Defining Post-Abandonment Waiver: Renunciation Under La. C.C.P. Art. 561

Introduction

The Supreme Court of Louisiana’s decision in Foundation Elevation & Repair, LLC v. Kenneth Miller and Doreen Miller addresses a recurring procedural issue: when and how a defendant may lose the right to plead abandonment of an action under Louisiana Code of Civil Procedure article 561. The dispute arose from a home‐renovation contract between the Millers and two related contractors—Foundation Elevation & Repair, LLC (“FER”) and Direct Source Home Renovation, LLC (“DSHR”)—and a lengthy period during which no party took procedural steps in the case. After the Millers obtained a default judgment and then sought to confirm it, DSHR filed a perfunctory general denial more than three years after the suit lay dormant. The trial court granted DSHR’s motion to dismiss for abandonment, but the court of appeal reversed. The State’s highest court granted writs to resolve the question whether a post-abandonment filing of a general denial operates as a waiver of abandonment. It held that only a clear, direct, and unequivocal renunciation of the abandonment defense—such as submitting the case for decision—can constitute waiver, and that DSHR’s one‐page denial was insufficient.

Summary of the Judgment

The Supreme Court reversed the court of appeal and reinstated the trial court’s dismissal of the Millers’ third-party demand against DSHR for abandonment. Key holdings:

Abandonment under La. C.C.P. art. 561 is self-executing once no step is taken in prosecution or defense for three years.
Article 561 is silent on waiver of abandonment after the three-year period, and the legislature made abandonment “operative without formal order.”
Jurisprudentially created post-abandonment waiver must be analyzed under principles of renunciation (La. C.C. arts. 3449–3450), not acknowledgment.
Only a defendant’s clear, direct, and absolute act—such as submitting an abandoned case for decision—can renounce the right to plead abandonment.
DSHR’s one-page general denial, filed solely after notice of a motion to confirm default, did not renounce its abandonment defense.

Analysis

Precedents Cited

La. C.C.P. art. 561 – defines abandonment as failure to take any step in three years and provides that it is self-executing without formal order.
La. C.C. art. 9 and La. C.C.P. art. 5052–5053 – mandate that clear, unambiguous statutory language must be applied as written.
Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983) – held that submission of an abandoned case for decision effects waiver by renunciation.
Clark v. State Farm Mutual Ins. Co., 785 So.2d 779 (La. 2001) – dicta suggesting waiver by acknowledgment, later curtailed by emphasizing renunciation only.
Bd. of Supervisors v. Bickham, 395 So.3d 792 (La. 2024) – reaffirmed abandonment is nonpunitive and self-executing.

Legal Reasoning

The Court began with the civilian principle that statutes must be applied as written. Article 561 expressly provides that an action “is abandoned” after three years of inactivity and that abandonment “shall be operative without formal order.” Because the statute is silent on post-abandonment waiver, the Court turned to liberative prescription analogies. Under Civil Code articles 3449–3450, renunciation of prescription must be “clear, direct, and absolute.”

Chevron held that submission for decision constituted a renunciation of the abandonment defense. Clark’s broader suggestion that mere acknowledgment could suffice was dicta and has caused confusion. The Supreme Court now clarifies that only renunciation—tied to an unequivocal act such as presenting the case for judgment—can waive abandonment once it has run. A general denial does not manifest an intent to proceed, and thus cannot constitute renunciation.

Impact on Future Cases

Confines post-abandonment waiver doctrine strictly to renunciation—parties may not lose the abandonment defense by filing routine pleadings after three years of silence.
Enhances predictability: practitioners will know that abandonment is self-executing and cannot be contested except via clear renunciation.
Discourages gamesmanship: defendants cannot invoke the merits of an abandoned case by filing perfunctory denials to avoid dismissal.
Promotes judicial economy: courts will dismiss abandoned cases promptly unless a party has affirmatively and unequivocally elected to proceed.

Complex Concepts Simplified

Abandonment (La. C.C.P. art. 561): Automatic dismissal if no procedural “step” occurs within three years.
Self-executing: No court order is required to effect abandonment once the time period passes.
Liberative prescription: A period after which a right or claim is extinguished by inaction; analogous to abandonment.
Renunciation vs. Acknowledgment:
- Renunciation: A clear, direct, and absolute choice to abandon a defense or right (e.g., submitting an abandoned case for decision).
- Acknowledgment: A less formal recognition of a right that interrupts prescription before it runs out (not applicable post-abandonment).

Conclusion

The Supreme Court’s decision in Foundation Elevation & Repair, LLC v. Miller clarifies that Louisiana’s abandonment statute is self-executing and that post-abandonment waiver requires renunciation only. By rejecting any broad “acknowledgment” doctrine for cases dormant more than three years, the Court restores statutory clarity and furthers the twin goals of giving every litigant a day in court and preventing suits from lingering indefinitely. This ruling will guide trial and appellate courts, ensuring that only an unequivocal act of renunciation can forfeit the right to plead abandonment under La. C.C.P. art. 561.