136 So. 3d 64
La. Ct. App.2014Background
- On July 5, 2011 Daniel Seghers was injured at a St. Bernard Parish coke plant using high‑pressure water equipment rented from LaPlace Equipment; Ashland employee Calderone was also injured.
- Plaintiffs (Seghers and wife), Jefferson Parish domiciliaries, filed suit July 5, 2012 in St. Charles Parish against LaPlace Equipment, its insurer Colony, Stoneage and Hartford, Ashland, Calderone, and unnamed insurers/manufacturers; service was withheld on the original petition.
- Plaintiffs filed a supplemental/amending petition (Sept. 24, 2012) adding James Bradley Oubre individually, alleging he resided in Norco (St. Charles) and personally handled the rental equipment.
- Ashland answered the original petition before asserting declinatory exception of improper venue and peremptory exception of prescription; LaPlace, Colony, and Oubre later filed exceptions of improper venue and prescription.
- Trial court granted venue and prescription exceptions for LaPlace, Colony, and Oubre; denied Ashland’s improper‑venue exception but granted Ashland’s prescription exception. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oubre was domiciled in St. Charles (proper venue) | Oubre lived in Norco (St. Charles); thus venue in St. Charles was proper and Art. 71 (one‑year change‑of‑domicile rule) applies | Oubre was domiciled in LaPlace, St. John the Baptist Parish at time of filing; plaintiffs’ internet listings and deed transfer don’t prove St. Charles domicile | Trial court correctly found Oubre domiciled in St. John; venue improper in St. Charles as to Oubre/LaPlace/Colony — affirmed |
| Whether Art. 71 (one‑year rule) saved St. Charles venue | Art. 71 applies if Oubre changed domicile within one year before filing | Consent judgment and deeds show Norco exclusive use awarded long before one year; Art. 71 not applicable | Art. 71 did not apply — affirmed |
| Whether supplemental petition adding Oubre relates back to original filing (Art. 1153) | Amendment relates back because claims arise from same occurrence, curing venue defect | Oubre was not domiciled in St. Charles when suit filed, so amendment does not cure improper venue; relation‑back cannot revive prescribed claims | Amendment did not relate back to cure venue; claims against LaPlace/Colony/Oubre prescribed — affirmed |
| Whether Ashland’s answer waived venue (thus prescription inapplicable) | Ashland answered original petition before excepting venue, thereby waiving venue and preserving interruption of prescription | Defendants contend venue objections timely later; but one defendant’s waiver does not bind others | Ashland waived improper venue by answering first; trial court erred in granting Ashland’s prescription exception — reversed and remanded |
Key Cases Cited
- In re Medical Review Panel Proceedings for the Claim of Tinoco, 858 So.2d 99 (La. App. 4 Cir. 2003) (venue is reviewed de novo)
- Jewell v. Dudley L. Moore Ins. Co., 676 So.2d 223 (La. App. 1 Cir. 1996) (defendant bears burden to prove improper venue when not apparent on petition)
- Exposition Partner, L.L.P. v. King, LeBlanc Bland, L.L.P., 869 So.2d 934 (La. App. 4 Cir. 2004) (exceptions resolved on hearing evidence, not petition allegations)
- Ray v. Alexandria Mall, Through St. Paul Prop. & Liab. Ins., 434 So.2d 1083 (La. 1983) (substituted/misnamed defendant principles)
- Prasad v. Bullard, 51 So.3d 35 (La. App. 5 Cir. 2010) (corporate veil disregarded only in exceptional circumstances; fraud or unity of interests required)
- Randell v. Prince, 460 So.2d 96 (La. App. 3 Cir. 1984) (venue is waivable; declinatory exception must be filed before answer)
- Spott v. Otis Elevator Co., 601 So.2d 1355 (La. 1992) (waiver of venue by one defendant does not preclude other defendants from objecting)