Jaroed Tait Slocum VS Ken Major Realty, The Estate of Jeffrey Roy Brasseaux, Jeffery Roy Brasseaux, Jr., Through His Heirs, Kevin Brasseaux, Ashley Brasseax, and Bridgette Brasseaux Through His Executor Dale Brasseaux
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NOT DESIGNATED FOR PUBLICATION STATE OF LOmSIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0803 JAROED TAIT SLOCUM VERSUS KEN MAJOR REALTY THE ESTATE OF JEFFREY ROY BRASSEAUX THROUGH HIS HEIRS KEVIN BRASSEAUX ASHLEY SSEAUX BRIDGETTE BRASSEAUX THROUGH HIS EXECUTOR JR DALE BRASSEAUX Judgment Rendered Appealed from the Eighteenth Judicial District December 21 2007 Court in and for the Parish of West Baton Rouge State of Louisiana Docket Number 35 774 Division Honorable J Robin Free D Judge Presiding Robert Hallack Counsel for Plaintiff Appellee Baton Jaroed Tait Slocum Rouge LA Appellant Regions Mortgage Company Counsel for Intervenor Jena Smith Lance J Arnold New Orleans LA BEFORE 9Ju 1 WHIPPLE GUIDRY AND HUGHES JJ Cl71 v1P WIDPPLE J In this challenges basis that a intervenor appeal judgment of the trial Regions failed following reasons we Regions Mortgage Company court dismissing its claims with prejudice to appear at trial in amend and as Regions on the support of its intervention For the amended affirm FACTS AND PROCEDURAL HISTORY On August 13 1999 located at 3053 Louisiana and built by the late Major Realty financed the According yard near was Highway Jeffrey Roy Jamed Tait Slocum Gay Aguillard in October of 1999 he began to expand that the home had been built on a an agent with Ken over began discovering sinkholes time landfill Plaintiff through Regions Mortgage the home which caused the doors windows and crack The cracks residence a agent for the purchase and sale of the home and property plaintiff purchased 78 Livonia Louisiana that had been owned Brasseaux the real estate purchase to plaintiff ceiling Inc in the of the home to Plaintiff subsequently discovered containing large blocks of concrete debris and other types of construction debris On July estate and Ken 18 2001 plaintiff filed Deceptive Trade articles 1995 2475 2524 and 2545 dirt in the landfill constructing the or home suit for that the real estate never placed disclosed this agent knew s Warranty Plaintiff alleged that Brasseaux either or to over plaintiff the landfill before Plaintiff filliher on a landfill and that the home eventually suffer major structural and foundational problems 2 placed should have known and should have disclosed to him that the home had been built would Brasseaux Practices Acts and Louisiana Civil Code knew that dirt had been but damages against claims under the New Home Major Realty asserting Act the Unfair andor alleged a Ken of lack of a Major Realty was procedural capacity to to In its stead name filing Fire Insurance plaintiff thereafter filed additional defendants real as Company Major Regions Mortgage by the proceeding on secured conference of to set counsel for as owner protect its mortgage on an trial date a on of the dispute that it was scheduling conference trial 2006 2006 was promissory intervention in the 3 Counsel then which a status representing held with was notified but did not make any appearance At the June 20th 2006 then issued conference the matter and notice of by the Clerk her insurer and Regions was assignment of Office of the s to counsel for specifically notifying the of the time and date of the trial After the agreed matter upon I Ken was on scheduled for trial a fonnal mediation by all pmiies including Regions Major Realty 2The mortgage Slocum and for set was Eighteenth Judicial District Court for the Parish of Pointe Coupee plaintiff Aguillard note Aguillard and her insurer in attendance 14 and 15 September on an 2006 the matter 1 June 20 and counsel for dated June 27 parties of exception 2 appearance at the status conference does not jury the holder and plaintiff filed May plaintiff at the status Inc 3 2006 to April Regions waived for eventually dismissed mortgage upon the house and property filed By motion Regions was of action no cause 13 exception an agents Joseph Major and Gay Aguillard and their insurer Twin City estate trial 1 be sued supplemental and amending petition set dismissed after voluntarily August 13 is a trade name and not ajuridical and note in the anlount of 1999 The mOligage However was 78 221 00 was held at Regions elected entity capable were recorded in Pointe executed Coupee a date not to of being sued by laroed Tait Parish on August 1999 3 Attached to the motion is setting forth that a a Certificate of Service copy had been fumished to counsel for all 3 executed paliies by plaintiff s via regular counsel mail attend participate or in the mediation As a settled with Aguillard and her insurer in the The matter called