James L. Dendy, Executor of the Succession of Bernard R. Kannon, Sr. VS City National Bank and Jimmy Johnston
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 2436 JAMES L DENDY EXECUTOR OF THE SUCCESSION OF BERNARD R KANNON SR VERSUS CITY NATIONAL BANK AND JIMMY JOHNSTON r Judgment Rendered OCT 1 7 2007 iflYl Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge Louisiana Case No 456 915 The Honorable Kay Bates Judge Presiding Dennis R Whalen Counsel for Plaintiff Appellant Baton James L Rouge Louisiana Rebecca Kittok Wisbar Baton Rouge Louisiana Stephen F Chiccarelli Baton Rouge Louisiana Dendy Executor Counsel for Defendant JPMorgan Counsel for Defendant Regions Appellee Chase Bank N A Appellee Bank BEFORE GAIDRY McDONALD AND McCLENDON JJ GAIDRY J A succession executor against a bank as appeals abandoned and date of abandonment For the a judgment recognizing formally dismissing following reasons his civil action the action we reverse as of the the judgment FACTS AND PROCEDURAL HISTORY The James L plaintiff Bernard R Kannon Sr is the executor of the succession of Dendy In that capacity he filed two separate lawsuits in the 19th Judicial District Court for the Parish of East Baton January 5 1999 seeking reimbursement of the Jimmy Johnston who allegedly forged the actions relate to the The first action negotiation assigned civil Bank and now Bank One Mr Johnston did default was not as a petition and combined answer as cross well case a on May On October 11 ordered a In the meantime the second action 2000 plaintiff filed November 16 Snapy liability on 6 July 1999 number 956 916 also named answer Regions One third to the third 1999 contradictory hearing on banks preliminary judgment by claim and third party demand The motion bore the actions for trial court 19 two defendants its Regions Bank Regions as by Louisiana N A denying party defendant Bank of West Baton Rouge filed its party demand as on formerly City National in the first action assigned civil defendant named Bank One entered against him in the first action Mr Johnston a the answer The second action filed petition NA NA The through different number 956 915 JPMorgan Chase Bank answered the endorsements payees Jimmy Johnston and Bank One Louisiana of checks cashed amounts of different checks case Rouge s Inc a motion captions on to consolidate his of both actions The trial the motion for December 4 2000 2000 the other third filed its 2 two answer to party defendant in Regions s third party demand combined with its own third party demand That against plaintiff pleading bore the captions of both actions but was filed only in the record of thefirst action On December 4 2000 party demand of Snapy the trial motion court actions on June 11 August 21 granted 2002 day no second motion a That motion that was finally signed a heard on order to the third Although plaintiffs was signed consolidate the 12 August 2002 and judgment of consolidation on 2002 Subsequent One filed claim was plaintiff filed reason and the trial court granted to minute entry for December 4 2000 reflects that s some answer in the record of the second action consolidate the actions to and for Inc s plaintiff filed his an against West Baton to the amended Rouge s answer September on in the first action 9 2002 Bank combined with cross a and The record shows and the parties concede filing Snapy s third party demand a Johnston and Mr that Bank One order of consolidation of that combined pleading was against the Bank of the last formal step taken in the prosecution of the first action until November 23 2005 On Katrina August 29 2005 southeastelTI Louisiana which devastated the New Orleans was On area struck by Hurricane September 6 2005 Governor Kathleen Babineaux Blanco issued Executive Order KBB 2005 32 following her earlier proclamation of a state of emergency for the entire Executive Order KBB 2005 32 ordered that state a ll deadlines in proceedings including liberative prescriptive and peremptive periods comis order were suspended applied retroactively 2005 48 issued suspension on until at least from September of all deadlines in again applicable statewide August 23 September 29 2005 2005 25 2005 legal in all and that the By Executive Order KBB Governor Blanco extended the legal proceedings until October 25 2005 The disastrous effects of Hurricane Katrina Hurricane Rita which made landfall southwestern of the area issued Executive state Order KBB on September 2005 However proceedings was KBB 2005 48 The on legislature devastating the Governor Blanco all suspension of October 25 2005 statewide until November as in other deadlines provided in legal Executive Order was called into and enacted 2005 special session from November 6 to legislation ratifying