APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2010-04501, DIVISION "L-6"
Honorable Kern A. Reese, Judge
A. ZITLER COUNSEL FOR RELATOR /DEFENDANT
J. LEGROS NEWMAN, MATHIS, BRADY AND SPEDALE LLC COUNSEL FOR
FRITCHIE III IRWIN, FRITCHIE, URQUHART, & MOORE, LLC
COUNSEL FOR RESPONDENT/THIRD-PARTY DEFENDANT
composed of Judge Daniel L. Dysart, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown,
A. BROWN JUDGE
instant dispute arises from a petition for a deficiency
Whitney National Bank ("Whitney Bank") held two
promissory notes in favor of Relators/Defendants, Gary C.
Landrieu and Maria Cortes Landrieu (collectively referred to
as the "Landrieus"). Whitney Bank alleges that the
Landrieus executed a collateral mortgage note as security for
the promissory notes and the Landrieus encumbered their
property, which included "a developed parcel on the 300
block of Chartres" (the "Property") located in
New Orleans, Louisiana. Respondents/Third-Party Defendant,
H.O.D.C., L.L.C., d/b/a Keller Williams Realty of New Orleans
("Keller Williams") was hired by the Landrieus to
sell the Property.
the Landrieus could sell the Property, Whitney Bank
foreclosed on it. The Property was sold in 2010 at a
sheriff's sale pursuant to a writ of seizure and sale. In
2017, Whiney Bank filed a "Petition for Deficiency
Judgment" and a supplemental petition, against the
Landrieus alleging that the sales proceeds from the Property
were insufficient to satisfy the Landrieus' obligations.
In response, the Landrieus filed, collectively, an answer to
the petition, exceptions, and affirmative defenses; a
reconventional demand arising in tort against Whitney Bank;
and a third-party demand arising in tort and breach of
contract against Keller Williams.
Williams filed a peremptory exception of prescription as to
claims asserted by the Landrieus' in their Third-Party
Demand. A hearing was held, and a judgment was rendered on
November 9, 2017 in favor of Keller Williams, in part, and
against the Landrieus. The judgment dismissed, with
prejudice, all tort claims asserted in the Landrieus'
third-party demand. The Landrieus filed a motion for new trial
requesting the district court to reconsider that portion of
the November 9, 2017 judgment granting the exception of
prescription. A hearing was held on December 15, 2017. On
December 28, 2017, the district court rendered judgment and
denied the Landrieus' motion. On March 13, 2018, the
Landrieus filed, in the district court, a notice of intent to
seek review in this Court.
Bank filed peremptory exceptions of no cause of action and
prescription as to the Landrieus' reconventional demand.
A hearing was held on December 15, 2017, and a judgment was
rendered on December 22, 2017. In this judgment, the district
court denied both exceptions. On January 4, 2018, Whitney
Bank filed a motion for new trial. Whitney Bank requested the
district court to reconsider the December 22, 2017 judgment
only as to the exception of prescription. A hearing on the
motion for new trial was held on April 6, 2018. On April 18,
2018, the district court rendered a judgment dismissing with
prejudice all tort claims asserted against Whitney Bank. The
Landrieus timely sought review by this Court.
Landrieus seek review of both judgments-the December 28, 2017
judgment denying the Landrieus' motion for new trial and
the April 18, 2018 judgment granting Whitney Bank's
motion for new trial. We will address each judgment
of motion for new trial (Landrieus)
Landrieus argue the district court erred in denying their
motion for new trial to reconsider the granting of Keller
Williams' exception of prescription as to all tort
claims. The Landrieus contend these claims, although
prescribed, can be urged as defenses ...