for trial was on Brasseaux the succession court September then ensued and on the notice of Accordingly plaintiff s counsel continued to that the court had also waited comi continued September 26 court office the s requested and representative for Jeffrey not court that the trial of the main demand be representative but that the as Regions through some time for proper notice record showed its counsel of record and petition ordered that Brasseaux and Dale Jeffrey noting counsel to appear the trial Regions for intervention for failure to granted plaintiffs other requests continued the 2006 was the that he had not received notice of the trial date the trial but dismissed the The trial appear Brasseaux Regions After determining that the that notice had been issued to between Because Dale Brasseaux dismissed for failure to appear at trial of the trial had been issued to only concelning the issue of whether Dale allow proper service upon the succession petition for intervention be 4 colloquy assignment of trial issued by the clerk agreed plaintiff On that date representative for his brother Jeffrey counsel plaintiffs 14 2006 An extensive builder had received notice of the trial date listed of 35 000 00 amount plaintiff and his counsel appeared for trial plaintiffs counsel and the result of the mediation Brasseaux Brasseaux s as matter to succession three heirs be served with notice of the trial date The matter again September 26 2006 Brasseaux appeared reached a 4By Regions for trial of plaintiff s claims On that date plaintiff letter dated and his counsel September 8 Regions did 2006 35 000 00 in settlement the court for distribution petition for against by the court make proceeds intervention to be executed on but Dale the parties appearance on Aguillard advised counsel for being deposited into the registry of Aguillard also enclosed a motion to were by court an counsel for Counsel for 4 not the builder appeared without counsel With the assistance of the settlement agreement that the dismiss the came counsel for Regions September prejudice 2006 26 signed was hearing between 2006 not it did 26 plaintiff on a motion for September 14th a its claim Motion December 7 specifically new to Cancel MOligage claims with during the September was also trial signed s essentially alleging 26 on was from pretrial signed rendered and Note on September In the meantime Both motions came for Regions had conference at which the trial date was fixing had been the that it Regions also alleged that 2006 where the trial court determined that elected not to attend the Regions appeals assignments s stipulated settlement agreement trial date until after it selected and that notice of the trial judgment sent to of the Regions trial 6 court 7 framing its of error as follows The trial court abused its discretion in dismissing Regions preiudice finding that the notice of the September 14 2006 Petition for Intervention with record showed 5 court and heirs of Brasseaux estate Regions filed dismissing filed 1 by the trial receive any notice of the judgment rendered and 2006 hearing and the receive notice of the not court intervenor 2006 Thereafter did in open judgment dismissing A judgment in conformity with the plaintiff September 26 A written At the September 14th Regions had hearing Regions argued that the September 26th trial dates after it had not received notice of either the or 6The trial cOUli then took up the matter of the plaintiff s request for cancellation of the mOligage After heated argument and a bench conference however the trial judge recused himself prior to ruling on that motion 70n February 5 2007 Regions filed a motion and order for appeal of the final judgment rendered December 15 2006 The record contains no judgment dated December 15 2006 By cOlTespondence dated March 14 2007 Regions counsel wrote to the clerk of court and stated that its motion for devolutive appeal contained a typographical elTor The letter notes that the date of the final judgment for pUl1Jose of this appeal is December 7 2006 In Dural v City of Morgan City 449 So 2d 1047 1048 La App 1st Cir 1984 this court stated there is a line of Supreme Court cases which holds that where a motion for appeal refers by date to the judgment denying the motion for new trial but the cirCUlTIstances indicate that the appellant actually intended to appeal from the judgment on the merits the Citations appeal should be maintained as being taken from the judgment on the merits we conclude the for review on appeal is the omitted Thus in the instant matter judgment 26 2006 judgment which dismissed Regions intervention with prejudice September 5 trial date andor waived its when it did not appear 2 The trial 26 court 2006 Regions it erred at as signed the s Petition for Intervention in the litigation conference