The right ingredients for complex litigation in Louisiana.

Under La. C.C.P. art. 561, an action is considered “abandoned” when a party to a lawsuit fails to take a step in the prosecution or defense of a civil matter for three years. The Article also provides abandonment occurs without formal order. The Louisiana Legislature recently amended this statute to codify jurisprudence that developed in response to litigation where parties disputed whether a case had been abandoned. These amendments are discussed below.

Abandonment has always been operative without a court order as long as no step in the prosecution or defense of the action interrupted the three-year abandonment period. However, the Article now confirms the defense may renounce abandonment after the expiration of the three-year term. This can occur if the defendant takes some action after expiration of the abandonment period that “clearly or directly” demonstrates his preference and intent to proceed with the litigation.^ 

When a matter has abandoned, a motion to dismiss now must be filed and accompanied by an affidavit.  The affidavit must show the expiration of the three-year period, no step has been taken in the prosecution or defense of the action in the past three years, and the defendant has not renounced the abandonment.  Accompanying the affidavit must be: a list of all pleadings, documents or judgments filed in the record during the three years preceding the date on which the abandonment period tolled, and a list of all written communications pertaining to the action between the mover and the adverse party or their attorney of record in the year preceding the date the abandonment period tolled. 

The court may set a contradictory hearing on the motion to dismiss if the affidavit identifies a filed document or written communication.  After the hearing or after being satisfied that a hearing is not warranted, the court may order the dismissal.  Regardless of whether a hearing is ordered or not, the court is called upon to make an equitable determination of whether the matter is abandoned or not.

If a motion to set aside a dismissal based on abandonment is advanced, then the burden of proof remains on the party claiming abandonment in the initial motion to dismiss to make the showing the case was abandoned. If the dismissal is set aside or reversed on appeal, it constitutes a step in the prosecution or defense of the matter. 

The amendments to Article 561 apply to motions to dismiss based upon abandonment filed on or after August 1, 2026.  Whether these amendments will alleviate litigation of enforcing the abandonment of an action remains to be seen. 

References:

La. Code of Civil Procedure art. 561 

Found. Elevation & Repair, LLC v. Miller,2024-00810 (La. 5/9/25), 408 So. 3d 893

Many in the construction industry favor arbitration and often include an arbitration clause in their contracts. Although best practice dictates that both parties sign the contract to eliminate doubt as to legal enforceability, in practice, one or both parties sometimes fail to sign. Instead, the parties show their mutual “meeting of the minds” that an agreement has been reached by performing and accepting the work. However, if a dispute arises, will an arbitration provision in an unsigned contract be enforced?

In Patriot Construction & Industrial, LLC v. Buquet& LeBlanc, Inc., when a dispute arose over the subcontractor’s work, the general contractor sought to invoke the arbitration clause in its standard subcontract. The subcontractor argued that the unsigned, red-lined subcontract its estimator had returned to the general contractor was not enforceable, and thus neither was the arbitration clause. The court found agreement on price and scope but found that no agreement was reached on the other terms because the estimator did not have authority to bind the subcontractor. Further, a provision in the contract required that changes be initialed by both parties, yet the subcontractor’s authorized agent had not initialed any of the changes.

The Court held that the arbitration clause was not binding. The Court emphasized that Louisiana law favors arbitration; however, it held “arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute to which he has not so agreed.” The question of who is bound by an arbitration agreement is determined from the intent of the parties as expressed in the terms of the contract. If the contract is deemed void because it was not properly confected, any arbitration clause contained therein may likewise be void. This may be true even where neither party objected to the arbitration clause per se.

Although the Patriot Court stated that generally, to be subject to arbitration, a party must be a signatory to the contract containing the arbitration clause, a signature is not a statutory requirement to enforce an arbitration clause. Louisiana’s arbitration statute, La. R.S.9:4201, requires only that the arbitration agreement be in writing. It does not require a signed contract. The jurisprudence is clear that the law does not require a signed agreement to arbitrate.  See Hurley v. Fox, holding that the defendant-architect’s motion to confirm the arbitration award could not be denied merely on the ground that the plaintiff-homeowner never signed the contract. See also Rainey v. Entergy Gulf States, Inc., in which the Louisiana Supreme Court held that a party who drafts a contract and presents it to another for signature cannot claim the contract is unenforceable because that party never signed the contract. Even where the parties contemplate that both parties will sign the contract to signify acceptance, a contract may nevertheless be valid without both signatures where the non-signing party has availed itself of the agreement or taken action evidencing its acceptance of it.*

