Brent Deaville v. Exxon Mobil Corporation

BRENT DEAVILLE * NO. 2021-C-0240

VERSUS *
COURT OF APPEAL
EXXON MOBIL *
CORPORATION, ET AL FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-00881, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Dale
N. Atkins)

Lindsey A. Cheek
Jeanne S. Arceneaux
THE CHEEK LAW FIRM LLC
650 Poydras Street, Suite 2310
New Orleans, LA 70130

Melissa Schopfer, pro hac vice
Jean-Michel Lecointre, pro hac vice
Michael K. Hibey, pro hac vice
SIMMONS HANLY CONROY, LLC
One Court Street
Alton, IL 62002

Jay Stuemke, pro hac vice
STUEMKE LAW FIRM PLLC
PO Box 92970
Southlake, TX 76092

COUNSEL FOR PLAINTIFF/RESPONDENT

James M. Williams
Inemesit U. O’Boyle
Daniel E. Buras, Jr.
Patrick R. Follette
Jonathan E. Ley
Erin B. Rigsby
CHEHARDY SHERMAN WILLIAMS
One Galleria Boulevard
Suite 1100
Metairie, LA 70001

David M. Bienvenu, Jr.
John Allain Viator
Melissa Jade Shaffer
Thomas C. Naquin
Samantha M. Kennedy
BIENVENU BONNECAZE FOCO & VIATOR, LLC
4210 Bluebonnet Blvd.
Baton Rouge, LA 70809

COUNSEL FOR DEFENDANT/RELATOR

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED;
STAY LIFTED; REMANDED
MAY 3, 2021

DNA
PAB
TGC
This is a mesothelioma case. Relator, Exxon Mobil Corporation (“Exxon”)

seeks expedited supervisory review of the trial court’s April 28, 2021 judgment

denying Exxon’s Motion to Transfer, Declinatory Exception of Venue, and

Renewal of Declinatory Exception of Improper Venue Pursuant to Louisiana Code

of Civil Procedure Article 73(B). For the following reasons, we grant Exxon’s writ

application, reverse the trial court’s judgment, and render judgment granting

Exxon’s declinatory exception of improper venue. Further, we lift the stay issued

by this Court in this matter on April 28, 2021, and remand this matter for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2020, Respondent, Brent Deaville, filed a Petition for

Damages in Orleans Parish Civil District Court asserting claims for negligence and

strict liability caused by an alleged occupational exposure to asbestos that

ultimately led to the development of Mr. Deaville’s malignant mesothelioma. Mr.

Deaville named twenty defendants in his original Petition for Damages, First

Supplemental and Amending Petition for Damages, and Second Supplemental and

Amending Petition for Damages. Of those defendants, two—Eagle, Inc. and

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Taylor-Seidenbach—were corporations domiciled in Orleans Parish. On April 13,

2020, Exxon filed a declinatory exception of improper venue along with an answer

to the Petition for Damages, but Exxon did not request that a hearing on the

declinatory exception of improper venue be set at that time.

On September 1, 2020, Mr. Deaville filed a Motion for Partial Dismissal,

dismissing his claims against Eagle, Inc. without prejudice. The trial court granted

Mr. Deaville’s motion and dismissed all of Mr. Deaville’s claims against Eagle,

Inc. without prejudice on September 3, 2020. Following Eagle, Inc.’s dismissal,

Exxon moved to set its declinatory exception of improper venue for contradictory

hearing, alleging that Mr. Deaville improperly named Eagle, Inc. and Taylor-

Seidenbach as defendants for the sole purpose of establishing venue in Orleans

Parish. Exxon requested that this matter be transferred to East Baton Rouge Parish,

where Exxon alleged venue was proper.

On October 8, 2020, the trial court held a hearing on Exxon’s declinatory

exception of improper venue, but struck it sua sponte for failure to comply with

La. Dist. Court Rules, Rule 9.8.1 From the trial court’s judgment striking the

exception for failure to comply with La. Dist. Court Rules, Rule 9.8, Exxon sought

expedited supervisory review, which this Court denied on November 2, 2020. See

Brent Deaville v. Anco-Insulations, Inc., et al., 2020-C-0557.

Thereafter, this matter was set for jury trial on April 26, 2021. On April 25,

2021, the night before trial was scheduled to commence, at approximately 11:59

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La. Dist. Court Rules, Rule 9.8(a) provides:

All exceptions and motions, including those incorporated into an answer, shall be
accompanied by a proposed order requesting that the exception or motion be set
for hearing. If the exceptor or mover fails to comply with this requirement, the
court may strike the exception or motion, may set the matter for hearing on its
own motion, or take other action as the court deems appropriate.

