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A & B Bolt & Supply, Inc. v. Whitco Supply, L.L.C.

Court of Appeal of Louisiana, Third Circuit

March 18, 2015

A & B BOLT & SUPPLY, INC.
v.
WHITCO SUPPLY, L.L.C., ET AL

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C-20033999. HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE.

REVERSED.

Timothy W. Basden, Alan K. Breaud, Breaud & Meyers, Lafayette, LA, COUNSEL FOR PLAINTIFF/APPELLANT: A & B Bolt & Supply, Inc.

Gerald C. deLaunay, Perrin, Landry, deLauney, Dartez & Ouellet, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: David S. Dawes.

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

OPINION

Page 968

[14-994 La.App. 3 Cir. 1] SHANNON J. GREMILLION, Judge.

The plaintiff, A & B Bolt & Supply, Inc., appeals the trial court's judgment dismissing its lawsuit as abandoned. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit involves the enforcement of a non-compete agreement entered into in 2001 by David S. Dawes, a former employee of A & B Bolt, who left and created a competitive company, Whitco. A & B Bolt filed a petition for temporary restraining order, preliminary and permanent injunctions, and damages against Dawes and Whitco. Extensive litigation occurred over the next ten years, with four appeals to this court and the same number of writs filed with the supreme court, with the most recent writ denial by the supreme court occurring on January 7, 2011. See A & B Bolt & Supply, Inc. v. Dawes, 10-492 (La.App. 3 Cir. 10/13/10), 49 So.3d 964, writ denied, 10-2563 (La. 1/7/11), 52 So.3d 888. The substance of that appeal was the affirmation of the trial court's December 14, 2009 judgment in favor of Whitco dismissing it from the suit. The motion for summary judgment in favor of Dawes was denied.

On July 27, 2012, Whitco filed a motion to fix and tax costs.[1] On September 18, 2012, A & B Bolt filed a memorandum in opposition. On that same day, Whitco filed a reply memorandum into the record. Following a September 24, 2012 hearing, the trial court denied the motion, ordering that the determination of court costs would be handled at the conclusion of the case between A & B Bolt and Dawes.

On February 6, 2014, Dawes filed an ex parte motion to dismiss for abandonment. The trial court signed the order ex parte on February 10, 2014, and [14-994 La.App. 3 Cir. 2] dismissed the case against Dawes as abandoned. A & B Bolt was served with the order dismissing the case on March 31, 2014. That same day, A & B Bolt filed a motion to set aside ex parte order of abandonment. Following

Page 969

a hearing on the motion on May 19, 2014, the trial court denied the motion. Appellant timely appealed and now argues that the trial court erred in dismissing its case as abandoned, as numerous actions constituted " steps" sufficient to ...


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