GLOBAL TECHNICAL SOLUTIONS, L.L.C. NO. 23-CA-437
VERSUS FIFTH CIRCUIT
RIVER RIDGE ELECTRIC, INC. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 775-178, DIVISION "M" HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
May 22, 2024
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Scott U. Schlegel, and Timothy S. Marcel
REVERSED; REMANDED TSM FHW SUS COUNSEL FOR PLAINTIFF/APPELLANT, GLOBAL TECHNICAL SOLUTIONS, LLC Julie U. Quinn MARCEL, J.
In this case arising from a petition for damages and injunctive relief relating
to a contract for electrical work/services, plaintiff-appellant Global Technical
Solutions, LLC seeks review of a September 11, 2023 judgment of the trial court
denying appellant’s motion to set aside judgment of abandonment. For the
following reasons, we declare that judgment null and remand this case for further
proceedings.
BACKGROUND
GTS and defendant River Ridge Electric, Inc. purportedly entered into a
verbal agreement on or about September 26, 2016 by which GTS was to provide
electrical services for and/or with River Ridge in connection with River Ridge’s
contracts with general contractors for remediation projects relating to the historic
flooding in and near Baton Rouge Louisiana in 2016. In August 2017, GTS filed a
petition for damages and injunctive relief against River Ridge which alleged that
GTS was owed $371,727.50 for services performed from September 2016 through
March 2017. River Ridge filed an answer and affirmative defenses to the petition
on November 1, 2017 and discovery followed.
On November 28, 2018, the trial court heard and granted GTS’s motion to
compel discovery. River Ridge made no appearance at this hearing. The record
indicates that GTS submitted a proposed written judgment with a certificate of
District Court Rule 9.5 compliance on December 5, 2018. However, the written
judgment was not signed and filed by the trial court until January 15, 2020.1
Notice of this judgment was mailed by the clerk of court on January 16, 2020.
Three years later, on January 16, 2023, GTS filed a motion for contempt wherein it
claimed River Ridge had failed to respond to the court’s order compelling
discovery and had failed to pay costs as ordered by the court.
1 The judgment was signed by the pro tempore trial judge.
23-CA-437 1 In response, River Ridge filed an ex parte motion to dismiss the suit on
grounds of abandonment and for failure to prosecute on February 22, 2023.
Attorneys for River Ridge claimed that no step had been taken in furtherance of the
suit between December 13, 2018 and December 14, 2021. The motion was granted
without contradictory hearing on February 23, 2023.2
On March 15, 2023, GTS filed a Motion to Set Aside Dismissal and for
Sanctions wherein it argued that the tolling of the abandonment period had been
interrupted by the trial court issuing the January 15, 2020 judgment. GTS also
sought sanctions against the attorneys for River Ridge for stating that the last
action taken in the prosecution of the case had been December 13, 2018 even
though the authority they cited in support of their motion to dismiss the suit held
that actions taken by the courts, such as the issuance of a judgment, interrupt
abandonment. On March 17, 2023, the trial court issued a Rule to Show cause
setting the hearing on the motion for April 14, 2023. Counsel for GTS filed a
motion to reset the hearing on the Motion to Set Aside. The trial court issued an
order resetting the hearing on the Motion to Set Aside for Monday, May 15, 2023
at 9:00 AM.
The motion to set aside was heard on May 15, 2023. Counsel for GTS did
not make an appearance. Notice issued to counsel for GTS by the clerk of court
had set May 16, 2023 at 9:00 a.m. as scheduled hearing date. In proceedings on
May 15, 2023, the trial court denied GTS’s motion to set aside and for sanctions in
open court. The written judgment of these rulings was not issued until September
11, 2023 pursuant to a request from this Court. Plaintiff’s timely appeal followed.
On appeal, GTS raises three assignments of error:
2 The next day, River Ridge filed an opposition to the motion for contempt arguing that it should be denied or dismissed as moot.
23-CA-437 2 1) The trial court procedurally erred in denying appellant’s motion to set aside dismissal for abandonment on May 15, 2023 for “failure to prosecute” even though GTS had received notice setting the hearing date for May 16; 2) The trial court substantively erred in denying the motion to set aside dismissal for abandonment because not more than three years had elapsed since the last “step” in the case occurred to interrupt abandonment; 3) The trial court erred in denying GTS’s motion for sanctions against River Ridge and/or its counsel for obtaining its ex parte judgment of dismissal for abandonment through misrepresenting the law. We consider this first assignment of error in our discussion below, and pretermit
discussion of the other assignments of error.
