CHARLES R. TALEN, II
RHINO RHENCOVATORS, LLC, ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2014-101 HONORABLE DAVID RITCHIE, DISTRICT
E. Townsend, Jr. COUNSEL FOR PLAINTIFF/APPELLANT: Charles R.
Alan McCall Stephen D. Polito Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P. COUNSEL FOR
DEFENDANT/APPELLEE: Rhino Rhenovators, LLC
composed of Sylvia R. Cooks, Shannon J. Gremillion, and D.
Kent Savoie, Judges.
SHANNON J. GREMILLION JUDGE
AND PROCEDURAL HISTORY
January 6, 2014, Plaintiff, Charles R. Talen, II, filed a
Petition for Damages against Defendants, Rhino Rhenovators,
LLC and Old Treme Builders, LLC. It was alleged by Plaintiff
that he incurred damages as a result of alleged defects in a
house built by Rhino and purchased from Old Treme.
February 12, 2014, Defendants filed a Dilatory Exception of
Prematurity and a Peremptory Exception of No Cause of Action
based on Plaintiff's failure to comply with the New Home
Warranty Act. On May 7, 2014, before the hearing on the
exceptions, Plaintiff filed an amended petition and requested
the Calcasieu Parish Clerk of Court serve the petition on
Defendants. On May 12, 2014, Plaintiff and Defendants
informed the trial court they had agreed to pass the hearing
on the exceptions scheduled for May 14, 2014. On that date,
the parties had a physical inspection of the home performed.
of the amended pleading was delayed because Mr. Talen failed
to advance court costs. Notice of the failure to pay the
requisite court costs was sent to Mr. Talen on four separate
occasions. Eleven months later, on April 15, 2015, the
amended petition was served on Defendants.
the May 2014 inspection, Defendants assert, Mr. Talen took no
further steps in the litigation for three years. Defendants
acknowledge that the parties engaged in "[s]ome informal
settlement negotiations" during the period in question,
but no additional pleadings were filed or formal discovery
performed during this period. Therefore, Defendants maintain,
the action was abandoned as a matter of law on May 15, 2017.
January 26, 2018, Rhino obtained an ex parte judgment
granting its Motion to Dismiss on Abandonment. On January 30,
2018, Mr. Talen attempted to set aside the Court's order,
filing an "Opposition to the Motion to Dismiss or in the
Alternative, Motion for Rehearing." On May 7, 2018, Mr.
Talen filed a "Motion and Order to Fix for
Rehearing." The trial court conducted a hearing on its
judgment granting the Motion to Dismiss on Abandonment on
June 27, 2018. Evidence and arguments were presented by the
parties, and after taking the matter under advisement, the
trial court denied Mr. Talen's Motion to Vacate Dismissal
appeal followed, and Mr. Talen asserts the following
assignment of error:
The trial court erred in ruling that the filing of an Amended
Petition by Plaintiff on May 7, 2014, which contained a
request for service and the actual service on the attorney of
record for Defendants of Citation and Petition on April 15,
2015, was not a step in prosecution.
Code of Civil Procedure Article 561 governs the abandonment