the governor s action issuing the executive orders and further extending the suspension of prescriptive 3 2006 and peremptive periods from August 26 2005 through January 2 On November 23 2005 conference in these consolidated purposes of plaintiff filed a request for in the first action cases setting both consolidated cases counsel but no order a trial date named the was The request bore the suit parties in both cases action February seeking order of dismissal an motion Bank One contended that Executive Order KBB 2005 67 parishes of Ca1casieu on the provided pre trial no was of respective indication request parte motion in the first grounds of abandonment action no an ex a captions and their submitted with the request There is 9 2006 Bank One filed status for the express in the record that the trial court took any action in response to the On a settling pleadings fixing discovery deadlines fixing conference and 1 those of except for those parishes affected by Hurricane Rita November 18 in end to the 2005 by extending the suspension of IJiberative prescriptive and peremptive periods 25 24 2005 On October 19 2005 67 followed were taken in the In its prosecution or that deadlines in Cameron Jefferson Davis and legal proceedings in the Vermilion were suspended until November 25 2005 2 See La R S 9 5821 B and 9 5822 A effective November 23 retroactively as well as 2005 enacted The statutes prospectively by were Acts 2005 4 Acts 2005 1st Ex Sess expressly declared to be 1st Ex Sess No 6 94 No 6 9 1 applicable defense of the first action from 2005 on On Februmy 3 2006 April 17 2006 the trial 2002 through the motion for assigned court November 28 hearing contradictory basis on a On March 15 2006 consolidated actions 9 September Regions filed contending that no an ex parte motion dismiss both to steps in the prosecution defense or had been taken since November 27 2002 when plaintiff served responses discovelY propounded by Regions in the second the trial signed court an order denying Regions that plaintiff filed his request for On April 3 2006 assigning oral signed May order on required by La interim order having the trial 2007 findings motion s to It ruled in favor of Bank One judgment granting Bank One 2007 not be appropriate C CP s motion dismissed decretal on sign dismissing of fact and 2 case The corrected the first action to show grounds as for judgment was that the a show by briefs judgment dismissal 2007 we issued as an for the limited purpose of dismissing judgment issued the first action was of November 22 were cause of formal On March 6 corrected judgment a reasons the language ordering the remand of the court This court issued appeal ordering the parties 561 A art of the date of abandonment 23 the fact November 23 2005 heard Bank One court devolutive a January 25 contain not on reciting 2006 1 2006 why the appeal should did On March 21 motion s conference status the trial Its reasons Plaintiff instituted cause a in the first action recognize abandomnent action to on signed 2005 May 1 on as April Written 2007 ASSIGNMENTS OF ERROR Plaintiff contends that the trial his request for a status conference court was 5 not erred in a finding that the filing of step in the prosecution of the first action sufficient to doctrine of contra valentem non abandomnent and in interrupt failing to the apply defeat the claim of abandonment to PRELIMINARY PROCEDURAL CONSIDERATIONS Consolidation of actions pursuant procedural convenience designed not cause a lose its to case Hercules Gallion Co 417 Procedural rights peculiar companion case its merits own consolidated 1051 p 5 by the Id cases La does App 0166 La 2 9 96 status to one C CP procedural entity 511 La not are pleading or rendered 15 12 95 motion in 665 So 2d 774 actions does render the consolidated actions cause determine if it issue is 561 apply mere pleading to all 1982 re to stand a on of several one In Miller 95 or applies some or a the to only one or more as it relates a was filed to judgment must to abandonment in 398 99 242 So 2d 554 6 discovery a to all of the pleading or be considered a common 557 58 to This under La C C P procedural step if it the and the of the consolidated actions pleading merge of the consolidated applicable of several actions consolidated for trial hasten all of those actions a parties actually affected records in which it circumstances Pittman 257 La 389 pleading captions document procedurally The substance and purpose of such particularly significant In fact that bears the suit of action to which it relates particular suit record mi the correspondence not must v 667 So 2d 541 the actions for all purposes or a 776 writ denied 96 Because consolidation of actions for trial does not response Cir applicable