Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 516431 Honorable
Craig Owen Marcotte, Judge
WINCHELL & JOSEPH, LLC By: Mary Ellen Winchell Counsel
DEUTSCH, KERRIGAN & STILES By: Jonathan Michael Walsh
Counsel for Appellee
PITMAN, COX, and STEPHENS, JJ.
Timothy Martin, appeals a judgment by the First Judicial
District Court, Parish of Caddo, State of Louisiana, in favor
of defendant, National City Mortgage Company, granting its
motion to dismiss on the grounds of abandonment. For the
following reasons, we affirm the trial court's judgment.
AND PROCEDURAL HISTORY
Martin and National City Mortgage Company ("National
City") entered into a construction loan agreement on
February 11, 2004, for a log cabin home of which Martin was
to serve as both builder and general contractor. Martin and
National City subsequently disagreed regarding the
disbursement of funds under the loan agreement and the
interpretation of the terms of the agreement. Martin filed
suit against National City on November 2, 2007, for breach of
contract and violations of the Louisiana Unfair Trade
Practices Act ("LUTPA"). After multiple scheduling
orders and joint motions to continue trial, National City
filed a motion for summary judgment on November 27, 2013.
March 21, 2014, the trial court granted the motion as to the
LUPTA claims and denied the motion as to the breach of
contract claims. That same day, National City filed its
notice of intent to seek a supervisory writ, the order for
which was signed by the trial court on March 24, 2014.
court denied National City's writ application on March
29, 2014. Thereafter, National City applied for a writ of
certiorari with the supreme court on June 27, 2014, which was
denied on October 3, 2014. No further activity occurred in the
suit until September 29, 2017, when Martin filed a request to
schedule a status conference and issued a notice of
deposition to National City to depose its expert.
October 25, 2017, National City filed an ex parte motion and
order to dismiss the suit as abandoned. In compliance with
La. C.C.P. art. 561, National City submitted with its motion
and order an affidavit of its counsel of record attesting
that no step in the prosecution or defense of the action had
taken place during the three-year abandonment period. Martin
filed written opposition to National City's motion on
November 2, 2017.
January 23, 2018, the trial court issued a written ruling
granting National City's motion. It held that the last
step taken in the prosecution or defense of this action
occurred when National City filed its notice of intent to
seek supervisory writs on March 21, 2014, and that the action
was, thus, abandoned. This appeal by Martin ensued.
sole issue is whether this action was properly dismissed as
abandoned pursuant to
La. C. C. P. ...