
    Walter E. JAMES, Antoinette Hopkins, Audrey Raymond as Tutor for Heir Michael A. James and the Estate of Walter K. James v. MAISON ORLEANS II, INC., et al.
    No. 2004-CA-1132.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2005.
    Opinion on Rehearing July 27, 2005.
    
      Robert J. Caluda, The Caluda & Reben-nack Law Firm, Thomas G. Robbins, The Law Firm Of Robert J. Caluda (on rehearing), Metairie, Counsel for Defendant/Ap-pellee.
    Andrew C. Wilson, Burke & Mayer, Clarence Roby, Jr., New Orleans, Counsel for Appellants/Intervenors, Peter A. Bar-bee and Barbee & Associates.
    Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, Sr., Judge MAX N. TOBIAS, Jr., Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME.
   _[¿TOBIAS, J.

The appellants, Peter A. Barbee and Barbee and Associates (collectively “Bar-bee”), have filed the instant appeal from judgments of the trial court that awarded most of Barbee’s attorney’s fees to appel-lee, Robert J. Caluda (“Caluda”). In addition, Barbee has filed three peremptory exceptions with this court, namely, no right of action, no cause of action, and non-joinder of an indispensable party, pursuant to La. C.C.P. art. 927. After reviewing the record and the applicable law, we vacate all judgments entered by the trial court relating to attorney’s fees and their division, and we remand the matter to the court below for further proceedings.

This matter arises out of a lawsuit that was originally filed on behalf of Walter E. James, Antoinette James, and Michael James, the three major children of Walter Kerry James (the “decedent”), who was killed in a pedestrian-automobile accident. The decedent had wandered out of the Maison Orleans, a retirement facility where he was a resident. Barbee was originally retained in August 2000 by the three major children to pursue an action against the driver of the vehicle that | astruck the decedent as well as the Maison Orleans, which failed to protect the decedent from wandering into the street. Contracts of representation were executed by and on behalf of the major children authorizing Barbee’s actions. Before, filing suit, Barbee and his co-counsel, Perrin Butler, settled with the driver of the vehicle for policy limits of $10,000.00.

After a lengthy investigation, Barbee filed suit in June 2001 on behalf of his clients. In July 2001, Audrey Raymond, divorced wife of the decedent and mother of the three major children, appeared at Barbee’s office to discharge him and demand the file. Ms. Raymond stated that she was acting on behalf of Michael James, who was mentally impaired, and claimed to be his tutor or mandatary. In this regard, she represented that a power of attorney had been executed at some point for her to conduct Michael’s legal affairs. Barbee was discharged and Caluda was subsequently retained as counsel for Ms. Raymond, Ms. Hopkins, and Michael James, and appeared on their behalf in the original lawsuit filed by Barbee.

Meanwhile, Walter James asked Barbee to continue to represent him. In addition, Walter James opened his father’s succession and was appointed administrator by court order. Thus, Barbee represented both Walter James and the decedent’s estate by contract.

The case went to trial on the merits before a jury on 19-23 May 2003. The jury awarded the decedent’s estate $230,000.00 in general damages. The jury also Lawarded $50,000.00 each to Ms. Hopkins and Walter James, and $300,000.00 to Michael James for their respective surviv- or actions. In a subsequent post-trial motion, the trial court ordered attorney’s fees of $210,000.00 based on La. R.S. 40:2010.9, as well as court costs. The defendants appealed the judgment.

While the appeal was pending, Barbee filed an intervention pursuant to La. R.S. 37:218 for his share of fees owed under the initial contract with Ms. Hopkins and Michael James, due to the apparent attempt by Caluda to mediate two of the ciaims with the defendants. Consequently, the parties agreed to mediate all claims before an independent mediator on li December 2003, at which time a total settlement of $600,000.00 was agreed upon, with each heir receiving the sum of $200,000.00, less costs and a 40% attorney’s fee. According to the mediation agreement, checks were to be made payable to the attorneys and the clients for whom they were counsel of record. Because the question of how Ca-luda’s fees would be shared with Barbee was unsettled, Caluda agreed at the mediation to ■ -deposit the fees in dispute, $160,000.00, into an escrow account.