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p.m., Mr. Deaville’s counsel emailed the trial court and Exxon’s counsel a Motion

for Partial Dismissal that moved the trial court to dismiss the claims against

Taylor-Seidenbach, the only remaining defendant with a registered office in

Orleans Parish. The trial court granted and signed the Motion for Partial Dismissal

on April 26, 2021.

The parties appeared before the trial court as scheduled on April 26, 2021 to

confect trial stipulations and to create a juror questionnaire for all of the

prospective jurors to complete. Prior to addressing the juror questionnaire, counsel

for Exxon referenced the Motion for Partial Dismissal that was emailed by Mr.

Deaville’s counsel the night before. Exxon’s counsel asked Mr. Deaville’s counsel

to clarify whether Taylor-Seidenbach’s dismissal was voluntary or the result of a

settlement. The following exchange occurred:

Mr. Bienvenu: Your Honor, can we get a formal statement from the
Plaintiff as to the status of Taylor-Seidenbach that was a defendant in
the case at least of Friday?

Ms. Cheek: We sent out an email yesterday with a letter attached to all
counsel and to the court notifying them of a resolution with Taylor-
Seidenbach.

Mr. Bienvenu: A resolution, because all we got is a dismissal without
prejudice.

THE COURT: Okay. Anything further from counsel for the Plaintiff’s
[sic]? So they are not present, but there’s a dismissal of Taylor-
Seidenbach, so they’re not going to proceed to trial.

Mr. Bienvenu: My only question is we received a dismissal without
prejudice. Is that what the Plaintiffs are filing and seeking The Court
to enter?

Ms. Cheek: Yes, it is.

Later, counsel for Mr. Deaville confirmed that “not all of [the] entities

[involved] are settled. Some of them were just dismissed without settlement.”

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When counsel for Exxon asked for plaintiff to declare on the record which parties

Mr. Deaville settled with and which parties were simply dismissed without

prejudice, counsel for Mr. Deaville did not specify that it had settled with Taylor-

Seidenbach. Prior to adjourning for the day on April 26, 2021, Exxon noted that,

based on the trial court’s judgment dismissing Taylor-Seidenbach without

prejudice, it had filed a declinatory exception of improper venue, a renewal of its

first declinatory exception of improper venue that was filed after Eagle Inc.’s

dismissal, and a motion to transfer venue.

On April 28, 2021, the parties appeared via Zoom video conferencing for a

hearing on Exxon’s declinatory exception of improper venue, its renewal of its

previous declinatory exception of improper venue, and its motion to transfer venue.

During the hearing, Exxon noted that Mr. Deaville’s Petition for Damages

indicates that the case does not involve any Orleans Parish parties nor does it

allege that any injury occurred in Orleans Parish, as Mr. Deaville alleged in his

Petition for Damages that he is a lifelong resident of East Baton Rouge Parish,

where he was allegedly exposed to asbestos. Exxon stated that it is an East Baton

Rouge resident for venue purposes, and that the other remaining defendant at the

time of trial—Ferguson—is a St. Tammany Parish resident for venue purposes.

Exxon also maintained that Taylor-Seidenbach’s voluntary dismissal from this

matter, like Eagle, Inc.’s voluntary dismissal earlier, did not indicate that any

settlement or compromise was reached.

Exxon also maintained that the timing of the dismissal—at almost midnight

the night before trial was to begin—bolstered Exxon’s position that Taylor-

Seidenbach and Eagle, Inc. were only made defendants in this case to establish

venue in Orleans Parish. Mr. Deaville countered that there was a compromise

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reached with Taylor-Seidenbach, arguing that both parties mutually agreed to

waive payment of court costs. Exxon responded that the waiver of court costs did

not amount to a settlement with Taylor-Seidenbach because there was no benefit or

concession made by Mr. Deaville or Taylor-Seidenbach.

The trial court rendered judgment on April 28, 2021, denying Exxon’s

motion to transfer venue and overruling Exxon’s declinatory exception of improper

venue and Exxon’s renewed declinatory exception of improper venue. In its

reasons for judgment, the trial court found that Mr. Deaville’s claims against

Taylor-Seidenbach were compromised by an agreement to dismiss Taylor-

Seidenbach in exchange for a waiver of costs. The trial court found that, because

Taylor-Seidenbach was dismissed as a result of a compromise, venue remained

proper in Orleans Parish—even though no Orleans Parish defendant remained for

trial—pursuant to the venue exception delineated in La. C.C.P. art. 73(B).

Exxon noticed its intent to seek supervisory review of the trial court’s April

28, 2021 judgment the same day it was rendered. The trial court set the return date

for the writ application for 4 p.m. on April 28, 2021. Exxon’s timely writ

application and request for stay followed. Upon receipt of Exxon’s writ application

on April 28, 2021, this Court granted Exxon’s request for a stay.

