Rick Sutton v. Jack Adams

RICK SUTTON * NO. 2019-C-0795

VERSUS *
COURT OF APPEAL
JACK ADAMS, ET AL *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

RICK SUTTON NO. 2019-C-0845

VERSUS

JACK ADAMS, CHARLES ADAMS,
POLLY POINT IMPORTS CORP.

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-11427 C\W 2017-03907, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)

Robert G. Harvey, Sr.
LAW OFFICE OF ROBERT G. HARVEY, SR., APLC
600 North Carrollton Avenue
New Orleans, LA 70119

Donald C. Douglas, Jr.
THE DOUGLAS LAW FIRM, LLC
1070 West Causeway Approach
Suite B
Mandeville, LA 70471

Matthew A. Sherman
Daniel E. Buras, Jr.

Patrick R. Follette
CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE,
STAKELUM & HAYES, LLP
One Galleria Boulevard Suite 1100
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/RELATOR

Kim M. Boyle
Rebecca Sha
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130

Gregory W. Kehoe
GREENBERG TRAURIG, P.A.
101 E. Kennedy Blvd., Suite 1900
Tampa, FL 33602

COUNSEL FOR DEFENDANTS/RESPONDENTS

WRIT GRANTED; RELIEF DENIED

OCTOBER 12, 2022

SCJ
EAL
RLB
JCL
RML
In these two consolidated writs, Rick Sutton seeks review of the September

3, 2019 judgment rendered by Orleans Civil District Court Div. D,1 which granted

Polly Point Import Corp.’s motion to transfer Sutton’s Petition to Annul; granted

Jack Adams’ motion to transfer and consolidate Sutton’s Motion to Declare

Judgment an Absolute Nullity with the Petition to Annul; and denied Sutton’s

exception of improper service of process. Based on our review of the record of

these writs and the related civil proceedings involving these parties, and in light of

applicable law, we grant the writs but deny relief, finding no error in Div. D’s

September 3, 2019 judgment.

1 We note the Division of Orleans Civil District Court to which this case was allotted, because

there are overlapping proceedings and conflicting judgments in the Adams/Sutton litigation.

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FACTUAL AND PROCEDURAL BACKGROUND

These consolidated writs come before this Court as part of a web of

litigation and appeals involving Jack Adams and Rick Sutton, in a protracted

dispute over their failed business relationship and the control of two business

entities, RJANO Holding, Inc. and Maison Royale, LLC.2

In June 2011, Adams and Sutton entered into a business relationship for the

purpose of leasing property at 501 Royal Street (the “Property”) and operating a

fine jewelry store and art gallery at that location. Adams and Sutton did not have a

written partnership agreement or business plan, but the parties agreed to form two

entities: RJANO, a corporation to lease the Property; and Maison Royale, an LLC

created to operate the store. By October 2014, the business relationship between

Adams and Sutton had deteriorated; and, since then, Adams and Sutton have been

locked in a series of lawsuits stemming from their failed business relationship.

For purposes of understanding the issues presented herein, we provide the

following relevant background of the Adams/Sutton litigation.3

2 The Adams/Sutton litigation includes six civil suits filed in Orleans Parish Civil District Court,

all but two of which were allotted to different divisions of the district court. Four appeals and
four writ applications, arising from four of the underlying civil suits, were lodged in this Court in
2019. In January 2020, this Court sua sponte consolidated all four appeals and four writ
applications. Due to the consolidation of multiple cases, new briefing orders were issued. Oral
arguments were set for April 28, 2020, but continued without date due to the COVID-19
pandemic. Thereafter, the resetting of this consolidated matter was continued and delayed three
more times due, respectively, to a stay of the matter, the closure of the Court due to Hurricane
Ida, and a continuance requested on account of the health of lead counsel for Sutton. Oral
arguments for the consolidated appeals and writs were held before the five-judge panel on May
20, 2022. After submission, upon further consideration, this Court ordered that the appeals be
unconsolidated to address the issues presented in each with more precision and clarity.
3 A synopses of all Adams/Sutton suits is provided in the related opinion of Adams v. Sutton, 19-

0247 (La. App. 4 Cir. 10/12/2022), -- So.3d –, (hereinafter “Adams I”) rendered on the same date
as the instant appeal.