However, the result hinges on the parties’ intent – as determined by the written agreement. For example, where the written contract expressly conditions validity on both signatures, a missing signature is likely fatal to the enforcement of any arbitration clause contained in the contract.  See Huckaba v. Ref-Chem, LP, in which the U.S. Fifth Circuit invalidated an arbitration provision in an employment contract where the employee signed it but the employer – who sought to enforce the arbitration clause – did not.

Also noteworthy, an arbitration clause in a contract signed by both parties may nonetheless be invalid where the court finds that fraud, duress, or other vice was involved in the formation of the contract such that one party did not truly consent to the contract terms. In the recent case Mapp, LLC v. Floor and Decor Outlets of America, Inc., the U.S. Fifth Circuit held that a contract was unenforceable because it was found to be adhesionary – it gave the owner, which had superior bargaining power, sole discretion to invoke arbitration.

In Carver Theater, LLC v. Melancon, another noteworthy case, an arbitration clause in a written contract signed by both parties was enforced by the Court and resulted in an arbitration award. However, it was later determined invalid – and the award was also invalidated –where the party that initially sought to enforce arbitration later changed its position and argued that the contract was invalid.  The Court invalidated the arbitration award under the Louisiana arbitration statute, finding that the award was procured using “undue means.” In seeking to compel arbitration, the party argued that the contract was valid and required arbitration. Once in arbitration, that same party argued that the contract was invalid. This misrepresentation to the Court satisfied the statute’s narrow grounds for invalidating an arbitration award.**

As a final consideration, non-signatories such as subcontractors or sureties may be compelled to arbitrate where their subcontract or bond incorporates by reference the contract containing the arbitration clause and where the language in that arbitration clause is sufficiently broad, for example – any controversy or claim arising out of or related to the contract. See The Jewish Federation of Greater New Orleans, et al. v. Fidelity & Deposit Company of Maryland, holding that the surety was bound by the arbitration clause in the construction contract because its bond incorporated it by reference, even on its counterclaim for declaratory relief based on a defense that the performance bond had lapsed.

* See Harp v. Succession of Bryan, 2019-0062 (La.App. 1 Cir. 9/3/20), 313 So.3d 284; La. Civil Code art. 1927.

** La. R.S.9:4210(A).

References:

PatriotConstruction & Industrial, LLC v. Buquet & LeBlanc, Inc., 2023-557 (La. App. 3 Cir. 4/24/24), 387So.3d 784.

Hurley v. Fox, 520 So.2d 467 (La. App. 4 Cir. 1988).

Rainey v. Entergy Gulf States, Inc., 2009-572 (La.3/16/10), 35 So.3d 215.

Huckaba v. Ref-Chem, LP, 892 F.3d 686 (5th Cir.2018).

Mapp, LLC v. Floor and Decor Outlets of America, Inc., 2026WL 2265969, 25-30536 (5th Cir. 2026).

Carver Theater, LLC v. Melancon, 2024-0468 (La. App.4 Cir. 5/5/25), 417 So.3d 676. The court determined that the FederalArbitration Act and its severability doctrine did not apply in this case. Theresults may have been different under the FAA.

The Jewish Federation of Greater New Orleans, etal.  v. Fidelity & Deposit Company of Maryland, 273 F.3d 1094,2001 WL 1085096 (5th Cir. 2001) (unpublished).

Keogh Cox is proud to announce our six partners who have been recognized in the 2027 Best Lawyers in America® list: John P. Wolff, Andrew Blanchfield, Kirk L. Landry, Edward F. Stauss, Christopher K. Jones, and Richard W. Wolff as well as partner Brandi A. Barze who was named to the 2027 Best Lawyers: Ones to Watch in America® list. 

Lawyers on the Best Lawyers in America® list are divided by geographic region practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to make sure they are in current practice and good standing.

This recognition demonstrates the caliber of work and commitment to excellence that define Keogh Cox and its attorneys.