Caluda apparently filed an answer to the intervention on behalf of Ms. Hopkins and Michael James. Instead of abiding by his agreement to deposit his entire fee into escrow, Caluda obtained a court order on 23 January 2004 that allowed him to deposit only 25% of his fees. Caluda then attempted to set | ¡¿Barbee's petition for intervention for trial through a motion filed on 2 January 2003. Because discovery was not complete and Caluda did not confer with Barbee or his other counsel of record, an objection was filed. The trial court never ruled on the objection, but on 5 January 2004, set the matter for trial on 16 March 2004. Inexplicably, notice to Barbee of the trial setting did not issue until 23 February 2004, the day before Mardi Gras. Barbee was out of town during and after Mardi Gras week, so he was given little time to prepare for the trial.

On 16 January 2004, Caluda, appearing in “proper person,” filed a “cross-claim and/or re-conventional demand to Petition for Intervention.” The claim was filed only against Barbee and not the law firm, or against Barbee’s co-counsel, Perrin Butler, or against Walter E. James, the decedent’s estate, or their recovery. Caluda sought the return of all or part of Barbee’s fee, which had been distributed following the mediation without objection from Calu-da or his clients. An exception to service was filed by Butler, but never ruled upon by the trial court. The record does not reflect that an answer to the cross-claim was ever filed.

After setting the intervention for trial, Caluda sent interrogatories and a request for production of documents. It is unknown when the discovery was sent to Barbee. In any event, Caluda filed an expedited motion to compel discovery and for Barbee to escrow 25% of his attorney’s fee generated from the settlement 18of the claim of Walter James, or the sum of $20,000.00. Although the motion is not in the record, the trial court signed a judgment on 16 March 2004, ordering that the discovery be completed no later that 15 March 2004 and the funds be placed in escrow no later that 17 March 2004.

The trial took place on 16 March 2004, despite Butler’s objection and the fact that Barbee’s attorney, Clarence Roby, had requested a continuance after having just enrolled. The basis of the request was that Barbee was not present as he was Chief Public Defender with nine felony jury trials set in Plaquemines Parish that day and would further be interviewing witnesses later that day and could not attend. The court denied the continuance, dismissed Barbee’s intervention with prejudice, and proceeded to trial on Caluda’s cross-claim.

At the conclusion of the trial, the court vacated the previous order requiring Calu-da to escrow his attorney’s fees and ordered Barbee to place his attorney’s fees in escrow. On 18 March 2004, judgment was rendered that placed these orders in writing and further awarded two-thirds of Barbee’s fees generated by the claim of Walter E. James to Caluda, without specifying a specific dollar amount.. No reasons for judgment were given. Barbee filed a suspensive appeal from the judgment of 18 March 2004 and a devolutive appeal from any further judgments of the court.

17Although the court granted Bar-bee’s motions for appeal in April, Caluda filed a motion on 7 May. 2004 to show cause why he should not be awarded two-thirds of the $4,000.00 fee that was placed in escrow. The fee was generated through the pre-trial settlement with the driver of the vehicle that struck the decedent, before Caluda became counsel of record! The trial court set the rulé for hearing on 18 June 2004, however, by judgment dated 6 May 2004, the rule was granted.

The appellant has set forth four assignments of error for the- court’s review. However, the record on appeal does not permit the court to determine the issues presented. First of all, the record does not contain Caluda’s answer to Barbee’s petition for intervention, although it is referred to in the record. In addition, the record does not contain Barbee’s answer to Caluda’s cross-claim. Therefore, nothing exists to show that issue was ever joined so that the case could proceed to trial.

La. C.C.P. art. 1571 states in pertinent part:

A. (1) The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(a) Require adequate notice of trial to
all parties; and
(b) Prescribe the order of preference
in accordance with law.
(2) These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed. [Emphasis added.]

|rAs held by the court in Phillips v. Schmidt, 311 So.2d 471, 474 (La.App. 4 Cir.1975):

Examining the record, we note that, at the time of the motion of defendant-appellee to set the matter on the non-jury docket and the subsequent fixing of the trial dates by the Court, there was no answer filed in the record to' the defendant’s réconventional demand. C.C.P. Article 1571 prohibits the assignment of ordinary proceedings for trial except after answer filed. Thus the defendant in filing his motion to set the matter down for trial was premature and the trial judge’s action in granting a specific trial date is of no effect. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir.1969).

