Summary
In First Bank & Tr. v. Proctor's Cove II, LLC, 19-299, (La. App. 5 Cir. 12/30/19), 287 So.3d 888, 897, a minute entry stated that the plaintiff's counsel sent a letter continuing the hearing on motions for summary judgment without date.
Summary of this case from Roubion Shoring Co. v. Crescent Shoring, LLCOpinion
NO. 19-CA-299
12-30-2019
FIRST BANK AND TRUST v. PROCTOR'S COVE II, LLC, Milton Gagnon and Michael J. Thompson
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
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
LILJEBERG, J.
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. Consequently, the portion of the judgment dismissing First Bank's claims against the decedent, Milton Gagnon, is reversed as an absolute nullity.
Dazet Mortgage Solutions, LLC v. Faia , 12-486 (La. App. 5 Cir. 4/10/13), 116 So.3d 711, 719, writ denied , 13-1046 (La. 6/21/13), 118 So.3d 1095.
FACTUAL AND PROCEDURAL BACKGROUND
This is the third appeal in this matter, which involves a long procedural history. 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.
In the first appeal, First Bank and Trust v. Proctor's Cove II, LLC , 10-1 (La. App. 5 Cir. 3/16/10), 37 So.3d 1019, writ denied , 10-860 (La. 6/18/10), 38 So.3d 328, this Court dismissed defendants' appeal of a judgment dismissing their reconventional demand because the judgment was not final. In the second appeal, First Bank and Trust v. Proctor's Cove II, LLC , 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 reversed the trial court's summary judgments rendered in favor of First Bank and further found that the trial court did not err by striking pleadings filed by Keith Gagnon, who was not a licensed attorney, on behalf of the limited liability company, Proctor's Cove, pursuant to La. R.S. 37:213, which prohibits the practice of law by non-attorneys.
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. 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.
Keith Gagnon is the son of Milton Gagnon and an alleged member of Proctor's Cove. Except for limited exceptions set forth in La. R.S. 37:212, limited liability companies must be represented by counsel due to prohibitions against the practice of law by unlicensed individuals who have not been admitted to practice law by the Louisiana Supreme Court. See Proctor's Cove , 150 So.3d at 422.
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." 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.
According to First Bank, defendant, Milton Gagnon, passed away on July 29, 2016. The parties further contend that on November 15, 2017, the court handling the succession of Milton Gagnon issued letters testamentary to Keith Gagnon as a co-executor.
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. He further argued that the attorney who filed the Ex Parte Motion to Dismiss did not have "authorization or consent" from Proctor's Cove to file the motion. On August 16, 2018, the trial court signed an order vacating the order of dismissal entered on June 21, 2018.
La. C.C.P. art. 561(A)(4) provides that a "motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal." It appears that the motions to set aside the dismissals filed by both Keith Gagnon and First Bank, as discussed more fully below, are timely as the record does not contain any indication that these parties were served with the order of dismissal.
However, on the following day, August 17, 2018, the trial court vacated and annulled its August 16, 2018 order, and entered a judgment indicating that it inadvertently signed the order attached to Keith Gagnon's Motion to Set Aside Dismissal. The trial court further stated that no grounds to set aside the June 21 2018 order of dismissal existed for the following reasons:
This order has no legal effect, and there are no grounds to set aside the dismissal. It was not timely under C.C.P. art. 561. Keith Paul Gagnon is not an attorney and has no legal authority to represent any party in this action. Furthermore, ‘The Estate of Milton Gagnon’ is not a party in this lawsuit.
The trial court finally stated, "[t]his case is DISMISSED for abandonment as per this court's June 21, 2018 judgment."
On August 24, 2018, First Bank also filed a Motion to Set Aside Dismissal arguing that Keith Gagnon properly appeared in this matter as the succession representative for Milton Gagnon, and further argued that through his actions, Keith Gagnon waived the right to plead abandonment of First Bank's claims against Milton Gagnon. First Bank also argued that based on Keith Gagnon's representations that the Ex Parte Motion to Dismiss was filed without Proctor's Cove consent, the order dismissing its claims against Proctor's Cove should also be vacated. Finally, First Bank noted that the trial court improperly dismissed its claims "with prejudice."
On October 12, 2018, Keith Gagnon filed a Motion for Reconsideration asking the trial court to reconsider its August 17, 2018 judgment, which vacated the August 16, 2018 order setting aside the dismissal. Mr. Gagnon did not include an order or rule to show cause with his Motion for Reconsideration and therefore, it does not appear that it was ever set for hearing or ruled on by the trial court.
On October 17, 2019, First Bank filed a Supplemental Motion to Set Aside Dismissal further arguing that the Motion to Tax Costs filed by Keith Gagnon on May 29, 2018 interrupted the three-year abandonment period.
