Hibernia Nat'l Bank v. Aero-Mech, Inc.

• Decision Date: 03 August 2016
• Docket Number: No. 50,608–CA.,50,608–CA.
• Court: Court of Appeal of Louisiana — District of US
• Parties: HIBERNIA NATIONAL BANK, Plaintiff–Appellee, v. AERO–MECH, INC. Signs & Banners LLC & Gary Glen Holloway d/b/a Signs & Banners, Defendant–Appellant.

215 So.3d 350

HIBERNIA NATIONAL BANK, Plaintiff–Appellee,
v.
AERO–MECH, INC. Signs & Banners LLC & Gary Glen Holloway d/b/a Signs & Banners, Defendant–Appellant.

No. 50,608–CA.

Court of Appeal of Louisiana, Second Circuit.

Aug. 3, 2016.

215 So.3d 351

Bethard & Bethard, L.L.P. by Robert E. Bethard, Coushatta, LA, for Appellant.

Newman, Mathis, Brady & Spedale by Mark Christopher Landry, Metairie, LA, John Arthur Brittain, Natchitoches, LA, for Appellee.

Before CARAWAY, DREW & LOLLEY, JJ.

DREW, J.

Gary Holloway appeals a judgment granting a motion to set aside an order of dismissal for abandonment in his favor.

After converting this appeal to an application for a supervisory writ and granting the writ, we affirm the judgment.

FACTS

On September 3, 2003, Hibernia National Bank confirmed a default judgment in Natchitoches Parish against Aero–Mech, Inc., Signs & Banners, LLC, and Gary Glen Holloway, d/b/a Signs & Banners. This judgment was revived on April 16, 2013.

In 2005, the judgment was assigned to Cadleway Properties, Inc., which was substituted as party plaintiff the next year. Two years later, the judgment was assigned to CadleRock Joint Venture II, L.P. ("CadleRock"), which became party plaintiff.

On February 7, 2011, CadleRock filed a petition in Red River Parish to make the judgment executory. CadleRock asserted that it had reason to believe that Popsie's Carwash, LLC, Coushatta Hospitality, LLC, and Silver Dollar Liquor, LLC, possessed assets of Holloway's that were subject to garnishment or a charging order. On that same date, a request for a writ of fieri facias against Aero–Mech, Signs &

215 So.3d 352

Banners, and Holloway, d/b/a Signs and Banners, was filed into the record.

In addition, on February 7, 2011, CadleRock filed a supplemental petition in which it prayed that Popsie's Carwash, Coushatta Hospitality, and Silver Dollar Liquor be made garnishees. On February 10, 2011, the trial court ordered them to be made garnishees.

The trial court entered a charging order on February 7, 2011, demanding that Popsie's Carwash, Coushatta Hospitality, and Silver Dollar Liquor pay any sums due to Holloway arising from his ownership interest in the companies.

On November 30, 2011, CadleRock filed a motion for accounting against Popsie's Carwash, Coushatta Hospitality, and Silver Dollar Liquor, ordering them to account to CadleRock for all sums paid to Holloway from the date each was served with the charging order.

On January 9, 2012, CadleRock supplemented its petition to make GE & H Group a garnishee, which the court ordered done on that date.

On January 26, 2012, the trial court entered an order that, pursuant to the writ of fieri facias issued earlier, the Sheriff of Red River Parish was authorized to sell Holloway's one-third membership interest in Coushatta Hospitality and his one-fourth membership interest in Silver Dollar Liquor.

On February 17, 2012, Silver Dollar Liquor sought an injunction preventing the sheriff from proceeding with the seizure and sale of Holloway's one-fourth membership in Silver Dollar. Also on that date, Robert Bethard filed a petition for intervention and a motion for a temporary restraining order. He asserted that Holloway did not own a one-third interest in Coushatta Hospitality as that interest had been transferred to Bethard prior to the filing of the motion to seize Holloway's interest in Coushatta Hospitality. He sought a recognition of his ownership of the one-third interest in Coushatta Hospitality formerly owned by Holloway, and injunctive relief prohibiting the Sheriff from seizing and selling that one-third interest. The trial court granted temporary restraining orders on February 27, with the orders set to expire on March 15, 2012.

On March 8, 2012, CadleRock filed an exception of no cause of action to the temporary restraining orders obtained by Silver Dollar and Bethard. On that same date, CadleRock also filed a motion to compel discovery against GE & H Group and Popsie's Carwash, with the hearing set for May 3, 2012.

On March 8, 2012, CadleRock filed a rule for judgment pro confesso against GE & H Group as a garnishee on the grounds that it failed to file answers to garnishment interrogatories. GE & H Group was ordered to show cause on May 3, 2012, why judgment should not be rendered against them for the full amount due under the judgment rendered against Holloway.

On May 5, 2015, Holloway filed a motion to dismiss the suit for abandonment on the ground that no steps in its prosecution or defense had been taken since May 3, 2012. On May 7, 2015, an order was signed dismissing the suit.

On May 20, 2015, CadleRock filed a motion to set aside the dismissal. CadleRock contended that the matter could not be dismissed based on abandonment because...