In addition, the court, in Bouton v. City of Abbeville, 458 So.2d 1042, 1042-43 (La.App. 3 Cir.1984) stated:

The record indicates that at the time the Order assigning the trial date was signed, there had been no answers filed on behalf of any of the defendants.
Applicable here is La. C:C.P. Art. 1571 which prohibits'the assignment of ordinary proceedings for trial except after answer is filed. Any judgment entered not in compliance with this ' provision is null and void. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir.1969), and Deville v. Gaudet, 361 So.2d 980 (La.App. 3rd Cir.1978).
Therefore, as this ordinary proceeding was assigned for trial on the merits pri- or to answers being filed, the judgment of dismissal is null and void[.]

The same rule applies to the matter before us. Answers to the petition for intervention and cross-claim do not exist in the record before this court. Further, nothing exists in the record , that impliedly can be read as an answer. In addition, the trial court was required to dispose of the declinatory exception of improper 19service before proceeding to further matters presented. Finally, we question the propriety of the cross-claim/reconventional demand by Caluda, as he did not seek court approval before its filing. See La. C.C.P. art. 1033. Despite the fact that Barbee was not present for trial, the trial court’s judgment, dismissing his intervention with prejudice, is null and void, as are all judgments issued by the court. Therefore, we vacate all judgments rendered in this matter relating to attorney’s fees and their division and remand the case to the court below for rulings on the declinatory exception of improper service, as well as the peremptory exceptions filed by Barbee on appeal. Once the exceptions are disposed of and all answers are filed, the matter may then be set for trial, if one is necessary, in compliance with the Local Rules of the Civil District Court for the Parish of Orleans and law. We also note that monies once in escrow awaiting a resolution of the interventions have been released. To ensure that the parties are placed in the same position they were before trial, the trial court may order in its discretion that all money be returned to escrow.

Based on the foregoing, all judgments of the trial court are reversed and vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion.

JUDGMENTS REVERSED AND VACATED; REMANDED.

ARMSTRONG, C.J., concurs.

BELSOME, J., concurs.

h ARMSTRONG, C.J.,

concurs.

The record on appeal does not allow this Court to review the trial court judgments since issue has not been joined and the record does not indicate that the exceptions and objections raised by various parties have been ruled upon by the trial court.

I,BELSOME, J.,

concurs.

I write separately to concur in this result solely based upon the absence of an answer to the primary intervention. This Court has previously recognized a trial court judge has inherent power to take whatever reasonable actions are necessary to maintain control of his docket. Brower v. Quick Service Body Shop, 377 So.2d 878 (La.App. 4 Cir.1979). The majority opinion should not stand for the proposition that this principle has been restricted in any fashion.

ON REHEARING

hMAX N. TOBIAS, JR., Judge.

Appellee, Robert J. Caluda (“Calu-da”), has filed an application for rehearing coupled with a motion to supplement the record with a copy of the answer filed by his clients, Michael A. James and Antoinette Hopkins, to the intervention filed by appellants, Peter A. Barbee and Barbee & Associates, L.L.C. (collectively “Barbee”). Prior thereto, but before the opinion was rendered, Caluda also supplemented the record with Barbee’s answer to Caluda’s petition for reconvention along with Bar-bee’s answer to the interrogatories propounded to him. Because some of these pleadings were absent from the appellate record we reviewed, we are now required to consider them. In light of the new pleadings, we must amend our earlier opinion, and consider other issues raised in the appeal, which were pretermitted due to the procedural problems of this matter.

| gBarbee filed three peremptory exceptions in this court before the opinion was rendered. Pursuant to La. C.C.P. art. 2163, the appellate court must consider peremptory exceptions filed for the first time in this court. The first two exceptions, no right of action and no cause of action, relate to the fact that Caluda filed a cross-claim/reconventional demand without being a party to the litigation. Obviously, this pleading was actually a petition for intervention. Although Caluda did not seek leave of court before filing his intervention, Barbee filed an answer to the intervention (referred to as a reconven-tional demand in the answer). Thus, we find that these exceptions were waived.

The third exception filed by Barbee involves the non-joinder of a party under Articles 641 and 642 pursuant to La. C.C.P. art. 927(A)(3). In particular, Bar-bee argues that Caluda failed to join as a defendant attorney Perrin Butler (“Butler”), who was attorney of record and Bar-bee’s co-counsel in the underlying litigation. La. C.C.P. art. 641 states as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

|sWe note that in his cross-claim/recon-ventional demand, Caluda named only Bar-bee as a defendant. However, he failed to name Barbee and Associates, Barbee’s law firm and, more importantly, Butler, who was counsel of record in the underlying litigation. In fact, Butler was the only attorney listed on every pleading filed on behalf of Walter E. James, individually and as administrator for the Estate of Walter Kerry James, although the contingency fee contract was signed by Barbee alone. It is also noted that Butler participated in the underlying trial as counsel for James, et al. Therefore, we find that Bar-bee and Associates and Butler have an interest in the fee that Caluda was awarded against Barbee. In addition, we find that the interests of Barbee, his law firm, and Butler are so interrelated that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action. Pecoraro v. The Napoleon Room, Inc., 95-00511 (La.App. 5 Cir. 12/13/95), 666 So.2d 1151.