On December 14, 2018, Proctor's Cove and Michael Thompson filed an opposition to First Bank's Motion to Set Aside Dismissal arguing that the Motion to Tax Costs filed by Keith Gagnon did not interrupt the three-year abandonment period because Keith Gagnon is not a party to the litigation and is not a licensed attorney authorized to file pleadings on behalf of the succession. These defendants further argued that abandonment is self-executing and automatically occurs after the expiration of the three-year period.
The trial court held a hearing on the Motion to Set Aside Dismissal on March 20, 2019. Following oral argument, the trial court noted that Keith Gagnon was never substituted as a party to represent the succession of Milton Gagnon in these proceedings. The trial court denied First Bank's Motion to Set Aside Dismissal, but noted the dismissal of its claims would be "without prejudice." On March 27, 2019, the trial court entered a written judgment setting forth its ruling.
On April 1, 2019, First Bank requested written findings of fact and reasons for judgment from the trial court. In its Reasons for Judgment issued on April 3, 2019, the trial court noted that First Bank offered no authority for its position that the "Estate became a defendant in this matter without any formal substitution." The trial court further reasoned:
To allow a pleading [motion to tax costs] filed on behalf of a non-party by an individual who is not an attorney to waive abandonment as to all defendants is illogical. The pleadings filed by Keith Paul Gagnon on May 29, 2018 have no effect in this matter. The estate is not a party, and Keith Paul Gagnon is not authorized to represent any named party in this matter. Since no step was taken by any party to prosecute or defend this matter since First Bank continued the hearing on its motion for summary judgment on May 27, 2015, this action is abandoned under C.C.P. article 561.
On April 29, 2019, First Bank filed a timely motion for appeal, which the trial court granted on the same day. On July 10, 2019, Keith Gagnon filed an Answer to Appeal, as the "succession representative" for "defendant/appellee The Estate of Milton Gagnon."
DISCUSSION
On appeal, First Bank argues that the trial court erred by denying its Motion to Set Aside Dismissal because the Motion to Tax Costs filed by Keith Gagnon interrupted the three-year abandonment period. Keith Gagnon also argues that the attorney who filed the Ex Parte Motion to Dismiss did not have authority to act on behalf of Proctor's Cove and should be sanctioned. First Bank further argues that the trial court erred by failing to find that Keith Gagnon waived abandonment as the representative for Milton Gagnon's succession. Was the Three-Year Abandonment Period Interrupted?
Pursuant to La. C.C.P. art. 561, an action is "abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years." Article 561 imposes three requirements to avoid abandonment: 1) a party must take some "step" in the prosecution or defense of the action; 2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and 3) the step must be taken within three years of the last step taken by either party. Louisiana Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-912 (La. 12/6/11), 79 So.3d 978, 981, citing Clark v. State Farm Mut. Auto. Ins. Co. , 00-3010 (La. 5/15/01), 785 So.2d 779, 784.
A "step" is a formal action by a party before the court intended to hasten the suit towards judgment or is the taking of formal discovery. Id. , citing James v. Formosa Plastics Corp. of La. , 01-2056 (La. 4/3/02), 813 So.2d 335, 338. This Court has determined that based on the plain language of La. C.C.P. art. 561(A)(1) cited above, that an action by a clerk of court or court is generally not a step that can interrupt the running of the three-year abandonment period. See , e.g. , Felo v. Ochsner Medical Center-Westbank, LLC , 15-459 (La. App. 5 Cir. 12/23/15), 182 So.3d 417, 420, writ denied , 16-232 (La. 4/8/16), 191 So.3d 584.
Abandonment takes place by operation of law, is self-executing, and is effective without court order. It occurs automatically upon the passing of three years without a step being taken by a party. Lewis v. Jones , 16-48 (La. App. 5 Cir. 5/26/16), 193 So.3d 546, 549 ; Giovingo v. Dunn , 11-781 (La. App. 5 Cir. 3/13/12), 90 So.3d 1098, 1101, writ denied , 12-831 (La. 5/25/12), 90 So.3d 418. However, on the ex parte motion and affidavit of any party or other interested person that no step has been taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. La. C.C.P. art. 561(A)(3).
La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Nunez v. Burgos , 16-568 (La. App. 5 Cir. 3/15/17), 215 So.3d 931, 934. Whether an action has been abandoned is a question of law and is therefore subject to de novo review on appeal. Felo , 182 So.3d at 420.