case procedurally affect the others 1st Cir IS Howard 1st App fact of consolidation each a 1561 art of actions and does multiplicity a case filing of not as So 2d 508 mere The avoid to La to was trial La 1970 may clearly intended to See Reed v This Regions appeal appeal taken from the was has submitted briefs in its but Regions is not emphasizes Regions did motion to a party judgment in the first action only purported capacity to as an the first action As not seek review of the order dismiss the consolidated second action properly before Accordingly us merits of that order or we the procedural will not in this plaintiff correctly denying its ex parte that order is so indulge appellee not in discussion of the status of the second action 3 ANAL YSIS Louisiana of Civil Code Procedure article 561 A provides III pertinent part A 1 An action is abandoned when the take any step in its period prosecution parties fail defense in the trial or to court for a of three years 2 This order but provision shall be operative without formal parte motion of any pmiy or other interested person by affidavit which provides that no step has been taken for a on ex period of three action the trial years in the court shall enter prosecution a or defense of the formal order of dismissal as of the date of its abandonment 3 within A motion to set aside thiliy days dismissal may be made only of the date of the sheriffs service of the order a of dismissal If the trial comi denies the dismissal a the clerk of court shall denial pursuant to Article 1913 A pursuant to Article 1913 D timely motion to set aside give notice of the order of and shall file a certificate appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service 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 4 An of denial 3 The denial of Regions motion in the second consolidated action interlocutory being a party to the first action Regions likewise cannot properly be considered an appellee in this appeal To the extent that Regions s brief discusses issues relating to the judgment in the first action it might conceivably be construed as an amicus curiae brief However as Regions did not move for leave to judgment and not submit its brief s appealable we was an Not also will not consider it in that Courts of Appeal Rule 2 12 11 7 respect UnifOlID Rules of Louisiana A taking as suit in the step prosecution defense of or formal action before the that is intended court appearing hasten the suit toward to exception of fonnal discovery that need State Farm Mut Auto Ins Co 784 action has been defined an Louisiana Code of Civil Procedure construed in favor of maintaining a Clark 15 5 La 785 2d So to be liberally 01 article 561 suit plaintiffs with the judgment in the record not appear 00 3010 p 6 in the record of the is Id 00 3010 at p v 779 8 785 So 2d at 784 The trial court written s essentially track its earlier oral The trial court abandonment accepted on position s August 29 that the 2005 than liberative on October 25 2005 prescription peremption April 1 2007 3 2006 suspension of the Executive Order KBB provided for all deadlines other in Executive Order KBB 2005 Bank One contended that the last step taken in the first action occurred 67 on September September insufficient 9 2002 26 2002 to contended that reasons did not constitute even 2005 a that step in the action period the stating its finding corrected a s prosecution accepted as the It further commencement suspension of the deadline only served days from October 25 2005 intenupt the accrual of abandonment plaintiff s request for a or until In its oral status conference step in the prosecution of the action without expressly as judgment was nine additional to on properly served making it infonnal discovery the trial court found that not constitute discovery propounded by plaintiff if the latter date give plaintiff twenty November 22 and was date of the abandonment to and as on May the effective date of the suspension of all deadlines in legal proceedings in 2005 32 and ended of judgment for judgment issued reasons Bank One period began for reasons to and the commencement later written 8 date of abandonment reasons however the trial In its comi held that abandonment accrued additionally prior to the That the requested conference in the request is not of abandonment In a So 2d 1170 determining s actions v Inc Holly 1172 73 See Clark 00 3010 court referred was to Form matter far or 5 La caption should 9 785 So 2d at 786 at p a purposes of a trial date By prevail implement a any sort of before trial plaintiff s counsel sought as conference authorized status conference would substantive purpose of the a pre trial technically 4 was request for interrupt the ship court in a 961 