PARISH OF ST. TAMMANY
Appeal from the Twenty-Second Judicial District Court In and
for the Parish of St. Tammany State of Louisiana Trial Court
No. 2005-10435 The Honorable Scott Gardner, Judge Presiding
R. Gailbraith Hammond, Louisiana Attorney for Plaintiff/
Appellant, Burgess, Inc.
M. Rabalais Angel L. Byrum Ronald S. Hagan Mandeville,
Louisiana Attorneys for Defendant/ Appellee, St. Tammany
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
an appeal by Plaintiff, Burgess, Inc. (Burgess), of an order
dismissing its claims against St. Tammany Parish (the Parish)
on grounds of abandonment. For the reasons set forth below,
we affirm the trial court.
AND PROCEDURAL HISTORY
is the owner of several tracts of unimproved and residential
property in Cypress Park subdivision (Cypress Park) in
Lacombe, Louisiana. Cypress Park was developed in the
1950's, but many lots remain undeveloped and owned by
Burgess. Burgess claims that as other subdivisions were
developed in the area, drainage problems were created for
Cypress Park. The area where Cypress Park is located has
experienced drainage and flooding problems for decades. In
2004, in order to improve the drainage, the Parish dug
canals, many of which were dug across lots owned by Burgess.
Burgess asserts that the Parish did not have its permission
to dig the canals across its property and did not expropriate
the property. After the Parish dug the canals, the federal
government changed the flood maps for the subdivision,
causing it to be harder to develop land in the subdivision.
Additionally, part of the subdivision was designated a
"floodway, " meaning that only structures which did
not impede the flow of water, such as those on stilts, could
be built. The Parish then put a moratorium on new
construction in Cypress Park due to drainage issues, which
was renewed every six months until November 2010. Burgess
filed suit on January 27, 2005, which was amended twice, and
sought damages from the Parish for an inverse condemnation
and public taking of property, loss of opportunity to sell
the lots, expenses to obtain surveys and drainage studies,
and other damages. The Parish denied liability.
undisputed that formal discovery requests were last served
and filed in the record on February 3, 2012. The record does
not contain answers to this discovery by the Parish, nor a
motion to compel by Burgess. The Parish filed an ex parte
motion and order of abandonment on March 1, 2016, alleging
that abandonment took place by operation of law pursuant to
La. C.C.P. art. 561. The trial court signed an order of
dismissal for abandonment, dismissing the suit without
prejudice, on March 7, 2016. Thereafter, Burgess filed a
motion to set aside dismissal, attaching a multitude of
correspondence and documents. On September 8, 2016, the trial
court held a hearing on the motion to set aside dismissal,
and after taking the matter under advisement, denied that
motion. The trial court issued written reasons for the
denial, and signed a judgment in accordance therewith on
September 13, 2016. It is from this judgment that Burgess
asserts that the trial court erred in holding that the suit
was abandoned, and in refusing to set aside its dismissal for
controlling provision in this case, La. C.C.P. art. 561,
provides, in pertinent part:
A. (1) An action ... 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, ....
(3) This provision shall be operative without formal order,
but, on ex parte motion of any party or other interested
person by affidavit which provides that no step has been
timely taken in the prosecution or defense of the action, the
trial court shall enter a formal order of dismissal as of the
date of its abandonment. The sheriff shall serve the order in
the manner provided in Article 1314, and shall execute a
return pursuant to Article 1292.
(4)A motion to set aside a dismissal may be made only within
thirty days of the date of the sheriffs service of the order
of dismissal. If the trial court denies a timely motion to
set aside the dismissal, the clerk of court shall give notice
of the order of denial pursuant to Article 1913(A) and shall
file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only
within sixty days of the date of the sheriffs sendee of the
order of dismissal. An appeal of an order of denial may be
taken only within sixty days of the date of the clerk's
mailing of the order of denial.
underlying policy of the abandonment article seeks to prevent
protracted litigation that is filed for purposes of
harassment or without a serious intent to hasten the claim to
judgment. Abandonment is not a punitive measure, but is
designed to discourage frivolous lawsuits by preventing
plaintiffs from letting them linger indefinitely.
Wilkerson v. Bums, 2013-1328 (La.App. 1 Cir.
8/12/14), 152 So.3d 969, 974, writ not considered,
2014-2138 (La. 11/26/14), 152 So.3d 894.
dismissal is the harsh, the law favors and justice requires
that an action be maintained whenever possible so that the
aggrieved party has his day in court. Thus, any action or
step taken to move the case toward judgment should be
considered. If the plaintiff has clearly demonstrated before
the court during the prescribed period that he ...