status Buyer participate to matter a the right of law when September Proposed Order dismissing with preiudice on DISCUSSION8 Assignment At the outset we note notice the record reflects ie 2007 after the counsel for Regions advising the parties no notice been clerk s although other parties filed such request was hearing and trial date was sent filed by Regions of the trial date until our date motions we ve office had issued notice record counsel for The names assignment of Aguillard and Regions and denied mail to by the clerk the trial court a office we ve get we a counsel for At the its then counsel of notice of the trial date parties listed hearing on 2 plaintiff on the notice of counsel for Gay the motion for the trial court counsel for that he had received the notice of assignment issued 8Regions filed s since every time Regions through receiving Regions questioning by 18 shown to contain documentation that the ever 1 are counsel for trial in response to by the Sheriff addresses of the three trial date 3 was by January Regions initially argued that it had received been served After the record requests for Nonetheless the record shows that notice of assignment of trial a written regarding the trial date contending that on prior occasions filing hearing no that of Error No 1 plaintiff by the court new indicated The court noted motion for leave to attach to its brief transcripts of the hearings before September 26 2006 and December 7 2006 or in the supplemented to include transcripts from the September 14 2006 and September 26 2006 hearings pursuant to LSA CC P art 2132 On review another panel ofthis court 1 granted the motion in part directing the lower court to supplement the appellate record with two celiified copies of the transcript of the hearings on September 14 2006 and September 26 2006 at Regions costs 2 refen ed the portion of the motion seeking to attach the December 7 2006 transcript to its briefto tIus panel and 3 demed that pOliion of the motion seeking to attach the September 14 2006 and September 26 2006 transcripts to the brief See 2007 CA 0803 Because the December 7 2006 transcript is already included in the appellate record however we deny as moot the pOliion of the motion seeking to attach the December 7 2006 transcript to the brief altemative on September 14 2006 that the record be corrected and 6 that counsel for Aguillard counsel likewise appeared for trial Despite the clerk is nothing in andor also received the notice issued service notation s Regions argues the record to show that the Notice of the sent to parties listed that either Notice was is there nor provided to Regions now or on on all court as that t appeal Assignment was ever her here served in the record to anything served by the suggest involved in the pmties litigation To the extent that the notice we given by ordinary mail was that LSA C C P note facsimile art argues the service and not 1313 was by service from Service entitled by found in Title II Citation and Service of Process of Pleadings provides A in pmt as defective because the sheriffs office mail delivery Chapter 5 Service follows provided by law every pleading subsequent to the original petition and every pleading which under an express provision of law may be served as provided in this Article may be served either by the sheriff or by Except 1 is no Mailing otherwise as a copy thereof to the counsel of record counsel of record address this service 2 to the adverse party at or if there his last known being complete upon mailing copy thereof to the counsel of record there is no counsel of record to the adverse party B Delivering When service is made transmission the record a C or order a pmty or counsel celtificate of the manner sets a court date or as A provided if facsimile file in the made A of this Article if pleading by registered or a in Nticle 1314 provides in part be served but which may shall be served by the sheriff by pleading which is required served under Article 1313 either of the was then service shall be made Moreover LSA C C P art 1314 not be in which service Notwithstanding Paragraph certified mail A by mail delivery or making the service shall or following 7 to or 1 Service the adverse party in any on under Articles 1231 through These articles however In the instant trial case was required Further because it to the to extent that Regions controlling authority The clerk shall whenever merit to a notice of give that this by the sheriff s was office defective Louisiana Code of Civil Procedure Chapter in this assignment of Regions argument argues that the notice by certified mail article 1572 found in Title V Trial which is the no and citation of pleadings be served upon all counsel of record not sent was clearly deal with service We thus fmd by the clerk of court notice 