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ROY RASPANTI                                                                   *   NO. 2005-CA-1512
VERSUS                                                                         *   COURT OF APPEAL
E. JOHN LITCHFIELD AND                                                         *   FOURTH CIRCUIT
BERRIGAN, LITCHFIELD,
SCHONEKAS, MANN, TRAINA                                                        *   STATE OF LOUISIANA
AND THOMPSON, L.L.C.
                                                                               *
CONSOLIDATED WITH:                                                                 CONSOLIDATED WITH:
ROY RASPANTI                                                                       NO. 2006-CA-0331
VERSUS
E. JOHN LITCHFIELD AND
BERRIGAN, LITCHFIELD,
SCHONEKAS, MANN,
TRAINOR AND THOMPSON,
L.L.C.
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2002-2350, DIVISION “J-13”
Honorable Nadine M. Ramsey, Judge
Judge Terri F. Love
(Court composed of Judge James F. McKay, III, Judge Terri F. Love, Judge Max
N. Tobias, Jr.)
TOBIAS, J., CONCURS AND ASSIGNS REASONS.
Roy Raspanti
110 Veterans Memorial Boulevard
Suite 360
Metairie, LA   700054930
AND
Douglas M. Schmidt
DOUG SCHMIDT, A.P.L.C.
335 City Park Avenue
New Orleans, LA   70119




AND
Dane S. Ciolino
526 Pine Street
New Orleans, LA   70118
COUNSEL FOR ROY RASPANTI
G. Frederick Kelly III
G. FREDERICK KELLY III, LLC
2917 Magazine Street
Suite 201
New Orleans, LA   70115
COUNSEL FOR E. JOHN LITCHFIELD & BERRIGAN, LITCHFIELD,
SCHONEKAS, MANN, TRAINOR AND THOMPSON
AFFIRMED IN PART; REVERSED IN PART AND REMANDED IN PART




This appeal arises from a dispute, between attorneys, over attorney’s fees
pursuant to referrals.   Roy Raspanti successfully represented Mr. and Mrs. Byrd.
However, Mr. and Mrs. Byrd’s previous attorneys sued Roy Raspanti seeking
attorney’s fees based on quantum meruit, tortious interference with a contract, and
unjust enrichment.    Roy Raspanti alleged that E. John Litchfield, of Berrigan,
Litchfield, Schonekas, Mann, Trainor and Thompson, agreed that the Firm would
reimburse his costs and fees for representing himself in the suit.   Roy Raspanti did
not receive monetary reimbursement or a return of the $292,303.15 advance he
paid the Firm for assistance.   E. John Litchfield filed an exception of no cause of
action, which the trial court granted.   The Firm later filed a motion for contempt
and  sanctions  against  Roy  Raspanti.    Roy  Raspanti  alleged  that  the  defense
attorneys lied on the certificates of services of the pleadings and discovery requests
because it stated that all counsel of record had been served.   He did not receive
copies  of  discovery  requests  and  other  pleadings.    The  trial  court  found  Roy
Raspanti in contempt and dismissed his case with prejudice.    The two appeals
regarding the no cause of action as to E. John Litchfield and discovery sanctions
were consolidated in this appeal.