2

“RICO” suit (Div. D)

In November 2016, Sutton filed a petition for damages against Adams;

Adams’ father, Charles Adams; and Polly Point Imports Corp., alleging (1)

violations of the Louisiana Racketeering Act (“RICO”); (2) violations of the

Louisiana Unfair Trade Practices Act (“LUTPA”); (3) fraud and misrepresentation;

(4) breach of fiduciary duty; and (5) detrimental reliance (the “RICO suit”).4 The

RICO suit was allotted to Div. D.

In this suit, Sutton claimed that Adams, Adams’ father, and Polly Point

impermissibly sold jewelry in the Maison Royale store at “fire sale” prices, in

violation of RICO and LUTPA statutes, through fraudulent means, and in breach

of fiduciary duty to Sutton, thereby causing damages to Sutton. In response,

Adams and the other defendants filed various exceptions.

On October 25, 2017, Div. D rendered judgment granting Adams’

exceptions of no cause of action and no right of action as to Sutton’s RICO claims,

LUTPA claims, and breach of fiduciary duty claims; granting Adams’ exception of

no cause of action as to Sutton’s claims of fraud and misrepresentation and

detrimental reliance; and dismissing all of Sutton’s claims against all named

defendants with prejudice. On appeal, this Court affirmed the trial court’s

judgment and its dismissal of Sutton’s RICO suit. Sutton v. Adams, 18-0196 (La.

App. 4 Cir. 12/19/18), 318 So.3d 776. Thereafter, the Louisiana Supreme Court

denied writs and Sutton’s application for reconsideration. Sutton v. Adams, 19-346

(La. 4/22/19), 267 So.3d 1112, reconsideration denied, 19-00346 (La. 9/6/19), 278

4 Rick Sutton v. Jack Adams, Charles Adams and Polly Point Imports Corp., CDC No. 2016-

11427.

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So.3d 362. Accordingly, the October 25, 2017 judgment rendered by Div. D

(“RICO judgment”) is a final judgment.

“Abuse of Process” suit (Div. L)

On April 25, 2017, Adams filed suit against Sutton alleging an abuse of

process by Sutton in the filing of the RICO suit.5 Subsequently, on March 28,

2019, Sutton filed a reconventional demand to Adams’ Abuse of Process suit, a

petition for declaratory judgment, and a third party demand against Maison Royale.

In his pleadings, Sutton sought judgment finding him to be a fifty-percent partner

in RJANO and a fifty-percent member of Maison Royale, and he asserted that

Maison Royale is a necessary party to all proceedings in Div. L. In opposition,

Adams and Maison Royale, separately, filed several exceptions seeking to dismiss

Sutton’s reconventional demand and third party demand, respectively.

On June 17, 2019, Div. L held a hearing only on the exceptions filed by Jack

Adams and took the matter under advisement. On June 20, 2019, Div. L rendered

a judgment denying the exceptions filed by Maison Royale, with no mention of the

exceptions filed by Adams.

On June 26, 2019, Sutton filed, as one pleading, a motion for reconsideration

of the June 20 judgment and motion to declare [the RICO] judgment an absolute

nullity. Sutton sought (1) revision of the June 20 judgment to reflect that the

exceptions heard and ruled upon were filed by Adams, not Maison Royale, and (2)

a declaration that the RICO judgment, on which Adams’ exceptions were based,

was an absolute nullity. Prior to filing his nullity motion in Div. L, Sutton had

filed a Petition to Annul the RICO judgment, which was randomly allotted to Div.

N.

5 Jack Adams v. Rick M. Sutton, CDC No. 2017-03907.

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“Annulment” suit

On March 25, 2019, Sutton filed a Petition to Annul the RICO judgment

(“Annulment” suit) that was randomly allotted to Div. N.6 The Annulment suit

named Adams, Charles Adams, Polly Point, and Maison Royale as defendants.

Polly Point, the only party on which Sutton requested service, filed a motion to

transfer the Annulment suit to Div. D, pursuant to La. C.C.P. art. 253.2 and Civil

District Court Rule 9.3, App. 9.3 (“CDC App. 9.3”). Subsequently, after Sutton

filed the nullity motion in Div. L, Adams filed a motion to transfer and consolidate

the nullity motion with the Annulment suit in Div. D. Sutton filed oppositions to

both motions to transfer.7

On August 16, 2019, Div. D held a hearing on the motions. At the

conclusion of the hearing, Div. D granted Polly Point’s motion to transfer the

Annulment suit and granted Adams’ motion to transfer and consolidate the nullity

motion, filed in Div. L, with the Annulment suit in Div. D. Div. D rendered its

signed judgment on September 3, 2019.