In James Minge & Associates v. Hanover Insurance Co., 96-2308 (La.App. 4 Cir. 4/2/97), 692 So.2d 728, this court found that a successor attorney was an indispensable party in a lawsuit where the plaintiff sued to recover his fee from a client and its insurer in order to insure that the client did not pay an excessive fee. In the case at bar, Caluda claims that he is entitled to recover fees from Barbee based on the amount of work each attorney performed. We assume that Barbee and Butler divided the fee in some manner based on the services each provided to their clients. Thus, the work performed by all three attorneys must be examined in order to determine a fair division of the attorney’s fees.

An adjudication made without making a person described in Article 641 a party to the litigation is an absolute nullity. Frey v. American Quarter Horse Association, 95-157, p. 7 (La.App. 5 Cir. 7/25/95), 659 So.2d 849, 852. When an appellate court notices the absence of indispensable parties to a suit on appeal, the appropriate remedy is to set aside the judgment and remand the matter for joinder of the absent parties and retrial. Succession of Treadaway, 01-0080 (La.App. 4 Cir. 3/7/01), 782 So.2d 1142; Terrebonne Parish School Bd. v. Bass Enterprises Production Co., 02-2119 (La.App. 1 Cir. 8/8/03), 852 So.2d 541, writ denied, 03-2873 (La.1/9/04), 862 So.2d 985. Consequently, we set aside the judgment in favor of Caluda and remand the matter to the trial court for a new trial.

Based on the foregoing, we grant the peremptory exception of non-joinder of a party pursuant to La. C.C.P. art. 641, reverse and vacate all judgments rendered below, and remand for a new trial.

JUDGMENTS REVERSED AND VACATED; REMANDED.

ARMSTRONG, C.J., concurs.

BAGNERIS, J., concurs in part and dissents in part for the reasons assigned by Judge BELSOME.

BELSOME, J., concurs in part and dissents in part with reasons.

| ^ARMSTRONG, C.J.,

concurs.

I have reviewed the majority opinion on rehearing, and while I agree with the legal principles enunciated therein, I must respectfully maintain my original conclusion that the record on appeal is insufficient to allow this Court to review the trial court’s judgments. Issue has not been joined and the record does not indicate that the exceptions and objections raised by various parties have been ruled upon by the trial court.

BAGNERIS, J., concurs in part and dissents in part for the reasons assigned by Judge BELSOME.

hBELSOME, J.,

concurs in part and dissents in part with reasons.

I respectfully concur in part and dissent in part. I concur with the majority’s result that the judgment regarding the cross-claim and/or reconventional demand to the petition for intervention filed by Robert J. Caluda be reversed and vacated and remand for a new trial. However, I disagree with the majority’s opinion that all judgments rendered below be reversed and vacated and remanded for a new trial, which would include the petition for intervention filed by Peter A. Barbee and the firm of Barbee & Associates, L.L.C. That judgment, dismissing the intervention, should be affirmed.

On January 5, 2004, the trial judged signed an order setting March 16, 2004, as the trial date for the petition for intervention. During the intervention trial, according to the trial transcript, counsel for Mr. Barbee, Mr. Clarence Roby, Jr., stated, the day before trial, Mr. Barbee was having problems trying to find somebody to cover his docket in the 25th Judicial District Court in Plaquemines Parish where he serves as a supervisor in the Indigent Defenders Office. Mr. Roby further stated that, the day of trial, he spoke with Mr. Barbee as late as three o’clock and at that time, Mr. Barbee was in the proceeding. It was only at that time which Mr. Roby made a motion to have the matter continued.

|2Trial judge has inherent power to take whatever reasonable actions are necessary to maintain control of his docket. Brower v. Quick Service Body Shop, 377 So.2d 878 (La.1979). A trial judge must look to the facts of each case when a motion to continue is requested. The factors to consider are “diligence, good faith and reasonable grounds.” Katz v. Melancon, 467 So.2d 1284, 1285 (La. 4 Cir.1995). In this case, a motion to continue was not filed until the morning of trial. Further, the court in its oral reasons for judgment, stated:

... I think at the very least Mr. Barbee could have filed a motion to continue this matter. At the very least, he could have been honest with this Court as to his whereabouts because my staff has called and he is not in either section of court in Plaquemine’s Parish. And this has been a very contentious and hotly contested matter that I’ve dealt with on lots of days, and it’s just a little strange to me that the day it’s set to go to hearing there is no appearance, no phone call.

