Carr and Associates, Inc. v. Roselle Jones

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0550

CARR AND ASSOCIATES, INC.

VERSUS

ROSELLE JONES

Judgment 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.

Robert C. Lehman Intervenor/ Appellant
Mandeville, Louisiana In Proper Person

Bruce M. Danner Counsel for Defendant/ Appellee
Madisonville, Louisiana Roselle Jones

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

McCLENDON, J.

Intervenor appeals the 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 services 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 total

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

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

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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 4ones, 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.
SIGNED on this day of : Louisiana.

ERAiBLMEkS1—
t

DNE 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

l* W& perlaw:com . C
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 counsel. Upon discovering that the CDC trial court had already executed the

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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

trial court"), Ms. Jones filed an Exception of Prescription. Ms. Jones contended that the

November 3, 2017 judgment on the Exception of Improper Venue conclusively

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 intervened, 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 parish 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 ten- year prescriptive period.

Mr. Lehman, like Carr, argued that New Orleans was a parish of proper venue

because work was performed on the contract in Orleans Parish. However, more

significant to our analysis, Mr. Lehman maintained that the November 3, 2017

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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 October 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" without hearing facts or
rendered

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), 62 So. 3d 36, the Louisiana

Supreme Court considered whether a transferee court must make its own venue

determination when ruling on an exception of peremption. In Land, the plaintiffs filed a

legal malpractice suit pursuant to LSA- R. S. 9: 5605 in East Baton Rouge District Court

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EBR trial court"). The EBR trial court granted the defendant's exception of improper

venue. The case was transferred to Lafayette Parish District Court (" Lafayette 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 concluded 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, 62 So. 3d at 38.

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 case 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, 62 So. 3d at 41- 42. Therefore, having found no merit to the

Lafayette trial court's stated reason for failing to consider the venue issue, the Supreme

Court considered whether LSA- R. S. 9: 5605 allowed or required such consideration.

Finding that under LSA- R. S. 9: 5606, 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, the Supreme Court in

Land wrote:

La. R. S. 9: 5605 provides that no action 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,
The trial court that is tasked with determining whether the
or neglect...."

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

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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 proceedings 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,
we stated,
the trial court's decision on venue was reviewable by the
court of appeal and by this court on appeal after trial on the merits, at
least for prescription purposes."

Land, 62 So. 3d at 42 ( emphasis added). Thus, the matter was remanded to the

Lafayette trial court to determine whether East Baton Rouge Parish was a parish of

proper venue for purposes of LSA- R. S. 9: 5605. Land, 62 So. 3d at 42.

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

precluding 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

relevant 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, 120 So. 3d at 283. The case was transferred, and an Exception of Improper

Venue was filed. The transferee trial court interpreted the consent judgment as an

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agreement to transfer the action to Caddo for litigation, and for that reason denied the

exception of peremption. Carriere, 120 So. 3d at 286. However, the Second Circuit in

Carriere determined that the transferee trial court had erred, writing:

We find that the trial court's interpretation was legally incorrect. Under the
consent judgment, Carriere agreed to " 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." 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 Parish 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 consent judgment precluded Szwak from filing
the exception of peremption upon the filing of Carriere' s action in Caddo
Parish.

Carriere, 120 So. 3d at 286. The Carriere Court then considered the Supreme Court's

decision in Land, and concluded that the consent judgment was a legal barrier

precluding consideration of venue. Id. The Second Circuit therefore reversed the

transferee trial court's denial of the exception of preemption, maintained the exception,

and dismissed the suit with prejudice. Id. at 289.

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, 62 So. 3d at 42. A consent judgment is a bilateral contract

between the parties by which the parties adjust their differences by mutual consent,

with each party balancing his hope of gain against his fear of loss. Hebert v. Drewitz,

2009- 0798 ( La. App. 1 Cir. 10/ 27/ 09), 29 So. 3d 607, 608. Its binding force arises from

the voluntary acquiescence of the parties, rather than the adjudication by the court.

Mayo v. Hutchison, 2016- 1642 ( La. App. 1 Cir. 9/ 27/ 17), 232 So. 3d 567, 574. Further,

interpretation of a consent judgment, i. e., a contract between parties, is a

determination of the common intent of the parties, and when the words of the contract

are clear and explicit and lead to no absurd consequences, the intent of the parties is to

be determined by the words of the contract. LSA- C. C. art. 2045; Richardson v.

Richardson, 2002- 2415 ( La. App. 1 Cir. 7/ 9/ 03), 859 So. 2d 81, 84. A contract is

0

considered ambiguous on the issue of intent when it lacks a provision bearing on the
issue, its written terms are susceptible to more than one interpretation, there is

uncertainty as to its provisions, or the parties' intent cannot be ascertained from the

language used. Guest House of Slidell v. Hills, 2010- 1949 ( La. App. 1 Cir. 8/ 17/ 11),

76 So. 3d 497, 499- 500. Whether a contract is ambiguous or not is a question of law

and subject to the de novo standard of review on appeal. Id. at 499.

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, 120 So. 3d at 283. Therefore, we find that the trial court

committed legal error in failing to consider whether Carr's original petition was filed in a

parish of proper venue before ruling on Ms. Jones' Exception of Prescription.'

1 Although it is the firm belief of this Court that the November 3, 2017 judgment at issue is not
susceptible to more than one interpretation, we note, out of an abundance of caution, that to the extent
these provisions could be considered ambiguous, we would then be required by LSA- C. C. art. 2056 to
construe the judgment against Ms. Jones, as the drafter of the contract, and in favor of Carr and Mr.
Lehman. (" In case of doubt that cannot be otherwise resolved, a provision in a contract must be
interpreted against the party who furnished its text," LSA- C. C. art. 2056). In this event, we would again
reach the same conclusion.

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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.

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