FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2008-08854,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Juengain, PRO SE PLAINTIFF
R. Alexis, III PORTEOUS HAINKEL & JOHNSON, LLP COUNSEL
composed of Judge Rosemary Ledet, Judge Regina Bartholomew
Woods, Judge Paula A. Brown
Rosemary Ledet, Judge
is a legal malpractice case. The plaintiff, Gary Juengain,
filed this action against the following three defendants:
Harry Tervalon, Bryant Woods, and the Orleans Indigent
Defender Program (the "OIDP") (collectively the
"Defendants"). The trial court, sua
sponte, dismissed the suit as abandoned pursuant to La.
C.C.P. art. 561. From that ruling, Mr. Juengain appeals. For
the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
August 25, 2008, Mr. Juengain-now incarcerated in Louisiana
State Penitentiary in Angola, Louisiana-filed a petition for
damages, in proper person, alleging legal malpractice by the
attorney who represented him in the criminal case that
resulted in his present incarceration. He averred that
he was arrested on June 5, 2008, for possession of cocaine, a
violation of La. R.S. 40:967 C(2). He further averred that he
was framed by the New Orleans Police Department
("NOPD") because of his earlier not guilty verdict.
The gist of his malpractice claim is that his former attorney
failed to visit him in jail, failed to help him prepare his
case, and scheduled a lunacy hearing instead of pursing the
information he provided to them; he averred that his
attorney's actions were "worse than being slapped in
the face." Along with the petition, Mr. Juengain filed
an In Forma Pauperis Application. On November 24,
2008, the Defendants were served with the petition.
November 26, 2008, Mr. Juengain filed a motion for default
judgment. The record does not reveal that Mr. Juengain ever
confirmed the default judgment motion or that the trial court
ever ruled on it. On December 16, 2008, Mr. Juengain sent a
letter to the clerk of the Civil District Court
("CDC") regarding his In Forma Pauperis
Application, seeking to determine if it had been granted.
December 19, 2008, the Defendants filed a motion for
extension of time to file responsive pleadings, which was
granted. On January 22, 2009, the Defendants filed a second
motion for extension of time, which was granted.
February 3, 2009, Mr. Juengain filed a request for the
issuance of a Subpoena Duces Tecum; the trial court
denied the request because it was not in the proper form. On
that same date, Mr. Juengain filed a request for appointment
of counsel; the trial court denied the request, citing the
lack of authority for appointment of counsel in a civil case.
On February 6, 2009, the Defendants filed their answer and
various exceptions-exceptions of no right of action;
alternatively, the claim is barred by immunity, no cause of
action, res judicata; alternatively, lis
pendens, prescription; alternatively, laches and
mootness. On February 13, 2009, the CDC Clerk's office
sent a letter to Mr. Juengain providing him the proper form
to use to request a Subpoena Duces Tecum.
March 3, 2009, Mr. Juengain filed multiple Subpoena Duces
Tecum Requests (the "Subpoena Requests"). On
May 21, 2009, Mr. Juengain filed a request for copies of the
Defendants' answer and the original petition. On June 3,
2009, the CDC Clerk's office informed Mr. Juengain that
before his request for copies could be processed, he was
required to provide a statement of his income. On July 7,
2009, Mr. Juengain filed a statement of his income. On March
6, 2011, Mr. Juengain filed an "Inmate's Request for
September 30, 2014, Mr. Juengain filed a Motion to Amend the
Petition (the "First Motion to Amend"). On October
7, 2014, the trial court ordered that Mr. Juengain be allowed
to amend his pleadings and that he provide service
instructions within thirty days. On January 9, 2015, the
Defendants were served with the supplemental and amended
October 27, 2016, Mr. Juengain filed a Second Motion to Amend
the Petition (the "Second Motion to Amend"). On
November 2, 2016, the trial judge denied the Second Motion to
Amend; and, as noted at the outset of this opinion, the trial
court, sua sponte, dismissed the suit as abandoned
pursuant to La. C.C.P. art. 561. The trial court's order
stated as follows:
All of the requests by plaintiff Gary Juengain are hereby
denied. This case Juengain versus Tervalon CDC
2008-8854 has been abandoned by operation of law. A subpoena
request was filed on March 3, 2009. The next step was a
motion to Amend the Petition on Sept[ember] 30, 2014 [the
First Motion to Amend]. As more than three years passed, the
case has been abandoned. This Court dismisses plaintiff Gary
Juengain's claim with prejudice at his costs.
sole issue presented by this appeal is whether the trial
court erred in dismissing Mr. Juengain's malpractice suit
as abandoned pursuant to La. C.C.P. art. 561. Whether a suit
has been abandoned is a question of law. Olavarrieta v.
