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Brooks v. Shamrock Construction Co., Inc.

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

CHARLES BROOKS
v.
SHAMROCK CONSTRUCTION COMPANY, INC., GHK DEVELOPMENTS, INC., AND WALGREENS LOUISIANA COMPANY, INC.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 769-777, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, CHARLES BROOKS Tracey R. Bryan

          COUNSEL FOR DEFENDANT/APPELLANT, SHAMROCK CONSTRUCTION COMPANY, INC. AND WALGREENS LOUISIANA COMPANY, INC. Christopher K. LeMieux Jonathan S. Forester Cynthia M. Bologna

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE.

         Defendants/Appellants, Shamrock Construction Company, Inc. (hereinafter referred to as "Shamrock") and Walgreens Louisiana Company, Inc. (hereinafter referred to as "Walgreens"), appeal a judgment from the 24th Judicial District Court, Division "F," that annulled a prior order dismissing the lawsuit of Plaintiff/Appellant, Charles Brooks, against them. For the following reasons, we affirm the trial court's judgment.

         FACTS AND PROCEDURAL HISTORY

         This matter originates from 24th Judicial District Court case number 717-787, which was assigned to Division "A". In that action, Charles Brooks v. Shamrock Construction Company, Inc., et al., Mr. Brooks filed suit against Howard Pile Driving Company, Inc., Suddy's Excavating Service, L.L.C, GHK Developments, Inc., Shamrock and Walgreens for alleged damages he incurred to his apartment complex during the construction of a nearby Walgreens location. During the course of the discovery phase, Shamrock filed multiple motions to compel and for sanctions against Mr. Brooks relating to the production of propounded documents. In a judgment rendered on February 13, 2015, the trial court granted Shamrock's motions filed on October 27, 2014 and ordered Mr. Brooks to provide the outstanding documents responsive to Shamrock's request within 20 days and pay $951.30 in sanctions.

         On May 13, 2015, Shamrock filed a "Motion to Dismiss and for Sanctions" against Mr. Brooks, alleging he failed to comply with the February 13th judgment and requesting dismissal of the action. The trial court granted Shamrock's motion on May 15, 2015, without conducting a contradictory hearing, and dismissed Mr. Brooks' action against any and all parties with prejudice. The trial court also ordered Mr. Brooks to pay $931.30 in sanctions to Shamrock.[1] On October 8, 2015, Shamrock sent a letter to Mr. Brooks' attorney to inform her that the action had been dismissed and it would seek additional attorney's fees and seizure of property to enforce the judgment, unless Mr. Brooks satisfied the sanctions order. Mr. Brooks' attorney replied to Shamrock's letter on October 13, 2015 and enclosed a check in the amount of $951.30.

         In response to the dismissal, Mr. Brooks filed a "Motion to Vacate Order of Dismissal."[2] It was heard by the trial court on February 1, 2017 and denied on February 6, 2017. In its written reasons for judgment, the trial court detailed the delays encountered in the matter over discovery and the extensions allowed to Mr. Brooks. The court found that it did not have the discretion to vacate the May 15thorder of dismissal, and Mr. Brooks could have filed a motion for new trial within seven days of receiving notice of the dismissal. However, it could not consider the motion to vacate as a motion for new trial because the delay for applying for a new trial had expired prior to the time Mr. Brooks' motion to vacate was filed.

         On March 9, 2017, Mr. Brooks filed a "Petition for Absolute Nullity under C.C.P. art. 2002," which was assigned to Division "F". In the petition, Mr. Brooks alleged the May 15, 2015 order in case number 717-787 that dismissed his action against all of the parties was an absolute nullity because Shamrock failed to request proper service of its motion to dismiss; as a result, he was never served with Shamrock's motion and was completely unaware that the motion had been filed. He also alleged that the May 15th order was an absolute nullity because Shamrock failed to request a contradictory hearing on its motion to dismiss, which was a violation of his due process rights. Mr. Brooks argued that-in addition to the lack of service and a contradictory hearing-the order of dismissal was rendered in error because it dismissed all five of the listed defendants from the action on Shamrock's motion, even though Shamrock did not represent the other four defendants. He further argued the order was erroneously rendered because he complied fully with the trial court's February 13, 2015 discovery order and supplied the outstanding discovery to Shamrock, despite Shamrock's assertion that he failed to do so.

         In their "Answer to 'Petition for Absolute Nullity under C.C.P. art. 2002, '" Defendants, Shamrock and Walgreens, asserted that Mr. Brooks was present in the Parish where the order was rendered and did not attempt to enjoin its enforcement. Defendants claimed that they were not required to set the motion to dismiss for hearing, and they timely mailed a copy of the motion to dismiss to Mr. Brooks' attorney. They also asserted that Mr. Brooks voluntarily acquiesced in the ruling when he delivered payment of the sanction to Shamrock. Thus, Defendants contended Mr. Brooks could not annul the May 15, 2015 order on any of the grounds enumerated in La. C.C.P. art. 2002.

         A trial on Mr. Brooks' petition was held January 30, 2018. In its oral reasons for judgment, the trial court found that a motion to dismiss on a discovery issue required a contradictory hearing, and Mr. Brooks was not served in compliance with La. C.C.P. arts. 1313 or 1314 in case number 717-787. Additionally, because there were two orders for sanctions entered in the amount of $951.30, the trial court found that Mr. Brooks did not acquiesce to the dismissal order by delivering a payment in that amount to Shamrock. The court reasoned that the payment of one sanction did not satisfy the other sanction. In a written judgment dated January 30, 2018, the trial court found that the order rendered on May 15, 2015, in Division "A," should have been annulled in accordance with La. C.C.P. art. 2001, et seq., vacated the May 15th order, and taxed all court costs against Shamrock and Walgreens. Defendants filed the instant appeal of the January 30th judgment.

         ASSIGNMENTS ...


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