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Roy Raspanti appeals asserting the trial court erred by denying his motion
for a new trial based on the exception of no cause of action and refusing to allow
him to amend his petition.   He also avers that he did not violate the trial court’s
discovery order willfully, in bad faith, or through his fault and he was not “clearly
aware” that noncompliance with the discovery order would result in the dismissal
of his case.   Lastly, Roy Raspanti asserts that the trial court erred in denying his
motion for summary judgment.   We find that the trial court did not err in granting
the exception of no cause of action as to E. John Litchfield.   However, we find that
the trial court abused its discretion by dismissing his case with prejudice and by
declaring  Attorney  Raspanti’s  motion  for  summary  judgment  and  the  Firm’s
exception of no cause of action moot.   Thus, we reverse in part and remand these
matters to the trial court for proceedings consistent with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
E.  John  Litchfield                                                                    (“Attorney  Litchfield”),  of  Berrigan,  Litchfield,
Schonekas, Mann, Trainor and Thompson, L.L.C.  (“the Firm”), engaged in the
referral of cases to Roy Raspanti (“Attorney Raspanti”) with one-third of the fee
going to Attorney Litchfield and the Firm and two-thirds to Attorney Raspanti.   In
1988,  Attorney  Litchfield  referred  Connie  and  Greg  Byrd                          (“the  Byrds”)  to
Attorney Raspanti.   Attorney Raspanti successfully concluded the Byrds’ litigation
and received  $596,606.31 in attorney’s fees.    Attorney Raspanti also expended
$12,000 in costs while representing the Byrds.   The Byrds’ previous attorneys,
Robert and Thomas Keaty (“the Keatys”), sued Attorney Raspanti alleging tortious
interference with a contract, unjust enrichment, and quantum meruit.
Attorney Raspanti alleges that Attorney Litchfield orally agreed, personally
and on behalf of the Firm, to reimburse him for half the cost of defending himself
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against the Keatys.   He asserts that this agreement included attorney’s fees and that
Attorney Litchfield and the Firm would pay half of the resulting judgment or
settlement.   As a result, Attorney Raspanti tendered $292,303.15, from the Byrds’
fee, to the Firm.   Attorney Litchfield permitted Attorney Raspanti’s brother, Joseph
Raspanti, to assist in his defense.    The Firm paid half or  $8,286 of Joseph’s
Raspanti’s  attorney’s  fees  bill.    In                                                 1995,  Joseph  Raspanti  asked  for  further
assistance  in  defending  his  brother  and  Attorney  Raspanti  asked  Attorney
Litchfield  if  he  could  hire  William  Cherbonnier                                     (“Attorney  Cherbonnier”).
Attorney Litchfield agreed but reserved the right to terminate him and stop paying
half  of  Attorney  Cherbonnier’s  bill.    Attorney  Raspanti  alleges  that  Attorney
Litchfield also agreed to hire Thomas Gibbs to assist in his defense.
The Firm did not pay half of the costs, half of Attorney Cherbonnier’s
$9,887.12 bill, half of Attorney Raspanti’s attorney’s fees, and half of Attorney
Raspanti’s bill.   As a result, Attorney Raspanti requested that the Firm return the
$292,303.15 that he tendered the Firm as an advance.
In 2002, Attorney Raspanti sued Attorney Litchfield and the Firm seeking
the return of the money advanced and costs.   Dane Ciolino (“Attorney Ciolino”)
and Douglas Schmidt (“Attorney Schmidt”) enrolled as Attorney Raspanti’s co-
counsel  of  record  in  June                                                             2002  and  October                             2004,  respectively.    Attorney
Litchfield filed a peremptory exception of no cause of action.   No one representing
Attorney Raspanti attended the hearing, and the trial court granted the motion.
Attorney Raspanti asserted he did not receive service of the motion and filed a
motion for a new trial, which the trial court denied.
The Firm filed a motion to compel in April  2005 alleging that Attorney
Raspanti failed to comply with any of their discovery requests and that no attorney
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representing him attended the Rule 10.1 conference scheduled for April 15, 2005.
Attorney Raspanti alleged that he was not served with any of the pleadings or
discovery  requests,  but  that  some  of  his  co-counsel  received  the  pleadings.
Attorney Ciolino and Attorney Schmidt stated, in affidavits, that they received
certain  pleadings,  but  did  not  contact  Attorney  Raspanti  because  all  of  the
pleadings contained a certificate of service clause stating that all attorneys of
record were served.   Attorney Raspanti then filed a motion for summary judgment
against the Firm.   The trial court granted the Firm’s motion to compel and ordered
Attorney Raspanti to provide answers to the interrogatories and requests for the
production of documents within ten days of the hearing or by June 6, 2005.
