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First Bank and Trust v. Proctor's Cove II, LLC

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

FIRST BANK AND TRUST
v.
PROCTOR'S COVE II, LLC, MILTON GAGNON AND MICHAEL J. THOMPSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 641-536, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, FIRST BANK AND TRUST MARK C. LANDRY

          COUNSEL FOR DEFENDANT/APPELLEE, PROCTOR'S COVE II, LLC AND MICHAEL J. THOMPSON BRADFORD H. WALKER

          COUNSEL FOR DEFENDANT/APPELLEE, REPRESENTATIVE OF THE ESTATE OF MILTON GAGNON, SUCCESSION OF MILTON GAGNON KEITH PAUL GAGNON

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         HJL

         FHW

         JGG

         Plaintiff, First Bank and Trust ("First Bank"), and non-party, Keith Gagnon, as "succession representative" for "The Estate of Milton Gagnon," appeal the trial court's judgments denying their requests to set aside an ex parte order dismissing First Bank's lawsuit as abandoned and dismissing plaintiff's claims without prejudice. For the reasons stated more fully below, we affirm the trial court's judgment to the extent it denied the motion to set aside the dismissal with respect to First Bank's claims against defendants, Proctor's Cove II, L.L.C. (Proctor's Cove") and Michael J. Thompson. First Bank claims against these defendants are abandoned, and these defendants have not engaged in any conduct that waived abandonment.

         However, we reverse the judgment to the extent it dismissed First Bank's claims against defendant, Milton Gagnon, because he passed away during the pendency of these proceedings in the trial court and a representative was not substituted as his legal successor prior to the entry of the order of dismissal. As discussed more fully below, a judgment rendered in favor of or against a deceased party is an absolute nullity as to that party.[1] Consequently, the portion of the judgment dismissing First Bank's claims against the decedent, Milton Gagnon, is reversed as an absolute nullity.

         FACTUAL AND PROCEDURAL BACKGROUND

         This is the third appeal in this matter, which involves a long procedural history.[2] The current appeal involves issues arising out of whether the trial court erred by dismissing First Bank's lawsuit on grounds of abandonment. Therefore, we limit our discussion to the facts and procedural history pertinent to the abandonment issues.

         This matter arises out of a promissory note executed by defendant, Proctor's Cove, and personally guaranteed by defendants, Milton Gagnon and Michael Thompson. On July 27, 2004, Proctor's Cove executed a promissory note in favor of First Bank in the principal amount of $550, 000. The promissory note was secured by a mortgage on property owned by Proctor's Cove. Milton Gagnon and Michael Thompson each executed a written guaranty. On February 9, 2007, First Bank filed a lawsuit against Proctor's Cove, Milton Gagnon and Michael Thompson, alleging that they defaulted on the promissory note and owed a principal sum of $298, 340.45, plus interest, attorney's fees and costs. First Bank amended its lawsuit on September 8, 2008 to allege that the principal sum owed was $70, 706.10, plus interest, attorney's fees and costs.

         On November 4, 2011, First Bank filed a Motion to Prohibit Preparation or Filing of Pleadings by Non-Attorney. In the motion, First Bank alleged Keith Gagnon, who was not a party to the proceedings, was a non-attorney filing pleadings on behalf of Proctor's Cove and was in violation of La. R.S. 37:213.[3]On December 13, 2011, Proctor's Cove, through Keith Gagnon, filed a Motion to Compel Court to Comply with the Model Code of Judicial Conduct or Motion to Recuse the Trial Judge. Proctor's Cove also filed a Motion to Stay Proceedings pending the resolution of the motion to recuse on December 13, 2011. On December 19, 2011, the trial court struck all pleadings filed by Keith Gagnon and advised Proctor's Cove to retain counsel. The trial court also rendered a judgment on January 11, 2012, granting First Bank's motion to prohibit the filing of pleadings by a non-attorney on behalf of Proctor's Cove.

