Case Information
*1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
2019 CA 0550
CARR AND ASSOCIATES, INC.
VERSUS
ROSELLE JONES
Judgmеnt Rendered: DEC2 7 2119 On Appeal from the Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana Docket No. 2018- 10569 Honorable William J. Knight, Judge Presiding
David L. Browne Counsel for Plaintiff/ Appellee Cynthia M. Cimino Defendant In Intervention New Orleans, Louisiana Carr and Associates, Inc. Intervenor/ Appellant
Robert C. Lehman Mandeville, Louisiana In Proper Person
Bruce M. Danner Counsel for Defendant/ Appellee Roselle Jones Madisonville, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
McCLENDON, J.
Intervenor appeals thе trial court's judgment granting defendant's Exception of Prescription and dismissing all claims against defendant. For the reasons that follow, we reverse and remand with instructions.
FACTUAL AND PROCEDURAL BACKGROUND
Roselle Jones (`BMs. Jones") was the owner of property located at 1817 Napoleon Avenue in New Orleans, Louisiana, when it was damaged by a fire. Ms. Jones hired Carr
Associates, Inc., (" Carr") to perform appraisal and estimating servicеs in connection with her resulting insurance claim. The contract was memorialized in writing and set Carr's fees at the rate of $ 300. 00 per hour. Carr submitted a final invoice to Ms. Jones reflecting that Carr last performed work on the contract on February 18, 2014, and that Ms. Jones owed Carr a total of $ 55, 335. 00 for the work performed during the insurance appraisal process and subsequent litigation. Ms. Jones paid $ 5, 000. 00 of the totаl amount due.
On June 30, 2014, Carr filed suit against Ms. Jones in the Civil District Court for the Parish of Orleans (" CDC trial court"). Carr' s petition alleged that `yin accordance with the remuneration agreed upon between the parties, the compensation due to petitioner on open account is $ 50, 335. 00." Service on Ms. Jones was unsuccessful. A curator was *3 subsequently appointed, though additional attempts at service were also unsuccessful. On May 8, 2015, the CDC trial court granted summary judgment in favor of Carr against Ms. Jones.
On June 5, 2017, Ms. Jones filed a petition to nullify the May 8, 2015 judgment. Ms. Jones alleged that she had never been served with process, had not waived service, and had not waived objection to jurisdiction. Further, Ms. Jones asserted that there had been no basis to appoint a curator because Carr's counsel, Robert Lehman, had originally requested service at an incorrect address. On August 4, 2017, the CDC trial court executed a judgment of nullity as to the May 8, 2015 judgment.
Following the CDC trial court's judgment of nullity, Mr. Lehman requested service on Ms. Jones through her counsel, Bruce Danner. Ms. Jones was then properly served. Ms. Jones filed a Declinatory Exception of Improper Venue, arguing that St. Tammany Parish was the only parish of proper venue for Carr's suit because Carr and Ms. Jones were both domiciled in St. Tammany Parish, and because Carr did not perform any
work on the contract in Orleans Parish. Mr. Danner prepared, and Mr. Lehman signed, a judgment on the Exception of Improper Venue. The below judgment was executed by the CDC trial court on November 3, 2017 (" the November 3, 2017 judgment"):
JUDGNMM
The Declinatory Exception of Improper Venue filed on behalf of Roselle 4onеs, original Defendant and Mover herein, was submitted by consent.
Considering the Record herein and the consent of the respective Parties a5 reflected by the signatures of their respective attorneys as hereinafter set forth, IT IS HEREBY ORDERED, ADJUDGED AND DECREED 21at he Declinatory Exception of improper Venue is hereby granted.
IT IS FURTHER ORDERED That, acid as permitted by LA-C. C.P ; AitiEie [114] d 932; this matter is hereby transferred to the 22"d Judicial District Court for the P* i`sh 9 6t. FlInany; I w cn ; that the Clerk of this Honorable Court proceed in a manner to accomplish the Foregoing. Louisiana. SIGNED on this day of : ERAiBLMEkS1— DNE t ES, IV DISTRICT COVRT JUDGE BY CONSENT -
AS TO TRANS a43 ROBERT C. LEI HM -AN (LSBA 8285) Law Offices ofRobert C. Lehman, LLC 204 Scotchpine Drive Mandeville, Louisiana 70471 Madisonville, Louisiana 70447 Telephone: ( 985) 778- 9891 Telephone: ( 985) 792- 5220 Electronic Mail: lehman7l{a?,hotmail. com Facsimile: ( 985) 792- 4889 C l* W& perlaw:com . r " After the November 3, 2017 judgment on the Exception of Improper Venue had been executed by the CDC trial court, and on the same day, Carr filed a Motion to Substitute requesting the withdrawal of Mr. Lehman and substitution of David Browne and Cynthia Cimino as counsel of record on Carr' s behalf; the CDC trial court executed the accompanying Order enrolling Mr. Browne and Ms. Cimino as counsel of record; and Carr filed a Memorandum in Opposition to the Exception of Improper Venue through his new сounsel. Upon discovering that the CDC trial court had already executed the judgment on the Exception of Improper Venue, Carr filed a Motion for New Trial. Said Motion was denied.
