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Whitney National Bank v. Landrieu

Court of Appeals of Louisiana, Fourth Circuit

June 27, 2018

WHITNEY NATIONAL BANK
v.
GARY C. LANDRIEU AND MARIA CORTES LANDRIEU

          APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-04501, DIVISION "L-6" Honorable Kern A. Reese, Judge

          JUSTIN A. ZITLER COUNSEL FOR RELATOR /DEFENDANT

          CLAY J. LEGROS NEWMAN, MATHIS, BRADY AND SPEDALE LLC COUNSEL FOR RESPONDENT/PLAINTIFF

          GUS A. FRITCHIE III IRWIN, FRITCHIE, URQUHART, & MOORE, LLC COUNSEL FOR RESPONDENT/THIRD-PARTY DEFENDANT

          Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown,

          PAULA A. BROWN JUDGE

         The instant dispute arises from a petition for a deficiency judgment.

         Respondent/Plaintiff, 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.

         Before 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.

         Keller 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.[1] 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.

         Whitney 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.

         The 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 separately.[2]

         Denial of motion for new trial (Landrieus)

         The 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 ...


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