At Your Service Enterprises, Inc. v. Swope

• Decision Date: 14 January 2009
• Docket Number: No. 2007-CA-1620.,2007-CA-1620.
• Citation: 4 So.3d 138
• Parties: AT YOUR SERVICE ENTERPRISES, INC. v. Jeffery SWOPE.
• Court: Court of Appeal of Louisiana — District of US

4 So.3d 138

AT YOUR SERVICE ENTERPRISES, INC. v. Jeffery SWOPE.

No. 2007-CA-1620.

Court of Appeal of Louisiana, Fourth Circuit.

January 14, 2009.

Steven J. Rando, Law Offices of Steven J. Rando, L.L.C., New Orleans, LA, for Plaintiff/Appellee.

Gregory J. St. Angelo, La Nasa, St. Angelo & La Nasa, L.L.C., New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

Defendant-Appellant Jeffrey Swope appeals the trial court's grant of a default judgment awarding damages to Plaintiff-Appellee, At Your Service Enterprises, Inc., and dismissing Mr. Swope's reconventional demand. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 3, 2006, At Your Service Enterprises, Inc. ("AYSI") was contracted to repair damages to Appellant Jeffrey Swope's home resulting from Hurricane Katrina, and was to be paid the sum of $1,212,921.38. Appellant issued a down payment of $10,000.00 to AYSI. A subsequent $250,000.00 check from Appellant to AYSI was returned for insufficient funds, but was later re-issued.

AYSI began repairs on Appellant's home in January 2006, and completed construction by the agreed-upon deadline in June 2006. Because Appellant failed to issue payment to AYSI for the balance of the repairs, on June 20, 2006, AYSI filed suit. The petition sought recovery of the unpaid balance of $648,198.90 for labor and materials and $121,946.96 in emergency service repairs and attorney's fees. Appellant filed a reconventional demand and answered AYSFs principal claim on November 17, 2006.

On March 26, 2007, counsel for AYSI filed a motion to compel Appellant to answer discovery that was propounded on December 20, 2006, asserting that Appellant had not answered or objected to the discovery requests, nor provided an explanation for not answering the discovery.¹ The motion was set for hearing on May 25, 2007. Noting that the matter was set for trial on July 2, 2007,² counsel for AYSI requested that the court strike Appellant's available defenses and right to produce any witnesses or exhibits if discovery was not completed within fourteen days.

Counsel for Appellant acknowledged the upcoming July 2, 2007 trial date, noting that the reconventional demand had not yet been answered. After hearing objections by counsel for Appellant regarding the forfeiture of rights for failure to answer discovery, the court ordered discovery responses within fourteen days, advising counsel for AYSI that he could pursue sanctions if the discovery responses were not received by the deadline. A Consent Judgment, which plainly provided that Appellant would provide complete discovery responses by June 7, 2007, was signed by the court and counsel for both parties at the conclusion of the May 25, 2007 hearing.³

At trial on July 2, 2007, neither Mr. Swope nor his counsel made an appearance. Counsel for AYSI confirmed that as of that date, no discovery responses had been received from Mr. Swope or his counsel. With the court's permission, AYSI set forth evidence in an attempt to establish a prima facie case. AYSI introduced several exhibits into the record and offered extensive testimony from John Susan, the owner of AYSI, and Sophie Curol, a project manager at the job site. Based upon the evidence received and the testimony given, the court granted a judgment in favor of AYSI. Additionally, the court dismissed Appellant's reconventional demand and pleadings.⁴

On July 9, 2007, Appellant filed a Motion for New Trial, which the court set for hearing on August 31, 2007. At the hearing, however, neither Mr. Swope nor his counsel appeared. As a result, the court dismissed the Motion for New Trial and awarded AYSI $2,500.00 in attorney's fees, plus costs incurred in responding to the Motion for New Trial in the amount of $50.00.⁵ On October 11, 2007, Appellant filed a motion for a devolutive appeal.

STANDARD OF REVIEW

As established by this Court in Morgan v. City of New Orleans, 94-0874 (La.App. 4 Cir. 12/15/94), 647 So.2d 1308, an appellate court reviews a judgment of dismissal to determine whether the plaintiff established a prima facie case by a preponderance of the evidence. Kelly v Housing Authority of New Orleans; 02-0624, p. 6 (La.App. 4 Cir. 8/14/02), 826 So.2d 571, 575 (citing Morgan, supra). Similarly, it is well-settled that an appellate court's review of a default⁶ judgment is restricted to determining whether the record demonstrates sufficient evidence of a prima facie case. Gresham v. Production Management, Inc., 02-1228, pp. 3-4 (La.App. 4 Cir. 2/11/04), 868 So.2d 171, 175; Mossy Motors v. Cameras America, 02-1536, p. 3 (La.App. 4 Cir. 6/25/03), 851 So.2d 336, 339; Colonial Bank v. Baptiste, 370 So.2d 681, 682 (La.App. 4 Cir.1979). A trial court's wide discretion in determining appropriate sanctions for failure to comply with discovery orders will not be reversed absent a clear showing of an abuse of that discretion. Magri v. Westinghouse Elec, Inc., 590 So.2d 830, 831 (La.App. 4 Cir. 1991).

