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.
COUNSEL FOR DEFENDANT/APPELLANT, SHAMROCK CONSTRUCTION
COMPANY, INC. AND WALGREENS LOUISIANA COMPANY, INC.
Christopher K. LeMieux Jonathan S. Forester Cynthia M.
composed of Judges Jude G. Gravois, Marc E. Johnson, and John
J. Molaison, Jr.
E. JOHNSON JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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. 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.
response to the dismissal, Mr. Brooks filed a "Motion to
Vacate Order of Dismissal." 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.
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.
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.
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