 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Stemley v. Foti10/26/2005
ly in the year 2000 and conducted discovery against the defendants at that time. Over the next year, Mr. Stemley actively pursued his case, filing several motions and attending a hearing on various exceptions filed by the defendants. As stated, however, between November 21, 2001, and the defendants filing a motion for abandonment on December 8, 2004, he took no formal action with the court. In the absence of any other, formal motion or petition with the court, we decline to hold that a letter by a party denying an intent to abandon constitutes a "step" sufficient to interrupt the abandonment period.
Finally, we note that there is some indication by Mr. Stemley that part of the delay experienced in this case was due to circumstances beyond his control-i.e., his imprisonment. Our review of the record reveals that this was not the case. In Jones v. Phelps, 95-0607 (La. App. 1st Cir. 11/9/95), 665 So. 2d 30, writ denied, 95-2907 (La. 2/2/96), 666 So. 2d 1104, the court stated:
Two exceptions to the rule of abandonment have been recognized by the courts: (1) when the failure to prosecute was caused by circumstances beyond the plaintiff's control and (2) when the defendant waived his right to plead abandonment by taking action in the case inconsistent with an intent to treat the case as abandoned.
The phrase "circumstances beyond the plaintiff's control" in the first exception contemplates events making it impossible for the litigant to act in his own behalf to take the requisite steps (e.g., parties in military service or confined to mental institutions). Jones argued that his incarceration in a Texas institution from 1981 to 1989 and the withdrawal of his counsel in 1988 were circumstances beyond his control which stalled the lawsuit and prevented him from prosecuting the matter further. The fact that Jones may have been incarcerated for a period of time while this case was pending or may have made unsuccessful attempts at engaging new counsel did not create a legal impediment which kept him from hastening the matter to judgment. At any time, Jones could have taken appropriate steps to move the litigation forward, but failed to do so. (Citations omitted.) (Emphasis ours.)
Mr. Stemley asserts that he gave pleadings to prison officials dated April 4, 2004, July 30, 2004, and February 17, 2005; however our review concludes that the April and July 2004 pleadings are not present in the record and the February 2005 pleadings were filed beyond the abandonment period.
Accordingly, based on this record and the applicable jurisprudence, we cannot say that Mr. Stemley's imprisonment created a legal impediment to his pursuit of this matter.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of the district court dismissing this case as abandoned.
AFFIRMED.
Page 1 2 3 4 5 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|