DISCUSSION

Appellant alleges three assignments of error. First, he alleges the district court erred in dismissing the reconventional demand where no answer or other responsive pleadings were filed by AYSI. Second, he argues that the trial court erred in proceeding to trial when there were outstanding discovery matters and when responses had not been filed to incidental actions. In his third and final assignment of error, he submits that the trial court erred in applying La.Code Civ. Proc. art. 1471 because counsel and the court agreed it would not be applied, and moreover, that such relief was not requested by Appellee or addressed at the time of trial.

Assignments of Error # 1 and # 2

Appellant argues that the trial court erred in allowing the matter to proceed to trial, in contravention of Local Rule 10.1 and La. C.C.P. art. 1571(A)(2), when responses had not been filed to incidental actions and discovery matters were outstanding. Likewise, Appellant submits that the trial court erred in dismissing the reconventional demand when no answer or responsive pleadings had been filed by AYSI.

Local Rule 10.1 of the Uniform Rules for District Courts provides that a party filing a discovery motion must first attempt to arrange a conference with the Opposing party to try to resolve the discovery dispute and that a discovery motion must include a certificate stating that the parties conferred and why they were unable to agree or that opposing counsel refused to confer after reasonable notice. Trahan v. State ex rel. Dept. of Health and Hospitals, 04-743, p. 6 (La.App. 3 Cir 11/10/04), 886 So.2d 1245, 1251. A strict reading of Rule 10.1 reveals no restriction upon a court from setting a matter for trial with outstanding discovery. Additionally, it has been noted that "[l]ocal rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose." Trahan, 04-743, p. 7, 886 So.2d at 1251 (quoting Miller v. Miller, 35,934 (La.App. 2 Cir. 5/8/02), 817 So.2d 1166, 1172, writ denied, 02-1890 (La.10/25/02), 827 So.2d 1154). Moreover, "the trial court has great discretion in the construction, interpretation, application or enforcement of its own rules." Id. With respect to the first portion of this assignment of error, we find Mr. Swope's argument to be without merit.

We next turn to Appellant's argument regarding the application of La.Code Civ. Proc. art. 1571(A)(2), which disallows "the assignment of ordinary proceedings for trial except after answer filed." In this case, no answer was filed by AYSI to Appellant's reconventional demand. Nevertheless, upon reviewing the particular facts and circumstances of this case in conjunction with La.Code Civ. Proc. art. 1471(A)(3), we find that the trial court did not abuse its vast discretion in setting the matter for trial.

Article 1471(A)(3) provides that when a party fails to obey an order to provide or permit discovery, the court in which the action is pending may take the following actions:

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

La.Code Civ. Proc. art. 1471(A)(3)(emphasis added).

Accordingly, Article 1471(A)(3) provides that rendering judgment by default is an action available to the court for the failure of a party to obey an order to provide or permit discovery.⁷ In this case, a review of the transcript of the proceedings on May 25, 2007 reveals that Appellant had actual knowledge of the July 2, 2007 trial date. We agree with our brethren in the Third Circuit, who reasoned that such an acknowledgment constitutes a waiver under La. C.C.P. art. 1571. National Union Fire Ins. Co. of Pittsburgh, PA v. Cagle, 94-322 (La.App. 3 Cir. 11/2/94), 649 So.2d 642, 645 at n. 5 ("[b]y agreeing to the trial date, [Defendants-Appellees] presumably waived [their] rights under La. C.C.P. art. 1571, which provision prohibits the setting of a trial date before an answer has been filed").⁸ A review of the record reveals no request for a continuance of the trial date, nor any objection to the trial date filed on behalf of Appellant.

Furthermore, at the conclusion of the May 25, 2007 proceedings, Appellant executed a Consent Judgment, promising to provide discovery responses to Appellee within fourteen days; Appellant failed to comply.⁹ Thus, Appellant's contemptuous failure to comply with the court-ordered discovery falls squarely into the mandates of Article 1471 as a "fail[ure] to obey an order to provide or permit discovery." La. Code Civ. Proc. art. 1471. Likewise, the Louisiana Supreme Court has held that "[l]itigants cannot refuse to...