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Taylor v. Dash Equipment & Supplies, Inc.

Court of Appeals of Louisiana, Third Circuit

November 7, 2018

BROOKS TAYLOR
v.
DASH EQUIPMENT & SUPPLIES, INC., ET AL.

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 71590 HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

          Robert M. Francez Voorhies & Labbe COUNSEL FOR PLAINTIFF/APPELLANT: Brooks Taylor

          Adam G. Young Meade Young, LLC COUNSEL FOR DEFENDANT/APPELLEE: David Duplechin

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          CANDYCE G. PERRET JUDGE.

         This is an appeal by plaintiff, Brooks Taylor (Mr. Taylor), of an order dismissing his claims against defendant, David Duplechin (Mr. Duplechin), on grounds of abandonment. For the following reasons, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY:

         On August 9, 2006, Mr. Taylor loaned Dash Equipment & Supplies, Inc. (Dash) and Mr. Duplechin (hereinafter collectively "Defendants") $18, 000.00 dollars with the promissory note providing, in relevant part:

FOR VALUE RECEIVED, the undersigned promises to pay, at the earlier of November 9, 2006 or when Ace Machine, Inc. pays for services currently being rendered by Dash . . . to Brooks Taylor the sum of EIGHTEEN THOUSAND AND N0/100 ($18, 000.00) DOLLARS, plus an additional sum of Nine Thousand and No/100ths ($9, 000.00) as interest.
Both principal and interest shall be payable . . . to Brooks Taylor . . . .
In case this note should be placed in the hands of attorneys-at-law for the filing of foreclosure proceedings, to protect the rights of the holder hereof or to enforce any of the agreements contained in this note or in the act of mortgage with which this note is identified, the undersigned herein and hereby agrees to pay the reasonable fees of the attorneys-at-law who may be employed for such purposes.

         Following a meeting on October 10, 2006, Defendants signed a document noting that they were unable to pay the promissory note and agreed to extend the August 9, 2006 contract for thirty days. This October 10th agreement also stated that "THE CONTRACT WILL BE ACCESSED [sic] A FEE OF $100.00 PER DAY OR UNTIL PAID. SCHEDULE EXPIRATION IS NOVEMBER 9, 2006."

         On January 24, 2007, Mr. Taylor filed suit against Defendants on the promissory note seeking the principal balance owed, interest, and a $100 per day fee. On February 5, 2010, Mr. Taylor filed a Motion and Order for Summary Judgment alleging that there are no genuine issues of material fact and that Defendants owe him $18, 000.00 dollars, "together with interest of $9, 000.00 plus legal interest from the date of the judicial demand, until paid, plus an assessment fee of $100.00 per day from October 10, 2006, until paid, for reasonable attorney's fees to be set by this court, and . . . costs of these proceedings . . . ."

         On April 11, 2013, after a hearing, the trial court granted a partial summary judgment in favor of Mr. Taylor for the principal amount of the note plus interests and all costs of the proceedings to date. The trial court denied the rest of Mr. Taylor's motion for summary judgment reserving the issues of the $100.00 assessment fee per day and attorney's fees for a trial on the merits, which was scheduled for September 4, 2013. Thereafter, the trial court granted Mr. Taylor's Unopposed Motion and Order to Continue and Reset Trial Date to December 11, 2013.

         On December 2, 2013, Defendants filed a Motion for Summary Judgment alleging that no additional fees are owed under either the August 9, 2006 promissory note or the October 10, 2006 agreement extending the note. Although Mr. Taylor notes in his appellate brief that the trial court denied Defendants' Motion for Summary Judgment, the record is void of this ruling.[1]

         On December 12, 2013, the trial court granted Defendants' Amended, Unopposed Motion to Continue Trial and, per the parties' request, set a new trial date of February 20, 2014. On February 21, 2014, the trial court granted Mr. Taylor's Unopposed Motion and Order to Continue Trial and ordered that trial "be reset at a later date."

         On July 15, 2016, Mr. Taylor served Interrogatories and Request for Production of Documents on each of the Defendants. Although the instructions in both sets of discovery requests properly identify the Defendants as either "Dash" or "Mr. Duplechin", the discovery requests mistakenly define "you" or "yours" as "Defendant, SEAL INVESTMENTS GROUP, LLC, or all representatives or other persons acting on his behalf or request." Nonetheless, the instructions in the requests for production of documents sought the following information from Dash and Mr. Duplechin:

REQUEST FOR PRODUCTION NO. 1:
Please produce copies of your 2006, 2007, 2008, 2009, 2010, and 2011 federal income tax returns.
REQUEST FOR PRODUCTION NO. 2:
Please produce copies of all of your 2006, 2007, 2008, 2009, 2010, and 2011 checking account statements from all banks, credit ...

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