Upon the transfer of the suit to St. Tammany Parish District Court (" St. Tammany *5 trial court"), Ms. Jones filed an Exception of Prescription. Ms. Jones contended that the November 3, 2017 judgment on the Exception of Improper Venue conclusivеly established that Orleans Parish was not a parish of proper venue for Carr' s claim, such that Carr's original petition filed in New Orleans Parish did not interrupt prescription. Therefore, asserting that Carr' s petition was a suit on open account subject to a three- year prescriptive period, Ms. Jones argued that Carr' s claim prescribed before the Petition for Nullity had been filed.
On June 22, 2018, Mr. Lehman intervеned, seeking an award of his attorney's fees and advanced litigation costs. Mr. Lehman and Carr both opposed the Exception of Prescription.
The St. Tammany trial court heard the Exception of Prescription on September 19, 2018. At the outset of the hearing, Ms. Jones argued that "[ t] he preliminary issue was] whether or not this court should reconsider the consent judgment issued by the CDC trial court] in regard to venue." Ms. Jones asserted that the November 3, 2017 judgment stating that the Exception of Improper Venue was granted was an
impediment" to the St. Tammany trial court considering venue as an element of prescription because " it's a contract, a settlement between the parties." Therefore, because the St. Tammany trial court could not reconsider the propriety of New Orleans as a pаrish of proper venue, Ms. Jones argued that Carr' s petition was prescribed on its face.
In response, Carr asserted that New Orleans was a parish of proper venue for a suit on open account because work was performed in New Orleans Parish. Carr also argued that his petition was not prescribed on its face, because it asserted contract claims subject to a tеn- year prescriptive period.
Mr. Lehman, like Carr, argued that New Orleans was a parish of proper venue in Orleans Parish. However, more because work was performed on the contract to our analysis, Mr. Lehman maintained that the November 3, 2017 significant *6 judgment was not a legal barrier to the court considering venue in connection with the Exception of Prescription as said judgment explicitly reflected that he only consented to transfer of the case. He further asserted that he never consented to a finding of improper venue and that the St. Tammany trial court should therefore consider venue as an element of prescription when ruling on Ms. Jones' Exception.
At the conclusion of the September 19, 2018 hearing, the St. Tammany trial court stated in part:
But, ultimately, this is a consent judgment.
Declinatory Exception of Improper Venue was granted. Article 121 of the Code of Civil Procedure says that in the event that an action is brought in a court of improper venue. So that's that basically a concession that in fact this was [ improper venue]. I, frankly, don' t think it was. I think it was probably a court of proper venue. Doesn' t matter. It's the agreement of the parties.
I fully believe Mr. Lehman, who I' ve known lots of years, who is an honorable man and a good lawyer, when he says that he was, in his mind, agreeing to the transfer only. But the document itself de facto grants the Exception of Improper Venue...
So, unfortunately, I' m in the position that accepting that judgment as what it is, under the Carriere case and others, an agreement between the parties, that the Exception of Prescription is well- founded and it has to be granted.
On Oсtober 12, 2018, a written judgment was signed granting Ms. Jones' Exception of Prescription and dismissing all claims against her. Intervenor herein, Mr. Lehman, now appeals, assigning as error:
A. When considering an Exception of Prescription, the transferee court erred in considering a prior ruling on an Exception of Venue by the transferor court to be a conclusion of law. The transferee court must make an independent determination regarding proper venue.
B. When a " consent judgment" rendered without hearing facts or evidence by the transferor court specifically stipulates that a party is consenting only to transfer of the case to another venue, the transferee court erred by considering the judgment to present an adjudicated finding of fact that the original venue was improper.
LAW & ARGUMENTS
In Land v. Vidrine, 2010- 1342 ( La. 3/ 15/ 11),
EBR trial court"). The EBR trial court granted the defendant's exception of improper
venue. The case was transferred to Lafayette Parish District Court (" Lafayettе trial
court"), where the defendant filed an exception of peremption. The Lafayette trial court
reasoned that it was ' obligated to follow the [ venue] ruling made in East Baton Rouge
District Court as the ' law of the case.'" Because the EBR trial court found venue was
improper, and the Lafayette trial court believed it was unable to review that ruling, the
Lafayette trial court concludеd the filing in Lafayette Parish was untimely on its face.
The plaintiffs failed to show why the claim was timely, and the Lafayette trial court
found the cause of action was barred by peremption and granted the defendant's
exception. Land,
The Supreme Court
in Land noted that the Lafayette trial court erred in
reasoning that it was precluded from considering the venue issue based on the " law of
the casе doctrine." Under the " law of the case doctrine," courts of appeal generally
refuse to reconsider their own rulings of law on a subsequent appeal in the same case.
