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Talen v. Rhino Rhencovators, LLC

Court of Appeals of Louisiana, Third Circuit

October 2, 2019

CHARLES R. TALEN, II
v.
RHINO RHENCOVATORS, LLC, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2014-101 HONORABLE DAVID RITCHIE, DISTRICT JUDGE

          Jeff E. Townsend, Jr. COUNSEL FOR PLAINTIFF/APPELLANT: Charles R. Talen, Jr.

          H. Alan McCall Stephen D. Polito Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE: Rhino Rhenovators, LLC

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION JUDGE

         FACTS AND PROCEDURAL HISTORY

         On 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.

         On 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.

         Service 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.

         Following 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.

         On 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 for Abandonment.

         This 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.

         ANALYSIS

         Louisiana Code of Civil Procedure Article 561 governs the abandonment of ...


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