         On August 16, 2012, First Bank filed a motion for summary judgment against Milton Gagnon to recover the debt allegedly owed under the promissory note. First Bank also filed a similar summary judgment motion against Proctor's Cove and Michael Thompson on January 24, 2013. On March 13, 2013, the trial court granted summary judgment against Michael Thompson and Milton Gagnon, and awarded First Bank $70, 706.10, plus interest, late charges, attorney's fees and costs. Two months later, on May 3, 2013, the trial court entered a similar judgment in favor of First Bank and against Proctor's Cove. Defendants appealed both of these judgments, as well as the trial court's decision to strike the motion to recuse filed by Keith Gagnon on behalf of Proctor's Cove.

         In a decision rendered on September 24, 2014, this Court affirmed the trial court's decision to strike the motion to recuse. See First Bank & Trust v. Proctor's Cove II, L.L.C., 13-802 (La.App. 5 Cir. 9/24/14), 150 So.3d 418, writ denied, 14-2236 (La. 1/9/15), 157 So.3d 1110. This Court also reversed the trial court's granting of the motions for summary judgment in favor of First Bank, based on our finding that the trial court improperly considered documents not entered into evidence in rendering these judgments, and we remanded the matter to the trial court for further proceedings.

         Less than two weeks later on October 6, 2014, First Bank filed a motion to reset its summary judgment motions for hearing before the trial court so it could offer its supporting documents into evidence. The trial court reset the motions for hearing on November 24, 2014. On or about October 24, 2014, defendants, Proctor's Cove and Milton Gagnon, filed an application for a writ of certiorari with the Louisiana Supreme Court, seeking review of this Court's ruling. On November 24, 2014, these defendants filed a motion to quash the resetting of the summary judgment motions, arguing this Court's opinion rendered on September 24, 2014 was not final due to the pending writ application. The minute entry from the November 24, 2014 hearing date indicates the summary judgment motions were continued without date.

         On January 9, 2015, the Louisiana Supreme Court denied Proctor's Cove writ application. On March 10, 2015, First Bank filed a motion to reset its summary judgment motions for hearing on May 27, 2015, in order to allow the parties to conduct depositions prior to the hearing, which the trial court granted.

         On May 19, 2015, attorney Bradford Walker moved to enroll as co-counsel for Proctor's Cove and Milton Gagnon, and on the same day, he filed an opposition on behalf of his clients in response to First Bank's motions for summary judgment. On May 27, 2015, the clerk of court entered a minute entry into the record continuing the hearing on the summary judgment motion without date. The last document filed into the record in 2015 was a copy of this Court's September 24, 2014 opinion filed on May 29, 2015. It is unclear who filed this Court's opinion into the record or why it was filed at that time.

         The matter remained dormant until May 29, 2018, when Keith Gagnon filed a Motion to Tax Costs on behalf of the "Estate of Milton Gagnon." In the signature block, Keith Gagnon indicated that he was a "co-executor." [4] Keith Gagnon did not include an order or rule to show cause with the Motion to Tax Costs. He also failed to file a motion seeking to be substituted as the legal successor for the decedent, Milton Gagnon, pursuant to La. C.C.P. art. 801, prior to filing the Motion to Tax Costs.

         On June 19, 2018, defendant, Proctor's Cove, filed an Ex Parte Motion to Dismiss Based Upon Abandonment, arguing that the last step in the matter was the filing of this Court's decision into the record on May 29, 2015, and that no further steps were taken in the matter for three years thereafter. Proctor's Cove's motion did not mention the Motion to Tax Costs filed by Keith Gagnon. The trial court granted the ex parte order of dismissal on June 21, 2018, and dismissed First Bank's lawsuit with prejudice.

         On July 18, 2018, an order to set the Motion to Tax Costs for hearing was filed into the record and the trial court set the matter for hearing on August 17, 2018. On August 16, 2018, Keith Gagnon filed a request to continue this hearing without date, which the trial court granted. On that same day, Keith Gagnon filed a Motion to Set Aside Dismissal arguing that the Motion to Tax Costs interrupted the three-year abandonment period.[5] He further argued that the attorney who filed the Ex Parte Motion to Dismiss did not have "authorization or consent" from ...


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