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Woodward v. Lumbermens Mutual Casualty Co.3/28/2001
ice and an informal extension with the agreement to work towards settlement.
In Melancon, 307 So.2d at 312, the Louisiana Supreme Court made it clear that any alleged waiver of LSA-C.C.P. art. 561 must appear in the court record and extrinsic proof of such is not permitted. See also Porter v. Progressive Specialty Insurance Company, 99-2542, p.5 (La. App. 1st Cir. 11/8/2000), 771 So.2d 293, 295. Thus, even if the letter to which plaintiff refers amounts to a waiver, it cannot be considered because it does not appear in the suit record. The plaintiff did proffer the letter at the hearing on the motion to set aside the dismissal on January 25, 1999; however, he has alleged no error with any evidentiary rulings of the trial court excluding the letter from evidence. Plaintiff, then, has presented this court with no proof of any waiver by Lumbermens. Accordingly, this argument is without merit.
1997 AMENDMENT TO LSA-C.C.P. ART. 561
Plaintiff also argues that the retroactive application of article 561 divests him of a vested right, thereby contravening due process guarantees. We disagree.
This court has previously held that the shortened time period provided for in the amendment to LSA-C.C.P. art. 561 may be applied to cases pending on July 1, 1998, the effective date of the amendment. Green v. Southern United Fire Insurance Co., 99-1430, p.4 (La. App. 1st Cir. 6/23/00), 762 So.2d 1156, 1159. In Green, it was determined that LSA-C.C.P. art. 561 is procedural in nature, rather than substantive, and may be applied retroactively because it does not operate to disturb vested rights. Green, 762 So.2d at 1158. We found that the retroactive application does not operate to disturb vested rights since the legislature provided a reasonable period following the enactment of the amendment to afford those litigants involved in pending lawsuits to take action therein to preserve their rights. Green, 762 So.2d at 1158. Accordingly the trial court properly dismissed plaintiff's action on the basis of abandonment.
CONCLUSION
Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to Billy C. Woodward.
AFFIRMED
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