Sutton filed timely notice of intent to seek review of Div. D’s September 3,

2019 judgment. Subsequently, these writs were consolidated with four appeals and

two other writs filed in the Adams/Sutton litigation.8 After oral argument on the

consolidated matters on May 20, 2022, the appeals were unconsolidated. In

consideration that these two writs arise from the same Div. D judgment, they are

consolidated for this writ opinion.

6 Rick M. Sutton v. Jack Adams, Charles Adams, Polly Point Imports Corp. and Maison Royale,

LLC, CDC No. 2019-3156.
7 We note that Sutton was represented in the RICO suit by counsel from the law firm of

Cherhardy Sherman Williams, which filed the Annulment suit on his behalf. However, Sutton is
represented in the Abuse of Process suit by the Law Office of Robert G. Harvey. Thus, counsel
for the Annulment suit filed the opposition to Polly Point’s motion to transfer, and counsel for
the Abuse of Process suit opposed Adams’ motion to transfer and consolidate.
8 See n.2.

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DISCUSSION

Sutton raises separate assignments of error regarding the transfer of the

Annulment suit and the transfer and consolidation of the nullity motion. Regarding

the former, Sutton argues that Div. D erred by (1) hearing and ruling upon Polly

Point’s motion to transfer; and (2) ruling upon the motion to transfer pursuant to

CDC App. 9.3 without all parties in the case being present. Regarding the transfer

and consolidation of the nullity motion, Sutton argues that Div. D erred by (1)

ruling on the motion without proper service on all parties; and (2) transferring a

single legal issue from Div. L to Div. D.

The issues presented regarding transfer and consolidation of cases are

questions of law, which are reviewed by this Court de novo, “without deference to

the legal conclusions of the courts below.” First Bank and Trust v. Simmons, 14-

1210, p. 14 (La. App. 4 Cir. 4/22/15), 165 So.3d 1025, 1034 (quoting Durio v.

Horace Mann Ins., 11-0084, p. 14 (La. 10/25/11), 74 So.3d 1159, 1168). We

review the transfer of the Annulment suit first.

Motion to Transfer Annulment suit

Sutton argues that Div. D erred in hearing and ruling upon Polly Point’s

motion to transfer. Sutton asserts that the motion should have been heard in Div.

N, where the Annulment suit was randomly allotted, pursuant to Rule 9.2, Rules

for Civil Proceedings in District Courts. Rule 9.2 provides:

Except as allowed by La. Code Civ. Proc. art. 253.3, all contested
matters shall be heard by the judge to whom the matter was allotted.
The judge to whom the action has been allotted may designate the
order-signing judge or any other judge to sign such orders and set
such hearings, and in his or her absence, to hear such matters where
necessary to comply with law, or when deemed to be an emergency,
in accordance with La. Code Civ. Proc. Arts. 253.2 and 253.3.

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In opposition, Polly Point argues that Rule 9.2 refers to the general rule for

allotment of cases. In the motion to transfer, Polly Point asserted that CDC App.

9.3 provides the applicable procedural rule for the interdivisional transfer of this

case. Based on our review of the statutes and relevant jurisprudence, we agree.

The interdivisional transfer of cases is governed by La. C.C.P. art. 253.2,

which provides as follows:

After a case has been assigned to a particular section or division of the
court, it may not be transferred from one section or division to another
section or division within the same court, unless agreed to by all
parties, or unless it is being transferred to effect a consolidation
pursuant to Article 1561. However, the supreme court, by rule, may
establish uniform procedures for reassigning cases under
circumstances where an expeditious disposition of cases may be
effectuated.

This Court discussed the application of La. C.C.P. art. 253.2 in Simmons,

finding that, “[u]nder Article 253.2, a case can be transferred to another division in

only three circumstances: (i) when the parties consent; (ii) when the transfer is for

consolidation for trial, as provided in La. C.C.P. art. 1561; and (iii) when a

Supreme Court rule permits the transfer.” 14-1210, p. 15, 165 So.3d at 1034

(citing State v. Sprint Commc’ns Co., L.P., 96-3094, p. 6 (La. 9/9/97), 699 So.2d

1058, 1063). In that case, as in this case, the Court was considering the

interdivisional transfer of a petition to annul a prior judgment. And, relevant to

that issue, this Court concluded that CDC App. 9.3 is a Supreme Court rule that

provides for the transfer of a suit for nullity of judgment to the division that

rendered that judgment. Simmons, 14-1210, pp. 21-22, 165 So.3d at 1038-39.