[Emphasis added.]

It is evident to this author that the trial court did not find diligence, good faith and reasonable grounds to grant the continuance and did not err in dismissing the intervention with prejudice. In fact, once the trial date was set on January 5, 2004, over intervenor’s objection, intervenor failed to file any written motions, or writ applications until the morning of trial. Then, only orally moving for a continuance due to an alleged conflict. Once investigated by the trial court, this alleged conflict was found to be not only misleading, but so false as to constitute clearly sanc-tionable behavior given the history and record of the case.

The fact that the trial court has wide discretion to control its own docket, that Peter A. Barbee and the firm of Barbee & Associates, L.L.C. were represented by independent counsel at trial, and they had adequate notice, I find there was no clear abuse of discretion in the trial courts denying their request for continuance and dismissing the intervention. |s Therefore, I would affirm the trial court regarding the petition for intervention filed by Barbee. 
      
      . At some point, the attorney’s fees of $4,000.00 were deposited into escrow for a later disbursal.
     
      
      . La. R.S. 40:2010.6 through 40:2010.9 pertains to nursing homes. It creates, inter alia, a residents’ bill of rights, establishes penalties for violation of residents’ rights, and provides for civil enforcement of residents’ rights. Any plaintiff who prevails in a civil enforcement action is entitled to recover reasonable attorney's fees and court costs. See § 2010.9(A).
     
      
      .We gather this information from the briefs filed into the appellate record. No other evidence exists to support these facts.
     
      
      . The answer is referred to, but not contained, in the record on appeal.
     
      
      . Appendix 8, Rule 1 of the Local Rules for the Civil District Court for the Parish of Orleans states that a case may not be placed on the trial docket unless the motion requesting same states that all issues have been joined, all discovery is completed, and all motions are filed and resolved. In addition, the rules state that the mover of the motion must certify that trial counsel for all parties have conferred, in person, to confirm that the foregoing have been accomplished.
     
      
      . At oral argument, counsel stated that Bar-bee was forced to file an answer after Caluda filed a default into the record. However, neither pleading is contained in the appellate record. See infra n. 9.
     
      
      . The record contains testimony from the 16 March 2004 trial. When Mr. Roby represented to the trial court that Barbee was engaged in Plaquemines Parish, the trial court called 34th Judicial District Court for the Parish of Plaquemines and was told that Barbee was not in court at that time. Because Mr. Roby was not prepared to present Mr. Barbee's claim for intervention, the trial court dismissed the intervention with prejudice.
     
      
      . Caluda suggested to the court at the conclusion of the trial that one-third of Barbee’s fees would be an appropriate amount to be awarded pursuant to the cross-claim.
     
      
      . On 2 May 2005, a correspondence from Caluda was received by the court, to which was attached a stamped copy of Barbee's answer to Caluda’s reconventional demand, without a motion to supplement the record. The face of the answer indicates that it was filed on 4 March 2004 and served on Caluda through the Jefferson Parish Sheriff's Office sometime after 19 March 2004. Even assuming that a motion to supplement the record had been filed and granted, the record is still deficient for its failure to contain an answer by Caluda to Barbee's petition for intervention.
     
      
      . Since the record on appeal does not reflect that an answer to the Barbee intervention was filed, although it is alleged that one was, court approval is needed only if Caluda’s intervention (albeit styled as a "cross-claim/reconven-tional demand') was filed after an answer was filed.
     
      
      . It is the responsibility of the clerk of the trial court from which a case is appealed to prepare the record for the court of appeal. Uniform Rules-Courts of Appeal R. 2-1.16. It appears from the record before us that the clerk prepared the entire record and not just portions as designated by the parties. Nonetheless, the parties have a duty to examine the appellate record to determine if the record is complete. We were presented with an instance that at least two pleadings were absent from the record below. Due to the parties' failure to confirm the record's completeness, this appeal has been made more complicated, since our original opinion was based on the absence of these pleadings.
     