However, the doctrine does not apply in the context of a trial court ruling on
interlocutory issues or a transferee court being asked to consider a ruling of the
transferor court. Land,
La. R. S. 9: 5605 provides that no aсtion for damages against attorneys shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect...." The trial court that is tasked with determining whether the case is perempted must consider all the grounds for peremption, including whether the case was timely filed in a court of proper venue. As we previously stated, the " law of the case doctrine" is not applicable in the instant situation. In the absence of a legal barrier precluding consideration of the issue, we find the East Baton Rouge Parish trial court's venue ruling should have been merely presented as evidence in support of the defendant's exception of peremption, not as a conclusion of law. The Lafayette Parish trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum. In other words, the venue decision, when considered in the context of an exception of peremption, does not alter the location of the current and/ or future prоceedings of the case. If the Lafayette Parish trial court finds that venue was proper in East Baton Rouge Parish, then it is
required to deny the defendant' s exception of peremption and proceed with the trial in Lafayette Parish. Alternatively, if the Lafayette Parish trial court finds that venue was improper in East Baton Rouge, then it is required to continue its analysis of whether the filing in Lafayette Parish was timely. If the case was not timely filed in Lafayette Parish, the exception of peremption must be granted and the case dismissed. Thus, the only venue ruling in this case that is subject to review by the Louisiana Third Circuit Court of Appeal is the venue finding that is incorporated into the peremption ruling by the Lafayette Parish trial court. This procedure ensures that the appellate courts are only considering judgments within their jurisdiction.
We note that our previous decision of Phillips v. Patterson Ins Co., 97- 2748 ( La. 1/ 9/ 98),704 So. 2d 246 , 247 supports this holding. In that case, the trial court's decision on venue was reviewable by the we stated, *9 court of appeal and by this court on appeal after trial on the merits, at least for prescription purposes."
Land,
Mr. Lehman argues that under Land, the St. Tammany trial court was required to make an independent determination regarding proper venue. In response, Ms. Jones argues that this matter is distinguishable from Land, because in this matter the November 3, 2017 judgment is a bilateral contract that operates as a legal barrier prеcluding consideration of venue as an element of prescription, whereas in Land the transferor court issued a considered decree after holding a hearing on an exception of venue.
Ms. Jones, like the St. Tammany trial court, relies on the Second Circuit's decision in Carriere v. Bodenheimer, et al., 47, 186 ( La. App. 2 Or. 8/ 22/ 12), 120 So. 3d 281. In Carriere, the parties agreed to a consent judgment, which stated in rеlevant part:
The parties agreed to remove the hearing from the docket. Plaintiff agrees to the granting of this Consent Judgment, maintaining the Exception of Improper Venue due to this action being filed in a parish of improper venue, and the transferring of this suit to Caddo Parish.
Carriere,
We find that the trial court's interpretation was legally incorrect. Under the consent judgment, Carriere agreed to " maintaining the Excеption of Improper Venue due to this action being filed in a parish of improper venue, and the transferring of this suit to Caddo Parish." The consent judgment states that the exception of improper venue is " granted." The language of the consent judgment is clear, explicit and leads to no absurd consequences. The consent judgment is a determination that venue was improper in Lafayette Pаrish and an agreement to transfer the action to Caddo Parish. Transfer to a court of proper venue is appropriate when an action is brought in a court of improper venue. La. C. C. P. art. 121. The parties did not merely agree to move venue; they agreed that the action
had been filed in an improper venue and therefore agreed to the transfer to Caddo. Nothing in the cоnsent judgment precluded Szwak from filing
the exception of peremption upon the filing of Carriere' s action in Caddo Parish.
Carriere,
In this matter we are called upon to determine whether the November 3, 2017
consent judgment constitutes a legal barrier precluding consideration of whether this
matter was timely filed in a court of proper venue in the context of Ms. Jones' Exception
of Prescription. See Land,
Looking within the four corners of the November 3, 2017 consent judgment on the Exception of Prescription, we do not find that the judgment constitutes a legal barrier precluding consideration of venue as an element of prescription. The judgment states that the Exception of Improper Venue is " granted" and " hereby transferred to the 22nd Judicial District Court for the Parish of St. Tammany." However, above Mr. Lehman' s signature, it provides in capitalized and bolded font that Mr. Lehman executed the judgment " BY CONSENT: ( AS TO TRANSFER ONLY)". This language is not susceptible to more than one interpretation, and there is no uncertainty as to its effect. The words of this contract plainly and explicitly reflect that Mr. Lehman consented to this judgment as to the transfer of this matter to the St. Tammany trial court only.
There is no evidence whatsoever of any intent on the part of Mr. Lehman to consent to
a legal determination that Orleans Parish was a parish of improper venue by his
execution of this document. This is in direct contrast to the consent judgment in
Carriere, in which the ` Plaintiff agree[ d] to the granting of th[ e] Consent Judgment,
maintaining the Exception of Improper Venue due to this action being filed in a parish
of improper venue." Carriere,
DECREE
For the reasons stated herein, the judgment of the trial court is reversed. The case is remanded to the St. Tammany Parish District Court in St. Tammany Parish to determine whether Orleans Parish was a parish of proper venue.
REVERSED AND REMANDED.