CDC App. 9.3 provides in pertinent part as follows:

ALLOTMENT OF CASES

4. To achieve continuity of case management, and to avoid the
appearance of forum shopping, it is the policy of the [Orleans Civil

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District Court] that subsequent but related cases should be transferred
to the division to which the original case was allotted, whether or not
such earlier case is still pending. It shall be the duty of any attorney in
such cases to call to the court’s attention the existence of such earlier
case. The following are examples of cases which ought to be
transferred to the original division:

* * *

4. Cases growing out of earlier cases, such as suits to enjoin
executory process, to annul a judgment, suits claiming damage
caused by the earlier proceeding (wrongful eviction, malicious
prosecution, abuse of process, etc.).

Upon review of CDC App. 9.3, this Court found “[t]he CDC’s allotment rule, CDC

App. 9.3, codifies the longstanding policy in that court requiring that suits for

nullity of judgment be allotted to the same division that rendered the original suit.

The basis for this policy is that the nullity action is said to ‘grow out of’ the earlier

case.” Simmons, 14-1210, pp. 21-22, 165 So.3d at 1038-39.

In this case, at the hearing on the motion to transfer, Div. D stated its

reliance on CDC App. 9.3 for its ruling, as follows:

In accordance with the Rules of Court, Civil District Court 9.3,
Division “D” is the proper division to hear this motion to transfer.
The petition for nullity, which is pending in Division [“N”] shall be
transferred to this division, which was the original division that
rendered the judgment at issue.

Based on our review of the applicable rules and jurisprudence, we find no error in

Div. D hearing and granting the motion to transfer the Annulment suit to Div. D.

We also find no merit to Sutton’s second argument that Div. D erred in

ruling on Polly Point’s motion to transfer without the presence of all parties. In

support of his argument, Sutton references a wholly different section of CDC App.

9.3, under a section entitled “TRANSFER AND CONSOLIDATION”, which

provides in part, “the transfer and consolidation shall be by order of the judge to

whom the case is being transferred, after contradictory hearing with all parties in

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each case.” However, the applicable section of CDC App 9.3(4)(4) that we

discussed above contains no requirement of a contradictory hearing with all

parties. Moreover, in Simmons, this Court found that CDC App. 9.3 is the type of

local rule that “provide[s] for automatic consolidation (by reallotment between

divisions) of related cases.” 14-1210, p. 23, 165 So.3d at 1039 (quoting 1 Frank

Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL

PROCEDURE § 10:8 (1999)). Therefore, we find no applicable provision or

authority that requires a contradictory hearing with all parties in order to transfer

the Annulment suit to Div. D, as provided by CDC App. 9.3(4)(4).

Transfer and Consolidation of the Nullity Motion

With regards to Adams’ motion for transfer and consolidation of Sutton’s

nullity motion, Sutton argues that Div. D erred in ruling on the motion without

proper service on the parties and in granting the transfer of a single legal issue

from Div. L to Div. D. We find no merit in either argument.

As to Sutton’s argument of improper service, a review of the record reflects

that Sutton did not file a written exception of improper service to Adams’ motion

to transfer and consolidate. Only Sutton’s counsel for Polly Point’s motion to

transfer filed an exception of improper service, which they waived at the beginning

of the hearing. Thus, the exception of improper service that was denied as moot

within the September 3, 2019 judgment was filed in relation to Polly Point’s

motion to transfer.

The record also reflects that Sutton did not advance any oral argument at the

hearing in support of an exception of improper service; thus, the argument raised in

his writ was not raised in the trial court. Finally, Sutton provides no record support

9

for his argument that Adams failed to serve Sutton with the order setting the

motion hearing. We find no merit to this argument.

Finally, we address Sutton’s argument that Div. D erred by granting the

transfer and consolidation of a single legal issue from Div. L to Div. D. Here

again, Sutton contends that Rule 9.2 must be applied because it provides that “all

contested matters shall be heard by the judge to whom the matter was allotted.” In

addition, he argues that La. C.C.P. art. 253.2 is inapplicable because Adams sought

the transfer of a single legal issue rather than a case.

