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Burgess, Inc. v. Parish of St. Tammany

Court of Appeals of Louisiana, First Circuit

October 25, 2017

BURGESS, INC.
v.
PARISH OF ST. TAMMANY

         On 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

          Glen R. Gailbraith Hammond, Louisiana Attorney for Plaintiff/ Appellant, Burgess, Inc.

          Kelly M. Rabalais Angel L. Byrum Ronald S. Hagan Mandeville, Louisiana Attorneys for Defendant/ Appellee, St. Tammany Parish Government.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         This is 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.

         FACTS AND PROCEDURAL HISTORY

         Burgess 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.

         It is 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.[1] 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 appeals.

         ASSIGNMENT OF ERROR

         Burgess asserts that the trial court erred in holding that the suit was abandoned, and in refusing to set aside its dismissal for abandonment.

         LAW AND DISCUSSION

         Abandonment

         The 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.

         The 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.

         Because 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 ...


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