three years from the effective date of the amendment, whichever is shorter. This appeal followed.
RIGHT TO APPEAL
Before reaching the merits of the appeal, it is necessary to determine whether plaintiff has the right to appeal from the May 18, 1999 order that dismissed his suit for abandonment. Louisiana Code of Civil Procedure article 2083 provides, in part, "An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, from an interlocutory judgment which may cause irreparable injury , and from a judgment reformed in accordance with a remittitur or additur under Article 1814."
In Simmons v. Dixon, 306 So.2d 67 (La. App. 1st Cir. 1974), this court held that a judgment of dismissal pursuant to LSA-C.C.P. art. 561 is an interlocutory judgment, the effect of which does not produce irreparable injury . Therein, this court reasoned:
The jurisprudence is to the effect that where there is a dis
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