The  Firm  then  filed  a  motion  for  contempt  and  sanctions  for  Attorney
Raspanti’s violation of the trial court’s discovery order.   The alleged violations
included insufficient answers to discovery and a dispute over the copying of a
15,000 to 18,000 page file.   The Firm filed a second motion for sanctions because
Attorney Raspanti did not attend the scheduled deposition.   The trial court granted
the Firm’s motion, dismissed Attorney’s Raspanti’s case against the Firm with
prejudice, and awarded the Firm $500 in attorney’s fees and costs.   Further, the
trial court determined that the Firm’s peremptory exception of no right of action
and Attorney Raspanti’s outstanding motion for summary judgment were moot.
Attorney Raspanti filed a motion for a new trial, which the trial court also denied.
Attorney Raspanti timely appealed both of the above judgments and the matters
were consolidated.
Attorney Raspanti asserts the trial court erred: 1) by denying his motion for
new  trial  on  the  peremptory  exception  of  no  cause  of  action  as  to  Attorney
Litchfield;  2) by refusing to allow him to amend his petition;  3) because it is
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contrary to the law to dismiss Attorney Litchfield as a defendant; and 4) because
good grounds existed for granting his motion for new trial.    As to the appeal
against the Firm, Attorney Raspanti avers the trial court erred because:  1) the
record did not show that he was clearly aware that noncompliance with the trial
court’s discovery order would result in the dismissal of his case; 2) he did not
violate  the  discovery  order  willfully,  in  bad  faith,  or  through  his  fault;    3)  it
dismissed his case; and 4) it did not grant his motion for summary judgment.
OUTSTANDING APPELLEE MOTIONS
There is one outstanding appellate motion in this matter.   The Firm filed a
motion for contempt and to return the brief of appellant, which was deferred
pending  oral  argument.    We  hereby  deny  the  motion  and  continue  with  the
substance of these appeals.
NO CAUSE OF ACTION
The peremptory exception of no cause of action is a question of law that
requires the appellate court to conduct a de novo review.   Indus. Co. v. Durbin, 02-
0665,  pp.  6-7  (La.                                                                    1/28/03),                                  837  So.  2d  1207,  1213.   “The  function  of  the
peremptory exception of no cause of action is to question whether the law extends
a remedy against the defendant to anyone under the factual allegations of the
petition.”   Id. at p. 6, 837 So. 2d at 1213.                                            “The exception is triable on the face of
the papers and for the purposes of determining the issues raised by the exception,
the well-pleaded facts in the petition must be accepted as true.”  Fink v. Bryant, 01-
0987, p. 4 (La. 11/28/01), 801 So. 2d 346, 349.   The exception of no cause of
action should be granted if it “appears beyond doubt that the plaintiff can prove no
set of facts in support of any claim which would entitle him to relief.”   Indus., 02-
0665, p. 7, 837 So. 2d at 1213.
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The burden of proving an exception of no cause of action remains with the
exceptor.   S. Tools & Supply, Inc. v. Beerman Precision, Inc., 03-0960, p. 6 (La.
App. 4 Cir. 11/26/03), 862 So. 2d 271, 277.                                               “When it can reasonably do so, the
court should maintain a petition against a peremptory exception [of no cause of
action] so as to afford the litigant an opportunity to present his evidence.”   Kuebler
v. Martin, 578 So. 2d 113, 114 (La. 1991).   However, considering the well-pleaded
facts as true, the court cannot grant a no cause of action exception if it requires the
court “to accept as true charges so patently unsound and unfounded as to lead to
the belief that they were inserted merely to prevent the dismissal of the petition.”
Trumbaturi v. Katz & Bestoff, 154 So. 58, 60-61 (La. App. Orleans 1934), rev’d on
other grounds, 158 So. 16 (La. 1934).
In regards to the peremptory exception of no cause of action, “[n]o evidence
may be introduced at any time to support or controvert the objection that the
petition fails to state a cause of action.”   La. C.C.P. art. 931.   However, the trial
court  shall  order  an  amendment  to  the  petition                                     “[w]hen  the  grounds  of  the
objection pleaded  .  .  . may be removed by amendment.”    La. C.C.P. art.  934.