1266 faced with the issuance of we are pennitted manner case 2 Assignment of Cases for Trial provides that written notice of the date of the trial request therefor is filed in the record or is made by registered mail by a pmiy or counsel of record This a written notice shall be mailed by the clerk by certified mail properly stamped and addressed at least ten days before the date fixed for the trial The provisions of this article may be waived by all counsel of record at a pre trial conference Emphasis added As noted above the record in this matter does not contain for notice that by Regions pursuant to LSA C C P art 1572 request for written notice of trial a September 14 2006 or the trial on was September filed 26 nor 9 written request does the record show prior 2006 a to the Absent a hearing on request for notice of trial date pursuant relief on the basis of the failure to issue such written notice of the date of trial 1321 appeal on to LSA C C P by certified mail See Darnall La 9We App 1 st note that counsel of record this matter Regions Cir on Regions 1572 art John K Darnell Inc v is not entitled to 526 So 2d 1317 writ denied 531 So 2d 273 La 1988 November 29 2006 Subsequently on Regions 18 January filed 2007 a motion to substitute additional some four months after the trial of filed its first request for notice in the record below 8 in default of Specifically C CP 1572 the art by ordinary mail This manner was legally written a of notice provided by In for intervention to dismiss According to the stated that the transcript judgment presented as claims court of the on 14 2006 with a to the trial detennination that the record 14 September court did not Thus the trial motion for dismissal of the intervention judgment September matter of as a 2006 hearing the trial Petition for Intervention will be dismissed for failure prosecute it s on Regions claims with prejudice Regions claims was not made by the trial intervenor e of Error No 2 support Regions contends that the judgment submitted proposed appear to office herein i contends that the trial court erred assignment Regions dismissing Regions petition prejudice court s LSA assigmnent of error lacks merit In this court the clerk to correct Assignment law in request for notice pursuant to the trial were was court for with dismissed specifically with granted stated that the The trial court prejudice that the The written prejudice however signature note to the signed presented by counsel for plaintiff The trial court s dismissal of appear for trial will not be reversed abused its discretion England v action based upon an on appeal absent a Baird 99 2093 La plaintiff s failure showing to that the trial court App 1st Cir 113 00 772 So 2d 905 907 As hearing set forth above the record shows that the trial of the main demand defendant record that s representative Regions was at the was to no be dismissed with defendant Brasseaux also failed to appear 9 to lack continued due Further the trial court made intervention September 14 2006 of service specific ruling prejudice on on the Given that and that the trial date of the main demand was continued intervention with dismissing Regions Finding in dismissing merit its fmd that the trial we to abused its discretion COUlt prejudice Regions argument that the trial abused its discretion court petition of intervention with prejudice we of the trial COUlt to reflect that the dismissal of Regions is without prejudice m amend the judgment petition for intervention 10 CONCLUSION For the above and the trial court is amended intervention is without as moot to 2006 the reasons and as amended transcript of the Costs of this September 26 2006 judgment of provide that the dismissal of the petition for prejudice attach the December 7 denied foregoing appeal are trial court to assessed The motion is affirmed appellant s to brief is against the appellant Regions MOltgage Company AMENDED AND AS AMENDED AFFIRMED oWe set aside 97 664 note that as the mover Regions was required to La App 5th eir 114 98 documentation showing seeking establish the 707 So or trial and to have the dismissal grounds 2d 1274 notice to then counsel record either had not received the notice had left the firm a new for its motion 1276 Dragon completely v Schultz When faced with the service Regions argued that its prior counsel of had failed to advise the firm ofthe trial date and However Regions presented no evidence or testimony to suppOli these claims Further as the trial court properly observed any enors or omissions occasioned by the purported acts or failure to act of Regions prior counsel ofrecord including any failure to appear are matters properly addressed between Regions and its counsel and do not establish enor by the trial cOllli 10
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