In their Ex Parte Motion to Dismiss Based Upon Abandonment, defendants, Proctor's Cove and Michael Thompson, stated the last step was the filing of this Court's opinion in the record on May 29, 2015. They also argued during the lower court proceedings that the trial court should not consider the Motion to Tax Costs filed by Keith Gagnon on behalf of the "Estate of Milton Gagnon" as a step because he was not substituted as a party in these proceedings and was not a licensed attorney who could file pleadings on behalf of the succession. The trial court apparently rejected this argument as it stated in its written Reasons for Judgment that the last step occurred on May 27, 2015, when First Bank continued its summary judgment motion without date.
In their appellate brief, Proctor's Cove and Michael Thompson raised an issue as to whether the filing of this Court's decision on May 29, 2015 was a step in the prosecution or defense of this action. First Bank contends that we should not question whether the filing of the opinion was a step because defendants failed to provide further briefing on this issue and they did not raise this argument with the trial court. First Bank further argues that, after this Court reversed the summary judgments in its favor and remanded the matter to the trial court for further proceedings, the three-year abandonment period did not begin to run again until this Court's opinion was filed into the record.
As explained above, abandonment takes place by operation of law and does not require a court order. Though the parties did not raise or dispute the issue of when the last step occurred before the trial court, it is incumbent upon this Court to determine the act that constituted the last step by a party in the prosecution or the defense of the action in order to determine when abandonment occurred by operation of law.
Accordingly, we first consider whether the filing of this Court's September 24, 2014 opinion on May 29, 2015 was a step by a party that interrupted the three-year abandonment period. It is not apparent from the record who initiated the filing of the opinion or why it was filed in the trial court record eight months after it was issued. However, under the facts and circumstances present in this scenario, we find that if the opinion was filed by the clerk of court or other court personnel, it does not constitute a step because the plain language of La. C.C.P. art. 561(A)(1) provides that the action in the prosecution or defense of the matter must be taken by a party. See Felo , supra ; Voisin v. International Companies & Consulting, Inc. , 05-265 (La. App. 1 Cir. 2/10/06), 924 So.2d 277, 281 ("To avoid abandonment, the Code of Civil Procedure clearly requires action by the parties to the lawsuit.").
Furthermore, even if a party to the proceedings filed the opinion into the record, we do not find that it constituted a step by a party that interrupted the three-year abandonment period. A party's act of simply filing a document into the record does not constitute a step unless the filing serves to hasten the matter to judgment. See, e.g. , Lewis , 193 So.3d at 550 (finding that the filing of a witness list did not constitute a step where no motion to set trial or to issue a scheduling order had been filed by either party). Filing an appellate court's opinion into the record months after the decision was rendered does not hasten the matter to judgment. The parties certainly did not consider it necessary to file the opinion into the record in order to proceed with litigation after this Court reversed the summary judgments. Shortly after the opinion was issued, First Bank responded by moving to reset its summary judgment motions for hearing and Proctor's Cove and Milton Gagnon sought further review from the Louisiana Supreme Court.
First Bank attempts to place some significance on the filing of this Court's opinion by arguing that the abandonment period did not begin to run again until it was filed into the trial court record. However, First Bank fails to cite to, and we have not located, any authority requiring the filing of an appellate court opinion into the trial court record in order to restart the abandonment period. To the contrary, under similar circumstances, in Girouard v. State ex. rel. Dep't. of Educ. , 00-2114 (La. App. 1 Cir. 11/9/01), 807 So.2d 279, 282-83, the appellate court recognized the three-year abandonment period under La. C.C.P. art. 561 commenced to run again once the appellate court decision became final, that is after delays for rehearing and supervisory review expired. In the present matter, this Court's decision became final after the Louisiana Supreme Court denied defendants' writ application on January 9, 2015, and the delay for filing an application for rehearing expired 14 days later pursuant to Louisiana Supreme Court Rule IX, Section 1. Therefore, the abandonment period began to run again well before the filing of this Court's opinion into the trial court record on May 29, 2015. We next consider whether First Bank's request to continue the May 27, 2015 hearing on its summary judgment motions constituted a step. The minute entry from that date states that First Bank's counsel sent a letter on that day continuing the summary judgment motions without date. In its Reasons for Judgment, the trial court indicated its belief that this continuance was the last step to interrupt the abandonment period.
First Bank's letter is not in the appellate record.
However, in Bourg v. Entergy Louisiana, LLC , 12-829 (La. App. 5 Cir. 4/10/13), 115 So.3d 45, 49, our Court addressed this exact issue and determined that "[c]ontinuing the hearing on a motion for summary judgment, without date, does not further the suit towards judgment, and thus does not qualify as a ‘step’ to interrupt the accrual of the abandonment period." See also Hutchison v. Seariver Mar., Inc. , 09-410 (La. App. 1 Cir. 9/11/09), 22 So.3d 989, 994, writ denied , 09-2216 (La. 12/18/09), 23 So.3d 946 (A joint motion to continue without date is not considered a step since it is not intended to hasten the matter to judgment). Based on the forgoing, we find that the continuance of the May 27, 2015 hearing date was not a step that interrupted the three-year abandonment period.