DISCUSSION
Notice of Hearing
We begin with an examination of appellant’s first assignment of error:
whether the trial court erred in denying GTS’s Motion to Set Aside Dismissal for
Abandonment for “failure to prosecute” because GTS did not appear for the May
15, 2023 hearing. Louisiana Code of Civil Procedure Article 1672 authorizes the
trial court, on its own motion, to dismiss an action without prejudice when all the
parties thereto fail to appear on the day set for trial. However, Louisiana Code of
Civil Procedure Article 1571 mandates that district courts prescribe rules requiring
adequate notice of trial to all parties. As the comments to that article state,
adequate notice is a minimum requirement for reasons of due process. Further, La.
C.C.P. art 2004 states that “[a] final judgment obtained by fraud or ill practices
may be annulled.”
Generally, a final judgment rendered against a party that has not been served
proper notice of a hearing or trial is a relative nullity. See La. C.C.P. art. 2004;
Nullity of Judgments, 1 Louisiana Civil Law Treatise, Civil Procedure, §12.6, pp.
1-2, fn. 5 (“If notice other than process is not properly served upon a party and
judgment is rendered against the party as a result thereof, the judgment may be
23-CA-437 3 voidable under [La.] C.C.P. art. 2004 as one obtained by fraud or ill practices.”);
Sweeney, Inc. v. Olivier, 589 So.2d 61, 62-3 (La. App. 1st Cir. 1991). The record in
this case shows that notice was sent by the clerk of court on April 24, 2023 to
counsel for GTS stating that the Motion to Reset Motion to Set Aside Order of
Dismissal for Abandonment was fixed for hearing/trial on the 16th of May, 2023 at
9:00 a.m., one day later than the actual hearing date of May 15th. Such notice
advising GTS of the wrong hearing date fails to meet the requirements of due
process. Therefore, we declare the September 11, 2023 judgment of the trial court
null and void. The courts have taken a broad view of what constitutes an “ill
practice” under Article 2004. Sweeney, 589 So.2d at 62. The article is not limited
to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to
encompass all situations wherein a judgment is rendered through some improper
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GLOBAL TECHNICAL SOLUTIONS, L.L.C. NO. 23-CA-437
VERSUS FIFTH CIRCUIT
RIVER RIDGE ELECTRIC, INC. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 775-178, DIVISION "M" HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
May 22, 2024
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Scott U. Schlegel, and Timothy S. Marcel
REVERSED; REMANDED TSM FHW SUS COUNSEL FOR PLAINTIFF/APPELLANT, GLOBAL TECHNICAL SOLUTIONS, LLC Julie U. Quinn MARCEL, J.
In this case arising from a petition for damages and injunctive relief relating
to a contract for electrical work/services, plaintiff-appellant Global Technical
Solutions, LLC seeks review of a September 11, 2023 judgment of the trial court
denying appellant’s motion to set aside judgment of abandonment. For the
following reasons, we declare that judgment null and remand this case for further
proceedings.
BACKGROUND
GTS and defendant River Ridge Electric, Inc. purportedly entered into a
verbal agreement on or about September 26, 2016 by which GTS was to provide
electrical services for and/or with River Ridge in connection with River Ridge’s
contracts with general contractors for remediation projects relating to the historic
flooding in and near Baton Rouge Louisiana in 2016. In August 2017, GTS filed a
petition for damages and injunctive relief against River Ridge which alleged that
GTS was owed $371,727.50 for services performed from September 2016 through
March 2017. River Ridge filed an answer and affirmative defenses to the petition
on November 1, 2017 and discovery followed.
On November 28, 2018, the trial court heard and granted GTS’s motion to
compel discovery. River Ridge made no appearance at this hearing. The record
indicates that GTS submitted a proposed written judgment with a certificate of
District Court Rule 9.5 compliance on December 5, 2018. However, the written
judgment was not signed and filed by the trial court until January 15, 2020.1
Notice of this judgment was mailed by the clerk of court on January 16, 2020.
Three years later, on January 16, 2023, GTS filed a motion for contempt wherein it
claimed River Ridge had failed to respond to the court’s order compelling
discovery and had failed to pay costs as ordered by the court.
1 The judgment was signed by the pro tempore trial judge.
23-CA-437 1 In response, River Ridge filed an ex parte motion to dismiss the suit on
grounds of abandonment and for failure to prosecute on February 22, 2023.