“[A]mendment is not permitted when it would constitute a vain and useless act.”
Butler v. Reeder, 93-764 (La. App. 5 Cir. 3/16/94), 635 So. 2d 1206, 1208.
“A new trial shall be granted . . . [w]hen the verdict or judgment appears
clearly contrary to the law and evidence.”   La. C.C.P. art. 1972.                        “A new trial may
be granted in any case if there is good ground therefore, except as otherwise
provided by law.”  La. C.C.P. art. 1973.
Attorney Raspanti asserts that the trial court erred by denying his motion for
a new trial on the exception of no cause of action, that the trial court should have
permitted him to amend his petition, and that dismissing Attorney Litchfield was
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contrary to the law.   Attorney Raspanti avers that Attorney Litchfield “personally”
agreed to reimburse him as well as speaking on behalf of the Firm.
Attorney Raspanti’s petition seeks dissolution of the alleged oral agreement
and the return of the $292,303.15 advance.   He relies on Honeywell, Inc. v. Sierra,
543 So. 2d 594, 596 (La. App. 4th Cir. 1989), in support of the argument that
Attorney Litchfield personally agreed to reimburse his costs and pay his attorney’s
fees in relation to his defense against the Keatys.   However, Honeywell stated, “the
capacity in which a party executes a document is largely a matter of intent which is
determined from the circumstances of the transaction.”   Id.   Attorney Raspanti’s
petition stated, in part:
VI.
In  April,                                                                              1992,  plaintiff  Roy  Raspanti  received  the
$596,606.31 fee.    In that same April,  1992, defendant
Litchfield  personally,  and  on  behalf  of  defendant
Berrigan, Litchfield, agreed to pay one-half of the cost
defending  the  Keaty  v.  Raspanti  matter,  including
attorneys’  fees  and  that  he  and  defendant  Berrigan
Litchfield  would  be  responsible  for  one-half  of  any
amounts that Roy Raspanti had to pay in the event of a
judgment or settlement of said matter.   In consideration
of those two obligations on the part of the defendant
Litchfield  and  defendant  Berrigan  Litchfield,  and  the
limited assistance defendant Litchfield rendered to Roy
Raspanti in the representation of Greg and Connie Byrd
in Byrd v. Bossier, Roy Raspanti agreed to give and gave
defendant Litchfield and defendant Berrigan Litchfield
$292,303.15  out of the fee he, Roy Raspanti, realized
from  his  representation  of  the  Byrds.                                              This  oral
agreement was confected in New Orleans, Louisiana.
The capacity in which Attorney Litchfield allegedly bound himself in the oral
agreement is in the context of his legal practice and as a member of a limited
liability  company.     Attorney  Raspanti  is  asserting  that  Attorney  Litchfield
personally guaranteed the Firm’s alleged obligation.   La. R.S. 12:1320 states, in
pertinent part:
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B.  Except  as  otherwise  specifically  set  forth  in  this
Chapter, no member, manager, employee, or agent of a
limited liability company is liable in such capacity for a
debt,  obligation,  or  liability  of  the  limited  liability
company.
C. A member, manager, employee, or agent of a limited
liability company is not a proper party to a proceeding by
or against a limited liability company, except when the
object  is  to  enforce  such  a  person’s  rights  against  or
liability to the limited liability company.
As  referenced  in  Honeywell,  Attorney  Litchfield’s  capacity  and  intent  when
entering into the alleged oral contract was in reference to his legal membership in
the Firm.   Accordingly, Attorney Litchfield did not intend to guarantee the Firm’s
alleged obligation personally and is not a proper party for Attorney Raspanti to sue
in order to enforce the Firm’s alleged obligation.
Alternatively, Attorney Litchfield’s alleged oral contract could be construed
as a personal guarantee of the Firm’s alleged obligation to Attorney Raspanti.            “A
contract of guaranty is equivalent to a contract of suretyship.”   Guar. Bank & Trust
Co. v. Jones, 489 So. 2d 368, 370 (La. App. 5th Cir. 1986).   A suretyship “is an
accessory contract by which a person binds himself to a creditor to fulfill the
obligation of another upon the failure of the latter to do so.”   La. C.C. art. 3035.