The next possible act to constitute a step was the opposition brief filed by Proctor's Cove and Michael Thompson on May 19, 2015, in response to First Bank's motions for summary judgment. Clearly, this filing qualifies as a step by these parties as it was an act in defense of First Bank's claims against them.
Accordingly, we find the three-year abandonment period was last interrupted on May 19, 2015, and that no step by a party that interrupted the three-year abandonment period occurred on or prior to May 19, 2018. Therefore, by operation of law, First Bank's claims were abandoned after May 19, 2018.
Due to our determination that First Bank's claims were abandoned by operation of law on May 19, 2015, we do not address Keith Gagnon's argument that the Ex Parte Motion to Dismiss was filed without Proctor's Cove's consent. No evidence to support this argument appears in the record and we further note this Court's prior determination that, because he is not licensed to practice law, Keith Gagnon is not entitled to file pleadings on behalf of Proctor's Cove. Proctor's Cove , 150 So.3d at 422.
Waiver of Abandonment
First Bank next contends that the trial court erred by denying its Motion to Set Aside Dismissal by arguing that even if its claims are abandoned, Keith Gagnon's actions, as the succession representative, waived abandonment as to their claims against Milton Gagnon's succession. However, we cannot address this issue because, as discussed more fully below, it is well-established that neither the trial court nor this Court can enter a judgment with respect to First Bank's claims against the decedent until his legal successor is substituted as a party to these proceedings.
Though First Bank does not appear to raise this issue on appeal, during oral argument before the trial court, First Bank argued that Keith Gagnon's waiver of abandonment served as a waiver for all defendants. In Lion InvestBanc Corp. v. River Products, Inc. , 02-481 (La. App. 5 Cir. 10/29/02), 831 So.2d 500, 503, we rejected a similar argument because when considering whether a party has waived abandonment, a court must consider each particular party's intent to treat the case as abandoned. We found no legal basis to attribute one defendant's actions constituting waiver to other remaining defendants. Id.
First Bank and Keith Gagnon argue on appeal that it was not necessary to substitute Keith Gagnon as a party in these proceedings in order for him to act on behalf of the estate. However, it is well-settled that a judgment rendered for or against a deceased party is a nullity. Dazet Mortgage Solutions, LLC v. Faia , 12-486 (La. App. 5 Cir. 4/10/13), 116 So.3d 711, 719, writ denied , 13-1046 (La. 6/21/13), 118 So.3d 1095 ; Akyar v. Lee , 99-806 (La. App. 5 Cir. 1/25/00), 751 So.2d 411. Thus, before a trial court can enter a judgment for or against a deceased party, substitution of a legal successor is essential. See Melara v. Government Employees Insurance Co. , 00-1305 (La. App. 5 Cir. 12/13/00), 777 So.2d 552, 554 ; Frank L. Maraist, 1 La. Civ. Law Treatise, Civil Procedure, § 4:13 (2nd Ed.).
La. C.C.P. art. 734 discusses the proper party defendant for a succession under administration:
Except as otherwise provided by law, including but not limited to Articles 2641 and 2674, the succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.
La. C.C.P. arts. 801 and 802 provide for voluntary and compulsory substitutions for deceased parties:
Art. 801 : When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
As used in Articles 801 through 804, "legal successor" means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.
Art. 802 : On ex parte written motion of any other party, supported by an affidavit of the truth of the facts alleged, the court may order the issuance of a summons to the legal successor to appear and substitute himself for the deceased party.
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In Akyar , supra , this Court addressed a similar appeal of a judgment denying a plaintiff's request to set aside an order of dismissal for abandonment. Just as in this case, the defendant died several years prior to the filing of the motion to dismiss for abandonment and no party was substituted in the place of the defendant. This Court determined the judgment of dismissal entered in favor of the defendant was an absolute nullity because there was no proper defendant in the case when the trial court entered the judgment dismissing plaintiff's claims. Id. at 412-13. Based on the foregoing, we must find that without the formal substitution of a legal successor, the judgment dismissing First Bank's claims against the decedent, Milton Gagnon, is an absolute nullity.
Accordingly, we affirm the trial court's March 27, 2019 judgment to the extent it denied the motion to set aside the dismissal and dismissed First Bank's claims against defendants, Proctor's Cove II, L.L.C. and Michael J. Thompson, without prejudice. However, we reverse the trial court's June 18, 2018 order of dismissal, and August 17, 2018 and March 27, 2019 judgments, to the extent they served to dismiss First Bank's claims against the decedent, Milton Gagnon, as they are an absolute nullity due to the failure to substitute a proper party defendant prior to the entry of judgment.