STANDARD OF REVIEW

Venue is a question of law; thus, exceptions of improper venue are reviewed

using the de novo standard of review. Bruno v. CDC Auto Transp., Inc., 2019-

1065, p. 7 (La. App. 4 Cir. 6/3/20), 302 So.3d 8, 12, writ denied, 2020-00836 (La.

10/14/20), 302 So.3d 1118 (citing Matthews v. United Fire & Casualty Ins. Co.

Doctor Pipe, Inc., 2016-0389, p. 3 (La. App. 4 Cir. 3/8/17), 213 So.3d 502, 505).

“When reviewing questions of law, an appellate court affords ‘no special weight to

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the findings of the district court, but exercises its constitutional duty to review

questions of law and renders judgment on the record.’” Burds v. Skidmore, 2019-

0263, p. 3 (La. App. 4 Cir. 3/22/19), 267 So.3d 192, 194 (quoting Winston v.

Millaud, 2005-0338, p. 5 (La. App. 4 Cir. 4/12/06), 930 So.2d 144, 150).

Therefore, “appellate review of questions of law is simply whether the trial court

was legally correct or legally incorrect.” Millaud, 2005-0338, p. 5, 830 So.2d at

150.

DISCUSSION

The dispositive2 issue in this writ application is whether the trial court erred

in denying Exxon’s declinatory exception of improper venue and its motion to

transfer this case to another venue, that is, whether venue continues to be proper in

Orleans Parish after the last Orleans Parish defendant is dismissed.

“Choice of venue is a gateway consideration that is separate from the merits

of the case and addresses only the initial inquiry of where to litigate. Absent

allegations of bias or the operation of forum non conveniens, courts are presumed

to administer equal justice wherever they are located.” Land v. Vidrine, 2010-1342,

p. 7 (La. 3/15/11), 62 So.3d 36, 40-41. Accordingly, “venue is an early

determination that governs a trial’s location, not its result.” Id., 2010-1342, p. 8, 62

So.3d at 41.

An exception of improper venue is raised by declinatory exception, which is

“waived unless pleaded therein.” La. C.C.P. art. 925. Additionally, La. C.C.P. art

928 mandates that declinatory exceptions must be raised “prior to or in the answer

and, prior to or along with the filing of any pleading seeking relief . . . . ”

2
Because we find that our reversal of the trial court’s judgment on Exxon’s April 26, 2021
declinatory exception of improper venue to be dispositive, we do not address the trial court’s
judgment overruling Exxon’s renewal of its previous declinatory exception of improper venue.

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The general rules of venue are set forth in La. C.C.P. art. 42, which provides,

in pertinent part, that “an action against . . . [a] domestic corporation, a domestic

insurer, or a domestic limited liability company shall be brought in the parish

where its registered office is located.” Nevertheless, La. C.C.P. art. 73 provides an

exception to the general rules:

A. An action against joint or solidary obligors may be brought in a
parish of proper venue, under Article 42 only, as to any obligor
who is made a defendant provided that an action for the recovery
of damages for an offense or quasi-offense against joint or solidary
obligors may be brought in the parish where the plaintiff is
domiciled if the parish of plaintiff’s domicile would be a parish of
proper venue against any defendant under either Article 76 or R.S.
13:3203.

B. If the action against this defendant is compromised prior to
judgment, or dismissed after a trial on the merits, the venue shall
remain proper as to the other defendants, unless the joinder was
made for the sole purpose of establishing venue as to the other
defendants.

Despite the time in which declinatory exceptions must be raised pursuant to

La. C.C.P. art. 928, we have previously held that “[a] nonresident defendant may

except to venue once the last resident defendant is dismissed [from] the suit prior

to trial.” Durio v. Robert E. Lee, Inc., 2000-1314, p. 2 (La. App. 4 Cir. 8/2/00), 774

So.2d 181, 182 (citing Cheramie v. Acadian Ambulance Service, Inc., 1995-0038

(La. App. 1 Cir. 10/6/95), 671 So.2d 489).

Exxon maintains that venue can only remain proper in Orleans Parish if the

Orleans Parish defendants, Taylor-Seidenbach and Eagle, Inc., were dismissed

from this case pursuant to a compromise or settlement prior to judgment on the

merits or were dismissed after trial on the merits. Exxon argues that neither

defendant was dismissed pursuant to a compromise or settlement, which renders

venue improper in Orleans Parish. Exxon also argues that, even if they were

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dismissed pursuant to a settlement, Taylor-Seidenbach and Eagle, Inc. were only

named as defendants in this action so that Mr. Deaville could gain proper venue in

Orleans Parish.