substance over conference with a or clearly fall within the La C C P require the not the be true parties plaintiff s are finality of the more of Civil Procedure article App 1551 4 court to to do certain Emphasis intent and the relevant than conference conference is period for abandonment La 1551 A art conference order scheduling Commendam 06 1531 p 5 Louisiana Code or pre trial conference a recently confronted with the issue of status and three year would requested conference subtle distinctions in the nomenclature This by scheduling order requiring While this may supplied P 07 14 2 of his request filed means The first three listed items scheduling Bank One argues that proper 1st Cir App not compliance and other counsel in both consolidated actions for the purposes of setting things conference the intent and than technical more settling pleadings fixing discovery deadlines fixing and status as a the issue of abandonment 06 0313 p in the record of the first action the day one determinative of the issue of its character for purposes pmiy Thibaut Oil Co November 22 2005 of plaintiff s request filing substance of on Hidalgo sufficient v a a to Catfish Queen 1st Cir 5 4 07 authorizes whether 961 So 2d trial court to set conferences of counsel for the purposes of considering t he necessity or desirability ofamendments to the pleadings t he control and scheduling of discovery and other The article may aid in the disposition of the action the trial comi in its discretion to conduct multiple conferences matters as 9 specifically authorizes 434 437 The case arose We held that the filing procedurally were in the same of requests proper and trial court as that of the present action letter for by and timely conferences scheduling comported with La C C P 1551 and Rule 9 14 of the Louisiana Rules for District Courts court local rule s set actually a scheduling Here the as in technically requires trial date status or conference Id 06 1531 at p 6 matters erred in ruling that plaintiff s request was is a not pretrial conference motion to of his action prosecution for trial set determinative judgment by selecting deadlines for the parties pretrial in the to That the trial on the ultimate purpose of the conference Hidalgo matter to opposed as formal a The 961 So 2d at 438 for a status art conference remaining question a this point to hasten was to or to conclude all The trial not court a step is whether that step was timely Louisiana Revised Statutes 9 5822 A provides All prescriptions including liberative the prescription of nonuse and all peremptive acquisitive and periods shall be to a limited suspension and or extension during the time subject period ofAugust 26 2005 through January 3 2006 however the suspension and or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26 2005 through January 3 2006 This limited suspension and or extension shall terminate on January 3 2006 and any right claim or action which would have expired during the time period ofAugust 26 2005 through January 3 2006 shall lapse on January 4 2006 Emphasis supplied This only statute Other operated deadlines affected legal governed by La A to extend R S 9 5823 which All deadlines suspended by Executive be subject time however by Hurricanes Katrina and Rita provides legal proceedings which were Orders KBB 2005 32 48 and 67 shall limited suspension and or extension during the of November 25 2005 through January 3 2006 to period in prescriptive and peremptive periods the a suspension shall be limited and shall and or extension of these deadlines apply only if these deadlines would 10 are however the suspension and or extension of these deadlines shall be limited and shall apply only if these deadlines would have otherwise lapsed during the time period of November 25 2005 through January 3 2006 This limited suspension and or extension shall terminate on January 3 2006 and any deadline in legal proceedings which would have expired during the time period of November 25 2005 through January 3 2006 shall lapse on January 4 2006 B to the the provisions of Subsection A and that deadlines in legal proceedings were not Notwithstanding extent suspended by Executive Orders KBB 2005 48 and 67 if a deadline in a legal proceeding lapsed during the time period of October 25 2005 through November 25 2005 a party shall have the right to seek an extension or suspension of that deadline by contradictory motion or declaratory judgment The party seeking the extension shall bear the burden of proving that either the party or his attorney was adversely affected by Hurricane Katrina or Rita and but for the catastrophic effects of Hurricane Katrina or Rita the legal deadline would have been timely met For good cause shown the court shall extend the