Suretyship agreements and contracts of guaranty must be explicit and in writing.
La. C.C. art. 3038; Guar. Bank, 489 So. 2d at 371.   Attorney Raspanti stated in his
petition,                                                                                 “[t]his oral agreement was confected in New Orleans.”    There is no
remedy at law for Attorney Raspanti in regards to a guarantee of the Firm’s alleged
obligation because the guarantee was not in writing.   Attorney Raspanti could not
cure  the  lack  of  a  legal  remedy  against  Attorney  Litchfield  by  amending  his
petition pursuant to La. C.C.P. art. 934.   Therefore, we do not find that the trial
court erred by denying Attorney Raspanti’s motion for a new trial, as it was not
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clearly contrary to the law or evidence.
CONTEMPT AND SANCTIONS
La. C.C.P. art.  1471 provides the trial court with varying sanctions used
when a party does not comply with a discovery order.  La. C.C.P. art. 1471 states:
If a party or an officer, director, or managing agent of a
party or a person designated under Articles 1442 or 1448
to testify on behalf of a party fails to obey an order to
provide  or  permit  discovery, including an order made
under Article 1469 or Article 1464, the court in which the
action is pending may make such orders in regard to the
failure as are just, and among others the following:
(1) An order that the matters regarding which the order
was made or any other designated facts shall be taken to
be  established  for  the  purposes  of  the  action  in
accordance  with  the  claim  of  the  party  obtaining  the
order.
(2) An order refusing to allow the disobedient party to
support  or  oppose  designated  claims  or  defenses,  or
prohibiting him from introducing designated matters in
evidence.
(3) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action of proceeding or any part thereof,
or   rendering   a   judgment   by   default   against   the
disobedient party.
(4) In lieu of any of the foregoing orders or in addition
thereto,  an  order  treating  as  a  contempt  of  court  the
failure to obey any orders except an order to submit to a
physical or mental examination.
(5) Where a party has failed to comply with an order
under Article 1464, requiring him to produce another for
examination, such orders as are listed in Paragraphs (1),
(2), and  (3) of this Article, unless the party failing to
comply shows that he is unable to produce such person
for examination.
In  lieu  of  any  of  the  foregoing  orders  or  in  addition
thereto, the court shall require the party failing to obey
the order or the attorney advising him or both to pay the
reasonable expenses, including attorney’s fees, caused by
the failure, unless the court finds that the failure was
substantially justified or that other circumstances make
an award of expenses unjust.
The trial court has vast discretion on imposing sanctions for failing to comply with
9




a discovery order.   Fulgham v. An Unknown Police Officer, 480 So. 2d 417, 418
(La. App. 4th Cir. 1985).   Thus, appellate courts do not reverse the trial court’s
imposition of sanctions absent an abuse of discretion.   Peter v. Touro Infirmary,
05-0317, p. 4 (La. App. 4 Cir. 7/6/05), 913 So. 2d 131, 134.
Failing to obey court ordered discovery is a more  “serious matter” that
requires more “severe sanctions” than failing to comply with discovery.   Horton v.
McCary,  93-2315  (La.  4/11/94),                                                          635  So.  2d  199,  203.    The  dismissal  of  a
complaint with prejudice “is the ultimate sanction for a plaintiff” and “should be
imposed for failure to comply with a discovery order only as a last resort, and only
after the litigant has been afforded the opportunity to be heard.”  Id. at p. 5, 913 So.
2d  at                                                                                     134.                                                                      Dismissal  has  also  been  described  as  a   “draconian  penalty.”