St. Pierre, 04-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902
So.2d 566, 568. In reviewing a question of law, an
appellate court applies a de novo standard of
review. Delacruz v. Anadarko Petroleum Corp.,
14-0433, p. 8, n. 9 (La.App. 4 Cir. 12/3/14), 157 So.3d 790,
795 (citing Liner v. Ippolito, 08-0208, p. 3
(La.App. 4 Cir. 8/20/08), 991 So.2d 1150, 1152) (noting that
"[t]he issue of abandonment is a question of law subject
to de novo review on appeal."). The question
the appellate court must decide is simply whether the lower
court's interpretive decision is legally correct.
Faust v. Greater Lakeside Corporation, 03-0808, p. 3
(La.App. 4 Cir. 11/26/03), 861 So.2d 716, 718; see also
Heirs of Simoneaux v. B-P Amoco, 13-0760, p. 3 (La.App.
4 Cir. 2/5/14), 131 So.3d 1128, 1130 (citing Meyers ex
rel. Meyers v. City of New Orleans, 05-1142, p. 2
(La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721).
action-other than a succession proceeding-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 A(1). For purposes of
abandonment, "[a] party takes a 'step' in the
prosecution or defense of an action when he takes formal
action before the court intended to hasten the matter to
judgment, or when he takes a deposition with or without
formal notice." James v. Formosa Plastics Corp. of
Louisiana, 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335,
338 (citing Clark v. State Farm Mut. Auto. Ins. Co.,
00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 and
collecting cases). Not all filings in the court record are
considered "steps" for purposes of interrupting the
abandonment period; for example, requests for notice; change
of address notices; and motions to withdraw, enroll, or
substitute counsel are not "steps." True Gospel
of Jesus Christ Church Ministry v. Doucette, 08-0634, p.
5 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, 798.
Supreme Court, in Clark, construed La. C.C.P. art.
561 as imposing the following three requirements on a
plaintiff to avoid abandonment:
First, plaintiffs must take some "step" towards
prosecution of their lawsuit. In this context, a
"step" is defined as taking formal action before
the court which is intended to hasten the suit toward
judgment, or the taking of a deposition with or without
formal notice. Second, the step must be taken in the
proceeding and, with the exception of formal discovery, must
appear in the record of the suit. Third, the step must be
taken within the legislatively prescribed time period of the
last step taken by either party; sufficient action by either
plaintiff or defendant will be deemed a step.
Clark, 00-3010 at p. 6, 785 So.2d at 784 (internal
footnotes omitted); see also Louisiana Dept. of
Transportation and Development v. Oilfield Heavy Haulers,
L.L.C., 11-0912, pp. 4-5 (La. 12/6/11), 79 So.3d 978,
the passage of a three year interval during which neither
party takes a "step" in the prosecution or defense
of the action, abandonment takes place automatically. La.
C.C.P. art. 561 A(1) and (3). "The article is operative,
and the dismissal effective, as soon as this interval has
expired. An actual judgment is not necessary to ratify or
confirm the fact of abandonment." Clark v. S. Tire
Serv., Inc., 00-1548, p. 2 (La.App. 5 Cir. 2/14/01), 782
So.2d 27, 28; see La. C.C.P. art. 561 A(3)
(providing that "[t]his provision shall be operative
without formal order."). Hence, "a defendant is not
required to file a motion to dismiss a case as abandoned in
order to make the plaintiffs abandonment of the case
effective." 1 Judge Steven R. Plotkin and Mary Beth
Akin, LOUISIANA PRACTICE SERIES: LOUISIANA CIVIL PROCEDURE,
Article 561 (2016 ed.).
jurisprudence has outlined the following general principles
• The purpose of Article 561 is the prevention of
protracted litigation filed for purposes of harassment or
without a serious intent to hasten the claim to judgment.
See Chevron Oil Co. v. Traigle,436 So.2d 530, 532
(La. 1983). Abandonment is not a punitive concept; rather, it
balances two competing policy considerations: (1) the desire
to see every litigant have his day in court and not to lose
same by some technical carelessness or unavoidable delay, and
(2) the legislative purpose that suits, once filed, should
not indefinitely ...