Attorneys for River Ridge claimed that no step had been taken in furtherance of the
suit between December 13, 2018 and December 14, 2021. The motion was granted
without contradictory hearing on February 23, 2023.2
On March 15, 2023, GTS filed a Motion to Set Aside Dismissal and for
Sanctions wherein it argued that the tolling of the abandonment period had been
interrupted by the trial court issuing the January 15, 2020 judgment. GTS also
sought sanctions against the attorneys for River Ridge for stating that the last
action taken in the prosecution of the case had been December 13, 2018 even
though the authority they cited in support of their motion to dismiss the suit held
that actions taken by the courts, such as the issuance of a judgment, interrupt
abandonment. On March 17, 2023, the trial court issued a Rule to Show cause
setting the hearing on the motion for April 14, 2023. Counsel for GTS filed a
motion to reset the hearing on the Motion to Set Aside. The trial court issued an
order resetting the hearing on the Motion to Set Aside for Monday, May 15, 2023
at 9:00 AM.
The motion to set aside was heard on May 15, 2023. Counsel for GTS did
not make an appearance. Notice issued to counsel for GTS by the clerk of court
had set May 16, 2023 at 9:00 a.m. as scheduled hearing date. In proceedings on
May 15, 2023, the trial court denied GTS’s motion to set aside and for sanctions in
open court. The written judgment of these rulings was not issued until September
11, 2023 pursuant to a request from this Court. Plaintiff’s timely appeal followed.
On appeal, GTS raises three assignments of error:
2 The next day, River Ridge filed an opposition to the motion for contempt arguing that it should be denied or dismissed as moot.
23-CA-437 2 1) The trial court procedurally erred in denying appellant’s motion to set aside dismissal for abandonment on May 15, 2023 for “failure to prosecute” even though GTS had received notice setting the hearing date for May 16; 2) The trial court substantively erred in denying the motion to set aside dismissal for abandonment because not more than three years had elapsed since the last “step” in the case occurred to interrupt abandonment; 3) The trial court erred in denying GTS’s motion for sanctions against River Ridge and/or its counsel for obtaining its ex parte judgment of dismissal for abandonment through misrepresenting the law. We consider this first assignment of error in our discussion below, and pretermit
discussion of the other assignments of error.
DISCUSSION
Notice of Hearing
We begin with an examination of appellant’s first assignment of error:
whether the trial court erred in denying GTS’s Motion to Set Aside Dismissal for
Abandonment for “failure to prosecute” because GTS did not appear for the May
15, 2023 hearing. Louisiana Code of Civil Procedure Article 1672 authorizes the
trial court, on its own motion, to dismiss an action without prejudice when all the
parties thereto fail to appear on the day set for trial. However, Louisiana Code of
Civil Procedure Article 1571 mandates that district courts prescribe rules requiring
adequate notice of trial to all parties. As the comments to that article state,
adequate notice is a minimum requirement for reasons of due process. Further, La.
C.C.P. art 2004 states that “[a] final judgment obtained by fraud or ill practices
may be annulled.”
Generally, a final judgment rendered against a party that has not been served
proper notice of a hearing or trial is a relative nullity. See La. C.C.P. art. 2004;
Nullity of Judgments, 1 Louisiana Civil Law Treatise, Civil Procedure, §12.6, pp.
1-2, fn. 5 (“If notice other than process is not properly served upon a party and
judgment is rendered against the party as a result thereof, the judgment may be
23-CA-437 3 voidable under [La.] C.C.P. art. 2004 as one obtained by fraud or ill practices.”);
Sweeney, Inc. v. Olivier, 589 So.2d 61, 62-3 (La. App. 1st Cir. 1991). The record in
this case shows that notice was sent by the clerk of court on April 24, 2023 to
counsel for GTS stating that the Motion to Reset Motion to Set Aside Order of
Dismissal for Abandonment was fixed for hearing/trial on the 16th of May, 2023 at
9:00 a.m., one day later than the actual hearing date of May 15th. Such notice
advising GTS of the wrong hearing date fails to meet the requirements of due
process. Therefore, we declare the September 11, 2023 judgment of the trial court
null and void. The courts have taken a broad view of what constitutes an “ill
practice” under Article 2004. Sweeney, 589 So.2d at 62. The article is not limited
to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to
encompass all situations wherein a judgment is rendered through some improper
practice or procedure which operates, even innocently, to deprive the party cast in
judgment, of some legal right, and where the enforcement of the judgment would
be unconscionable and inequitable. W.G.T. v. E.A.A., 14-4 (La. App. 5 Cir.
9/10/14), 150 So.3d 339, 348-49.
In light of this determination, we pretermit any discussion concerning
appellant’s other assignments of error. We remand this case for further
proceedings consistent this judgment.
REVERSED; REMANDED
23-CA-437 4 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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23-CA-437 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE) JULIE U. QUINN (APPELLANT) CHARLES V. CUSIMANO, III (APPELLEE) WILLIAM PETER CONNICK (APPELLEE)
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