Hutchinson v. Westport Ins. Corp., 04-1592, p. 2 (La. 11/8/04), 886 So. 2d 438,
440.   Further, the sanction of dismissal should be imposed “where a plaintiff is
clearly aware that his non compliance will result in dismissal.”   Helm v. Mervyn’s
Dep’t Store, 97-0547 (La. App. 4 Cir. 8/20/97), 699 So. 2d 129, 131.   Additionally,
the record must establish “that the noncompliance was due to the willfulness, bad
faith or fault of the party, not merely the attorney.”   Peter, 05-0317, p. 5, 913 So.
2d at 134.                                                                                 “Because the sanctions of dismissal or default involve property rights,
those sanctions are generally reserved for the most culpable conduct.”   Horton, 93-
2315, 635 So. 2d at 203.
The Louisiana Supreme Court adopted four factors from the federal courts
“to consider before taking the drastic action of dismissal.”   Hutchinson, 04-1592,
p. 3, 886 So. 2d at 440.   The factors take into account “whether the violation was
willful or resulted from inability to comply,” “whether less drastic sanctions would
be  effective,”                                                                            “whether  the  violations  prejudiced  the  opposing  party’s  trial
10




preparation,”  and                                                                        “whether  the  client  participated  in  the  violation  or  simply
misunderstood a court order or innocently hired a derelict attorney.”  Id.
Attorney Raspanti asserts that the trial court erred in dismissing his suit with
prejudice because he was never served with any pleadings or discovery requests.
He avers that he was not clearly aware that noncompliance with the trial court’s
discovery order would result in the dismissal of his case and that he did not violate
the discovery order willfully, in bad faith, or through his fault.
The court ordered discovery deadline in the case sub judice was June 22,
2005.   The Firm served discovery requests upon Attorney Schmidt.   However, the
certificates  of  service  on  the  requests  contained  the  statement:                  “I  HEREBY
CERTIFY that a copy of the above and foregoing has been served upon all
counsel of record . . .                                                                   .”   The Firm received no response and filed a motion to
compel.   The trial court granted the Firm’s motion to compel and ordered Attorney
Raspanti to provide answers to interrogatories and responses to the request for
production of documents within ten days of the hearing, May 27, 2005, or by June
6, 2005.   The trial court did not indicate which sanctions could be granted if he did
not obey the order.
File Copying
Attorney Raspanti discussed with the Firm, on June 3, 2005, the details of
copying the 15,000 to 18,000 page file it requested.   The Firm agreed to copy the
entire file.   Both the Firm and Attorney Raspanti agreed upon DocuMart to copy
the file for $.15 per page, on June 6, 2005.   The Firm then found an alternative
copy  center,  Choice  Copying  Service,  which  offered  a  rate  of  $.18 per page.
DocuMart  changed  its  quote  to  $.25  per  page  after  viewing  the  file.    After
contacting  DocuMart,  both  parties  agreed  that  the  file  would  be  copied  at
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DocuMart  if  it  could  match  Choice  Copying  Service’s  $.18  per  page  quote.
Monique Weilbaecher, a DocuMart employee, stated in her affidavit, that she
telephoned Rick Kelly (“Attorney Kelly”), the attorney for the Firm, and told him
that  DocuMart  could  match  the  $.18  per  page  quote  if  it  received  a  “written
statement by Choice Copiers.”   She further stated that he never called her back
regarding the price quote, which meant that she could not begin copying the file.
As a result, Attorney Raspanti retrieved his file and waited to hear from Attorney
Kelly.   He stated that upon notice he would return the file to the approved copy
center.   On June 8, 2005, Attorney Raspanti sent his answers to interrogatories and
request for production of other documents, which the Firm stated were evasive and
incomplete.  The Firm contends the responses constituted a failure to answer.
