Hibernia National Bank v. Aero-Mech, Inc.

215 So. 3d 350, 2016 WL 4126143, 2016 La. App. LEXIS 1476
CourtLouisiana Court of Appeal
DecidedAugust 3, 2016
DocketNo. 50,608-CA
StatusPublished
Cited by3 cases

This text of 215 So. 3d 350 (Hibernia National Bank v. Aero-Mech, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hibernia National Bank v. Aero-Mech, Inc., 215 So. 3d 350, 2016 WL 4126143, 2016 La. App. LEXIS 1476 (La. Ct. App. 2016).

Opinion

DREW, J.

hGary Holloway appeals a judgment granting a motion to set aside an order of dismissal for abandonment in his favor.

After converting this appeal to an application for a supervisory writ and granting the writ, we affirm the judgment.

FACTS

On September 3, 2003, Hibernia National Bank confirmed a default judgment in Natchitoches Parish against Aero-Mech, Inc., Signs & Banners, LLC, and Gary Glen Holloway, d/b/a Signs & Banners. This judgment was revived on April 16, 2013.

In 2005, the judgment was assigned to Cadleway Properties, Inc., which was substituted as party plaintiff the next year. Two years later, the judgment was assigned to CadleRock Joint Venture II, L.P. (“CadleRock”), which became party plaintiff.

On February 7, 2011, CadleRock filed a petition in Red River Parish to make the judgment executory. CadleRock asserted that it had reason to believe that Popsie’s Carwash, LLC, Coushatta Hospitality, LLC, and Silver Dollar Liquor, LLC, possessed assets of Holloway’s that were subject to garnishment or a charging order. On that same date, a request for a writ of fieri facias against Aero-Mech, Signs & [352]*352Banners, and Holloway, d/b/a Signs and Banners, was filed into the record.

In addition, on February 7, 2011, Cad-leRock filed a supplemental petition in which it prayed that Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor be made garnishees. On February 10,2011, the trial court ordered them to be made garnishees.

|aThe trial court entered a charging order on February 7, 2011, demanding that Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor pay any sums due to Holloway arising from his ownership interest in the companies.

On November 30, 2011, CadleRock filed a motion for accounting against Popsie’s Carwash, Coushatta Hospitality, and Silver Dollar Liquor, ordering them to account to CadleRock for all sums paid to Holloway from the date each was served with the charging order.

On January 9, 2012, CadleRock supplemented its petition to make GE & H Group a garnishee, which the court ordered done on that date.

On January 26, 2012, the trial court entered an order that, pursuant to the writ of fieri facias issued earlier, the Sheriff of Red River Parish was authorized to sell Holloway’s one-third membership interest in Coushatta Hospitality and his one-fourth membership interest in Silver Dollar Liquor.

On February 17, 2012, Silver Dollar Liquor sought an injunction preventing the sheriff from proceeding with the seizure and sale of Holloway’s one-fourth membership in Silver Dollar. Also on that date, Robert Bethard filed a petition for intervention and a motion for a temporary restraining order. He asserted that Holloway did not own a one-third interest in Coushatta Hospitality as that interest had been transferred to Bethard prior to the filing of the motion to seize Holloway’s interest in Coushatta Hospitality. He sought a recognition of his ownership of the one-third interest in Coushatta Hospitality formerly owned by Holloway, and injunctive relief prohibiting the Sheriff from seizing and selling that Lone-third interest. The trial court granted temporary restraining orders on February 27, with the orders set to expire on March 15, 2012.

On March 8, 2012, CadleRock filed an exception of no cause of action to the temporary restraining orders obtained by Silver Dollar and Bethard. On that same date, CadleRock also filed a motion to compel discovery against GE & H Group and Popsie’s Carwash, with the hearing set for May 3, 2012.

On March 8, 2012, CadleRock filed a rule for judgment pro confesso against GE & H Group as a garnishee on the grounds that it failed to file answers to garnishment interrogatories. GE & H Group was ordered to show cause on May 3, 2012, why judgment should not be rendered against them for the full amount due under the judgment rendered against Holloway.

On May 5, 2015, Holloway filed a motion to dismiss the suit for abandonment on the ground that no steps in its prosecution or defense had been taken since May 3, 2012. On May 7, 2015, an order was signed dismissing the suit.

On May 20, 2015, CadleRock filed a motion to set aside the dismissal. CadleR-ock contended that the matter could not be dismissed based on abandonment because the matter had been reduced to judgment. In his memo in opposition to the motion, Holloway argued that the validity of the judgment and whether CadleRock could seize assets of Holloway’s was not the issue before the court. Instead, the issue was whether a contested seizure could be [353]*353abandoned in accordance with La. C.C.P. art. 561. He argued that CadleRock could still seize assets of Holloway’s to satisfy the judgment, but |4the seizure of Holloway’s alleged interest in Coushatta Hospitality had been abandoned.

On July 8, 2015, the court entered judgment granting the motion to set aside the dismissal. Holloway filed a motion for appeal on August 3, 2015.

DISCUSSION

Appellate jurisdiction

After the appeal was lodged, this court ordered the parties to show cause why the appeal should not be dismissed since the judgment that was appealed was not a final judgment. A judgment vacating a judgment of dismissal under La. C.C.P. art. 561 is an interlocutory judgment. La. C.C.P. arts. 1841 and 2083(C); Brown v. City of Shreveport Urban Dev., 34,657 (La.App.2d Cir.5/9/01), 786 So.2d 253. Following the parties’ responses, this court elected to refer the issue to the merits of the appeal.

CadleRock concedes that because a final judgment has already been entered in this matter, there will never be a subsequent final judgment from which Holloway could appeal.

The jurisprudence indicates that the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts. Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34. Accordingly, after consideration of the matter, we convert the appeal to an application for a supervisory writ, and grant the writ.

Abandonment

La. C.C.P. art. 561(A)(1) states that “[a]n action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to | stake any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding!/]”

Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana Dept. of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La.12/6/11), 79 So.3d 978.

Holloway argues that Art. 561 applies to the seizure of Holloway’s former interest in Coushatta Hospitality because the only exception to the article is for a succession proceeding. He asserts that the “action” in this matter would be the filing by CadleRock to enforce its legal right to collect on a judgment issued in a separate proceeding.

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215 So. 3d 350, 2016 WL 4126143, 2016 La. App. LEXIS 1476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibernia-national-bank-v-aero-mech-inc-lactapp-2016.