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.
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.
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.
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.
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.
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.
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:
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.
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.
Appellant's refusal to comply with courtordered discovery, pursuant to the Consent Judgment executed by Appellant in open court, also supports the imposition of severe sanctions. "There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery." Medical Review Panel Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 4 (La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134 (emphasis added). "Refusal to comply with court ordered discovery is a serious matter, and trial judges must have severe sanctions available to them to deter litigants from flouting discovery orders." Id. (citing Horton v. McCary, 93-2315 (La.4/11/94), 685 So.2d 199, 203).
Dismissal is a severe penalty, however, and should be imposed as a last resort, and only after the litigant has been afforded the opportunity to be heard. Id. Dismissal is appropriate when a party is aware that noncompliance with discovery requests will result in a dismissal. Raspanti v. Litchfield, 2005-1512, p. 10 (La. App. 4 Cir. 11/21/06), 946 So.2d 234, 241 (quoting Helm v. Mervyn's Dep't Store, 97-0547 (La.App. 4 Cir. 8/20/97), 699 So.2d 129, 131). Finally, when a plaintiffs claims are dismissed pursuant to La.Code Civ. Proc. art. 1471, ah inquiry should generally be made into whether the noncompliance was associated with willfulness, bad faith or fault of the party, and not merely the attorney. Raspanti, 05-1512, p. 10, 946 So.2d at 241.
In the instant case, after hearing arguments from both parties at the motion to compel hearing, the trial court granted Appellant an additional fourteen days to answer the discovery. Thus, Appellant
In this case, a review of the record does not establish whether the noncompliance was attributable to Appellant himself, or merely to counsel for Appellant. The instant case presents an unusual set of facts and circumstances, however, because Appellant not only failed to answer court ordered discovery in violation of a Consent Judgment, but also failed to appear on the date of trial. Louisiana law plainly provides that failure to appear on the date of trial mandates dismissal of a party's claims:
La.Code Civ. Proc. art. 1672(A)(1)(emphasis added). The facts and circumstances of this case are thus distinguishable from the cases reviewing a trial court's dismissal for simply failing to comply with discovery orders, as Appellant in this case not only refused to comply with court ordered discovery, but also failed to appear, without explanation, on the date set for trial.
Assignment of Error # 3
In Appellant's third and final assignment of error, he alleges that the court erred in applying La.Code Civ. Proc. art. 1471 because all counsel and the court agreed that the article would not be applied, and because such relief was not requested by AYSI or addressed at trial. In support of this argument, Appellant submits that the crossed-out language in the Consent Judgment operated as an agreement that the remedies available to the court pursuant to Article 1471(A)(3) would not be applied. Appellant cites to no authority for this proposition, and we have found none. Moreover, Appellant's argument that counsel for AYSI did not specifically request relief under Article 1471 fails, as no such requirement exists.
Likewise, Appellant's argument that the testimony at trial reveals no mention of striking defenses or incidental actions also fails. A review of the trial transcript evidences that at the conclusion of the presentation of its case, counsel for AYSI requested that the court grant a judgment in favor of AYSI; that any pleadings filed by counsel for Appellant be dismissed; and that Appellant's answer and reconventional demand be stricken. In response, the court stated that based on the testimony given and the evidence received, Appellant's response and any defenses would be struck, and that the reconventional demand would be dismissed. Moreover, before the trial commenced, counsel for AYSI moved that all Requests for Admissions that were properly filed be deemed admitted, to which the court agreed, noting that all of Swope's defenses would also be stricken. This assignment of error lacks merit.
For the aforementioned reasons, we find no abuse of discretion by the trial court in proceeding to trial, dismissing Appellant's reconventional demand and granting judgment in favor of AYSI, as the trial court was free to do so in its discretion pursuant to La.Code Civ. Proc. arts. 1471(A)(3) and 1672(A)(1). We find that
We further conclude that pursuant to the mandates of La.Code Civ. Proc. arts. 1471(A)(3) and 1672(A)(1) and the egregious nature of Appellant's conduct, particularly the inexcusable disrespect exhibited towards the trial court, a dismissal of the reconventional demand with prejudice is warranted under these circumstances.
AFFIRMED AS AMENDED.
JONES, J., dissents with reasons.
JONES, J., dissents with reasons.
La. C.C.P. art. 1571(A)(2) requires that an answer to be filed prior to the assignment of ordinary proceedings for trial. Upon reviewing the record, however, no answer was filed by At Your Service enterprises, Inc., to Mr. Swope's reconventional demand. In order for the district court to be in compliance with La. C.C.P. art. 1571, it needed to sever the principal demand from the reconventional demand prior to rendering its judgment on the principal claim. Thus, for these reasons, I would reverse the judgment of the district court and remand this matter to the district court to sever the reconventional demand from the principal demand.
Notably, when recognizing the trial judge's power to take actions necessary to maintain control of his docket, this Court stated that