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Martin v. National City Mortgage Co.

Court of Appeals of Louisiana, Second Circuit

November 14, 2018

TIMOTHY MARTIN Plaintiff-Appellant
v.
NATIONAL CITY MORTGAGE COMPANY Defendant-Appellee

          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 for Appellant

          DEUTSCH, KERRIGAN & STILES By: Jonathan Michael Walsh Counsel for Appellee

          Before PITMAN, COX, and STEPHENS, JJ.

          STEPHENS, J.

         Plaintiff, 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.

         FACTS AND PROCEDURAL HISTORY

         Timothy 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.

         On 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.

         This 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.[1] 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.

         On 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.

         On 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.[2] This appeal by Martin ensued.

         DISCUSSION

         The sole issue is whether this action was properly dismissed as abandoned pursuant to La. C. C. P. ...


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