The Firm’s Request to Depose Attorney Raspanti
Attorney Kelly sent a letter, on June 8, 2005, expounding its intent to depose
Attorney Raspanti.   The Firm sought to depose him at noon on either June 15 or
June 21, which was a week or less before the discovery cut-off period and gave
him less than a twenty-four hour period to respond.   Neither of Attorney Raspanti’s
co-counsels of record were available for those dates due to other pending legal
matters.   Attorney Raspanti offered a date for his deposition after the discovery
deadline and Attorney Kelly allegedly agreed predicated upon the condition that
Attorney Raspanti could not conduct any discovery after the deadline.   Attorney
Kelly did not provide further correspondence regarding the deposition and the Firm
did  not  want  to  continue  the  trial.    The  Firm  scheduled  Attorney  Raspanti’s
deposition for June 21, 2005, the day before the discovery deadline even though
the Firm knew that neither of his co-counsel could attend due to other prior legal
commitments.   Attorney Raspanti asserts that he was not served with a subpoena
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and he did not appear.
Affidavit of Attorney Schmidt
Attorney Schmidt stated in his affidavit that he personally told Attorney
Kelly, around April 15, 2005, to serve all pleadings on Attorney Raspanti and that
Attorney Kelly agreed.   He stated that Attorney Kelly understood that Attorney
Raspanti was handling all motions and court appearances prior to trial.   However,
Attorney Schmidt stated that Attorney Kelly served him with nine pleadings and
requests for discovery that included a certificate of service stating that all counsel
of record had been served.   Considering this statement and the agreement he had
with  Attorney  Kelly  regarding  serving  Attorney  Raspanti,  Attorney  Schmidt
assumed Attorney Raspanti received the same documents.   As a result, he did not
forward copies of any of the pleadings to Attorney Raspanti.
Affidavit of Attorney Ciolino
Attorney Ciolino stated in his affidavit that Attorney Kelly served him with
three pleadings, which included the certificate of service certifying that all counsel
of record were served.   He also assumed, due to the certificate’s wording, that
Attorney  Raspanti  received  the  same  pleadings  and  did  not  forward  copies.
Attorney Ciolino also stated that he was not available to appear at any depositions
the week of June 20, 2005.   Again, he reiterated that Attorney Raspanti was to
handle all motions and court appearances prior to trial.
Affidavit of Attorney Raspanti
Attorney Raspanti stated in his affidavit that Attorney Kelly did not serve
him with any pleadings.   Additionally, around April 15, 2005, he told Attorney
Kelly not to serve any pleadings on Attorney Schmidt.   Attorney Kelly allegedly
agreed to serve all future pleadings, etc., on Attorney Raspanti or Attorney Ciolino.
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Attorney Raspanti reiterated this request in his letter, dated April 22, 2005, and in
his memorandum in support of his motion for a new trial on the exception of no
cause of action, dated April  25,  2005.   Attorney Kelly did serve the motion to
continue plaintiff’s motion for summary judgment one day prior to the scheduled
hearing.
Further,  Attorney  Raspanti  stated  he  later  learned  that  Attorney  Kelly
continued to serve Attorney Schmidt.   He said that Attorney Schmidt told him that
he did not forward copies of the pleadings due to the wording of the certificates of
service.   Attorney Raspanti learned on July 22, 2005, that Attorney Ciolino had
been  served  with  several  pleadings.    He  asked  for  Attorney  Ciolino’s  file.
Attorney Ciolino told Attorney Raspanti that he did not forward the pleadings due
to the certificates of service.   Attorney Raspanti did not learn of any discovery
requests from the Firm until Friday, May 27, 2005, in open court.   Attorney Kelly
allegedly stated in open court that he did not think it was proper to serve an
attorney of record who was also the plaintiff although he had agreed to do so.
Trial Court’s Assessment of Contempt & Sanctions
Considering the four factors followed by Louisiana jurisprudence, we find
that the factors weigh against dismissing Attorney Raspanti’s case.   A review of
the record fails to show that Attorney Raspanti’s alleged failure to comply was
willful.   Also, less drastic sanctions would have been more effective because the
assessment of costs would require both parties to come to another agreement as to
how each party would be served and what would be included in the certificate of
service.    The record also documents that any alleged misconduct of Attorney
Raspanti occurred because of the misunderstandings between himself and Attorney
Kelly.   There is no evidence in the record that the alleged failure prejudiced the
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Firm’s trial preparation because the Firm admits, in its brief, that it did not begin
discovery because it was waiting for the abandonment period of three years1 to run
in this case.   In fact, the Firm’s brief used the language “[o]nce it became apparent
that this case would be pursued . . . ” to characterize the discovery in this case.