deadline in the legal proceeding but in no instance shall the extension be later than January 3 2006 Emphasis supplied The resolution of this govelTIOr matter ultimately hinges executive orders and the S corresponding legislation extending prescriptive and peremptive periods apply to three year abandomnent considered than a prescriptive interrupted by the or period filing of the request for during November 25 the 2005 KBB 2005 67 S properly peremptive period abandomnent accrued through is abandonment a See La R S status determine legislative State 10 21 97 whether intent and of La Div whether the deadline other 9 5823 B gap was If the latter of October 25 and Executive Order 1 B a the supreme peremptive legal conference suspension Because the Louisiana Civil Code does not to a or If the former abandomnent month one upon whether the particular court time limitation has resorted to public policy underlying of Admin 701 So 2d 937 v 940 provide guidance McInnis Bros Thus 11 courts a an is look or of the time limitation 97 0742 p to the how prescriptive exploration particular Constr on language 4 La of the statute the purpose behind the against suspension interruption determine its as nature Ourso 02 1978 should or p 5 policy mitigating renunciation of that time limit or prescriptive 03 9 La 4 and the public statute peremptive or 842 So 2d 346 349 to of Ethics v rationale same neither upon the self essentially passing of three years without and it is effective without court order it respects which court must on its more be motion own right the defense of plead it or to plead prescription can valentem may may also defeat a So 2d at 784 85 Akyar v 413 claim of defeat to cannot In those prescription be noticed and 1005 be waived by the failure to by a But unlike defendant a affirmatively claim of abandonment a See Clark 99 806 p 4 writ denied 00 0616 by 2 It has also been held that the doctrine prescription Lee can 561 A rather than 927 B arts be waived apply art defense and abandonment through acknowledgment contra non So 2d 411 See La C C P automatically occurs step being taken by either party a La C C P as a it operative closely resembles peremption affirmatively pleaded the peremption of The or apply in detennining whether abandonment falls into either category Abandonment is as State Bd for La 00 3010 at p App 5th Cir 125 La 4 20 00 760 So 2d 348 as it 7 785 00 751 In these respects then it more closely resembles prescription than peremption Fortunately the supreme court has Clark unequivocally theoretically the t 11 a bandonment is both form of liberative prescription prescription that 3010 at p that a recognized that provided guidance governs the 785 So 2d at 787 that exists on historically and independent underlying substantive claim Emphasis supplied he historical and theoretical prescription renders it appropriate nature to 12 from Clark 00 It further observed of abandonment consider the issue as a species of prescriptive principles in analyzing So 2d abandonment issues res nova at 791 The issue before Since the us is Clark 00 3010 abandomnent a species should likewise be logical to La express directive that La R S to effect the purposes stated KBB 2005 32 abandonment to as lapse on d on 26 was January In summary August accrued 26 2005 request for purposes a suspended 4 2006 Id we was therefore 2005 through January 3 2006 on construed 9 5822 A apply would have otherwise 26 3 the defendant to prescription lapsed 2005 during the time 2006 See La R S through January a 3 2006 status and conference was period that would have statutorily suspended from and that the November 23 2005 filing of given plaintiffs its express step in the prosecution of the action sufficient The s timely 9 a R S hold that the abandonment status conference prescription liberally Plaintiffs request for September on constituted to case therefore judgment is remanded for further assessed in this the hold that Executive Orders 2005 67 and La through January 2005 intenupt abandomnent case we alternatively September or November 23 2005 ordinarily shall be et seq Accordingly period to guided by the legislature other forms of liberative 9 It also and period of August 9 5822 A 9 5 821 are well as September We due conclude that it also intended that to 2005 48 The abandomnent on R S 9 5822 A of the less strict time limitation of suspended 785 the strict time limitation of even peremption should be suspended pursuant it is 19 res nova legislature intended that 2005 hurricane crisis at p of the trial court is reversed and the proceedings All costs of this appellee JPMorgan Chase Bank One Louisiana N A REVERSED AND REMANDED 13 to Bank N A appeal are formerly
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