Milton F. Hilbert, III VS Lance E. Miley
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 2108 MILTON F HILBERT III VERSUS LANCE E MILEY On Appeal from the City Court of Slidell Parish of St Tammany Louisiana Docket No 2004 C 1020 Honorable James Jim Lamz Judge Presiding Attorney for Plaintiff Appellant Jacob Kansas Gretna LA Milton F Hilbert III G Brice Jones Attorneys for Ross F Defendant Appellee Lagarde Paul D Hesse Ronald R Caire Jones Lagarde L C Slidell LA BEFORE PARRO GUIDRY AND DRAKE JJ NOV 1 4 2013 Judgment rendered PARRO 1 Milton F Hilbert III appeals a judgment dismissing his suit on the basis of three years abandonment pursuant to LSAC art 561 We affirm the judgment and P C A render this opinion in accordance with Uniform Rules of Louisiana Courts of Appeal Rule 2 16 6 1 Hilbert filed suit on a promissory note on March 22 2004 On February 6 2009 he filed a motion and order to set the matter for trial 2 The trial court signed the order scheduling the case for trial on April 21 2009 However the trial was continued on the court own motion due to the parties failure to file a joint pretrial s statement On April 2 2012 Hilbert filed another motion to set the matter for trial On July 9 2012 Ronald R Caire filed a motion and order to dismiss the suit on grounds of abandonment based on Article 561 The court signed an order of dismissal on A July 17 2012 Hilbert moved to set aside the dismissal and after a hearing the court denied the motion and maintained its order of dismissal A judgment in accordance with this ruling was signed October 31 2012 In this appeal Hilbert contends the trial court erred in finding that the last step taken by a parry to advance its case was Hilbert filing of the motion and order to set s the matter for trial on February 6 2009 He contends the court should have recognized the trial date set by the court April 21 2009 as the appropriate date to commence the three year abandonment period set forth in Article 561 We disagree 1 A Article 561 has been construed as imposing three requirements on a plaintiff A First a plaintiff must take some step toward the prosecution of his lawsuit A step Louisiana Code of Civil Procedure article 1 A 561 states in pertinent part 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 Z During the intervening period a supplemental and amending petition was filed naming Ronald R Caire as an additional defendant Answers were filed by each defendant and various motions were filed by the parties and heard by the court 3 Hilbert relies on Reed v Finklestein 01 1015 La App 4th Cir 1 807 So 1032 writ denied 02 16 2d 020550 La 4 814 So 560 in which the court decided that the date set by the trial court for 02 26 2d a hearing on the plaintiffs motion for summary judgment constituted the commencement date for the three year abandonment period rejecting the defendant argument that the last step taken by the s plaintiff was his motion to set the matter for hearing For the undersigned reasons we decline to follow the Reed decision 2 is the taking of formal action 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 by either party sufficient action by either plaintiff or defendant will be deemed a step Clark v State Farm Mut Auto Ins Co 003010 La 5 785 So 779 01 15 2d 784 In Hardy v A Wilbert Sons L 061093 La App 1st Cir 9 970 s C 07 19 2d So 1063 1066 the last action taken by a party appearing of record was a service request filed by the plaintiff on July 1 2002 The sole determination to be made by this court was whether the signing of a rase management order on October 4 2002 interrupted the running of the three year time limitation This court stated that because the signing of the case management order was not a step taken by a party to the lawsuit it could not serve to interrupt the running of the applicable period Id It is undisputed that no step in the prosecution of this litigation appearing of record was taken by either plaintiffs or defendants after July 1 2002 the date on which plaintiffs requested service on the defendants On July 1 2005 with the passing of three years without a step having been taken the lawsuit was deemed abandoned by the operation of law La Code Civ P art 561 Therefore the trial court correctly dismissed the lawsuit on the grounds of abandonment Id We note that the wording of Article 561 states that an action is deemed abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years Emphasis added When a statute is clear and unambiguous and its application does not lead to absurd consequences the statute is applied as written Dejoie v Medley 082223 La 5 9 So 826 829 see LSA 09 3d C art 9 LSAR 1 Unequivocal provisions are not subject to judicial construction S 4 and should be applied by giving words their generally understood meaning See Snowton v Sewerage and Water Bd 08 La 36 So 164 168 see also 399 09 17 3d 4 The case management order was signed by a trial judge in another division and stated that Hardy s water contamination suit was included in the order and was consolidated with a number of similar suits but also specifically stated that the case management order did not act as a consolidation of the cases See Hardy 970 So at 106465 2d 3 LSAC art 11 LSAR 1 Article 561 unambiguously and unequivocally states C S 3 that it is the responsibility of the parties to take action in furtherance of their claims in the litigation Had the legislature meant to include actions taken by the court such wording could easily have been included in Article 561 Since it was not we agree with the analysis of the trial court and of this court in the Hardy case Additionally we note that there was no step in the prosecution of the case on the date suggested by Hilbert which was the scheduled trial date April 21 2009 In fact since that trial date was continued by the court on its own motion nothing at all occurred on that date For the above reasons we conclude as did the trial court that the motion to set the matter for trial filed by Hilbert on February 6 2009 was the date of the last step taken by a party in the lawsuit before April 2 2012 when Hilbert again filed a motion to set the matter for trial Over three years elapsed between these two steps taken by a party of record in the prosecution of this litigation Therefore under the clear wording of Article 561 this lawsuit was properly dismissed as abandoned Accordingly we affirm the judgment of the trial court and assess all costs of this appeal to Milton F Hilbert III AFFIRMED 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