We find no merit in Sutton’s argument that his nullity motion is “a single

legal issue” that cannot be transferred and consolidated with another case. Sutton’s

nullity motion is a collateral action to declare the RICO judgment an absolute

nullity for failure to join an indispensable party, which is a vice of form under La.

C.C.P. art. 2002. An action to annul for vice of form may be brought by an

interested party at any time, before any court, and through a collateral proceeding.

La. C.C.P. art. 2002(B); Leonard v. Reeves, 11-1009, p. 14 (La. App. 1 Cir.

1/12/12), 82 So.3d 1250, 1260 (“A ‘collateral attack’ is an attempt to impeach the

decree or judgment from one proceeding in another proceeding not instituted for

the express purpose of annulling the judgment.”). An absolutely null judgment

may be collaterally attacked in a summary proceeding raised by contradictory

motion. Leonard, 11-1009, pp. 14-15, 82 So.3d at 1260 (finding that a

contradictory motion seeking to declare a judgment absolutely null is a summary

proceeding, pursuant to La. C.C.P. art. 2592(3)). Thus, Sutton’s Annulment suit,

i.e., an ordinary proceeding, and his nullity motion, i.e., a summary proceeding, are

both acceptable procedural means for an action to annul under La. C.C.P. art. 2002.

However, we find the use of both procedural means to attack the same judgment in

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two different suits inappropriate; therefore, we find the transfer and consolidation

of these actions proper under La. C.C.P. art. 253.2 and La. C.C.P. art. 1561.

We find the transfer and consolidation of the nullity motion appropriate

under the circumstances provided by La. C.C.P. art. 253.2, because it is “being

transferred to effect a consolidation pursuant to Article 1561.” At the time of the

transfer and consolidation in this matter,9 La. C.C.P. art. 1561(A) provided:

When two or more separate actions are pending in the same court, the
section or division of the court in which the first filed action is
pending may order consolidation of the actions for trial after a
contradictory hearing, and upon a finding that common issues of fact
and law predominate, and, in the event a trial date has been set in a
subsequently filed action, upon a finding that consolidation is in the
interest of justice. The contradictory hearing may be waived upon the
certification by the mover that all parties in all cases to be
consolidated consent to the consolidation.

A trial court’s authority to consolidate under La. C.C.P. art. 1561 is

discretionary, and, therefore, its decision is reviewed under an abuse of discretion

standard. Francois v. Gibeault, 10-0180, p. 5 (La. App. 4 Cir. 8/25/10), 47 So.3d

998, 1002 (citing Bonnette v. Tunica-Biloxi, Indians, 02-0919 (La. App. 3 Cir.

5/28/03), 873 So.2d 1).

Here, Sutton filed two separate actions seeking the exact same relief—a

declaration that the RICO judgment is an absolute nullity. The Annulment suit

was filed first, in March 2019, followed by the nullity motion in Div. L, in June

2019. In consideration of the common issues of law and fact that predominate

these actions that seek the same relief, and to avoid conflicting or inconsistent

judgments, we find no abuse of discretion in the transfer and consolidation of the

9 La. C.C.P. art. 1561 was amended and reenacted by La. Acts 2021, No. 259, § 2, effective

August 1, 2021. In pertinent part, the amendment allows “the section or division of the court in
which the first filed action is pending may order consolidation of the actions for trial or other
limited purposes after a contradictory hearing …” (emphasis added).

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nullity motion with the Annulment suit under La. C.C.P. art. 1561. See Age v. Age,

01-0231, pp. 6-7 (La. App. 4 Cir. 5/29/02), 820 So.2d 1167, 1171-72 (finding no

abuse of discretion in the consolidation of a writ of injunction with a domestic suit,

upon finding that the actions involved common issues of law and fact in

accordance with La. C.C.P. art. 1561).

CONCLUSION

For the foregoing reasons, we find no error in the September 3, 2019

judgment rendered by Div. D, granting Polly Point’s motion to transfer Sutton’s

Annulment suit and granting Adams’ motion to transfer and consolidate Sutton’s

nullity motion. Accordingly, we deny relief.

WRIT GRANTED; RELIEF DENIED

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