First,  the  trial  court’s  order  compelling  discovery  did  not  contain  any
specific language regarding that it was considering dismissing Attorney Raspanti’s
case  with  prejudice.    This  Court  upheld  a  dismissal  in  which  the  trial  court
specifically stated that noncompliance would result in a dismissal.   Peter, 05-0317,
p. 5, 913 So. 2d at 134.
Second, the record reveals that the alleged failure to copy the file was due to
miscommunication  and  error  on  behalf  of  both  parties.     Attorney  Raspanti
attempted to comply with the trial court’s order.   According to the record, he and
DocuMart were waiting to hear from Attorney Kelly to begin the copying process.
Third, La. C.C.P. art. 1438 states that “reasonable notice in writing” must be
given to the deponent and every other party to the action.   In the case sub judice,
Attorney Raspanti alleges that he was not subpoenaed for the deposition.   Attorney
Kelly also knew that Attorney Raspanti would not be available for a deposition that
day because neither of his co-counsel of record could attend.   Attorney Raspanti
also offered to schedule his deposition after the deadline with the stipulation that
he would not pursue any discovery of his own after the deadline.
After a thorough review of the record, we find it devoid of evidence that
Attorney Raspanti was clearly aware that failure to comply with the order would
result in the dismissal of his case, which is the most severe penalty.   Additionally,
1 La. C.C.P. art. 561 Abandonment in trial and appellate court reads, in pertinent part:
A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial
court for a period of three years . . .
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the record lacks evidence that Attorney Raspanti’s actions were willful, in bad
faith, or through his own fault.   Although service of one counsel of record usually
equates with service of all co-counsel of record, the record documents apparent
miscommunication between the Firm, Attorney Raspanti, and his co-counsel of
record.   Therefore, we find that the trial court abused its discretion in dismissing
Attorney Raspanti’s case with prejudice and granting the Firm $500 in fees and
costs.   However, some discovery failure occurred in the present case.   Therefore,
Attorney  Raspanti  must                                                                  “show  that  his  failure  was  justified  or  that  special
circumstances would make an award of expenses unjust.”   Allen v. Smith, 390 So.
2d 1300, 1302 (La. 1980).   Accordingly, we reverse the trial court’s judgment and
remand  for  proceedings  consistent  with  this  opinion,  including  a  hearing  to
determine reasonable expenses caused by the discovery failures.
MOTION FOR SUMMARY JUDGMENT
Appellate courts review summary judgments under the de novo standard of
review.    Reynolds v. Select Properties, Ltd.,  93-1480  (La.  4/11/94),  634 So.2d
1180, 1183.   A summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to a material fact, and that
the mover is entitled to judgment as a matter of law.”  La. C.C.P. art. 966(B).
Attorney Raspanti asserts that the trial court erred by declaring his motion
for summary judgment moot after she dismissed his case, with prejudice, against
the Firm.   The trial court did not consider the substance of the motion.   We find
that the trial court committed error in dismissing his suit.   Therefore, Attorney
Raspanti’s  motion  for  summary  judgment  is  no  longer  moot  and  must  be
considered.
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THE FIRM’S EXCEPTION OF NO CAUSE OF ACTION
Pursuant to the above discussion regarding Attorney Raspanti’s motion for
summary judgment, the Firm’s exception of no cause of action is also no longer
moot and must be considered.
DECREE
Accordingly, we find the trial court did not err in granting Mr. Litchfield’s
exception of no cause of action.   However, we find that the trial court abused its
discretion  by  dismissing  Mr.  Raspanti’s  case  with  prejudice  and  by  declaring
Attorney Raspanti’s motion for summary judgment and the Firm’s exception of no
cause of action moot and we reverse.   We remand these matters to the trial court
for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED IN PART
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