Mr. Deaville responds that La. C.C.P. art. 73(B) does not limit the term

“compromise” to a money settlement. Thus, Mr. Deaville argues, the agreement he

reached with Taylor-Seidenbach to waive payment of court costs amounts to a

“compromise.” Mr. Deaville maintains that the procedural vehicle—a motion for

dismissal without prejudice—by which he chose to communicate the compromise

he reached with Taylor-Seidenbach is not relevant.

In beginning our de novo review of the trial court’s judgment, we must first

determine if Eagle, Inc. or Taylor-Seidenbach were released by a settlement or

compromise or dismissed after trial on the merits, such that venue can remain

proper in Orleans Parish under La. C.C.P. art. 73(B). There is no dispute that

neither defendant was dismissed after trial on the merits. Thus, we consider

whether, as Mr. Deaville contends, Eagle, Inc. and Taylor-Seidenbach were

dismissed pursuant to a compromise such that venue could remain proper in

Orleans Parish.

“A compromise is a contract whereby the parties, through concessions made

by one or more of them, settle a dispute or an uncertainty concerning an obligation

or other legal relationship.” La. C.C. art. 3071. “A release executed in exchange for

consideration is a compromise.” Carrie v. La. Farm Bureau Cas. Ins. Co., 2004-

1001, p. 3 (La. App. 4 Cir. 2/16/05), 900 So.2d 841, 843 (internal citation omitted).

Importantly, “[a] mere unilateral release whereby without any shown or

proven consideration one party receives nothing in exchange for the release of his

claim, does not meet the legal requirements of a valid compromise….” Williams v.

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Winn Dixie, 447 So.2d 8, __ (La. App. 4 Cir. 1984) (quoting Bielkiewicz v.

Rudisill, 201 So.2d 136 (La. App. 3 Cir. 1967) (internal quotations omitted).

We find that the claims against Eagle, Inc. and Taylor-Seidenbach were not

compromised here. First, we note that both defendants were dismissed from this

matter without prejudice unilaterally by Mr. Deaville. The motions to dismiss both

Eagle, Inc. and Taylor-Seidenbach are virtually identical here, providing that each

defendant was dismissed without prejudice and that each party (along with Mr.

Deaville) was to bear their own costs.

La. C.C.P. art. 1673 provides that “[a] judgment of dismissal with prejudice

shall have the effect of a final judgment of absolute dismissal after trial” while “[a]

judgment of dismissal without prejudice shall not constitute a bar to another suit on

the same cause of action.” Because Eagle, Inc. and Taylor-Seidenbach were

dismissed without prejudice, Mr. Deaville could still theoretically pursue his

claims against them in another, later-filed lawsuit, which supports the conclusion

that Mr. Deaville’s claims against them were not settled and compromised with the

effect of a final judgment.

This Court faced a similar issue in Durio where the plaintiff filed a motion

and order to dismiss the last Orleans Parish defendant without prejudice with

reservation of rights. Though we ultimately found that the defendant who excepted

to venue after the last Orleans Parish defendant had been dismissed waived their

right to file its declinatory exception of venue, this Court found that the motion to

dismiss without prejudice did not amount to a compromise between the plaintiff

and Orleans Parish defendant that would allow venue to continue to be proper in

Orleans Parish. Id., 2000-1314, p. 2, 774 So.2d at 182.

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Second, we note that, in looking at the record, there is no evidence that

Eagle, Inc. or Taylor-Seidenbach reached a settlement with Mr. Deaville that

resulted in their dismissal. The record shows that Mr. Deaville reached settlements

with other defendants he originally named in his Petition for Damages that were

reduced to writing, with the terms of the settlements stated therein. No similar

settlement documents concerning Eagle, Inc. or Taylor-Seidenbach exists in the

record before this Court. Additionally, we note that, when given the opportunity to

state for the record which defendants Mr. Deaville settled with, including Eagle,

Inc. and Taylor-Seidenbach, counsel for Mr. Deaville merely maintained that

Eagle, Inc. and Taylor-Seidenbach’s dismissals were “dismissals without

prejudice.”

The only record of any possible compromise Mr. Deaville had with Taylor-

Seidenbach or Eagle, Inc. regarding court costs comes from the motions to dismiss

themselves, which Mr. Deaville argued before the trial court was an agreement to

“waive court costs.” Mr. Deaville contends that, despite the unilateral dismissal

without prejudice, this Court should still find that this agreement amounted to a

compromise between Mr. Deaville and each defendant. In support of this

argument, Mr. Deaville cites Darbonne v. Allied Signal, Inc., 2003-0527 (La. App.

3 Cir. 11/12/03), 865 So.2d 772.

In Darbonne, the plaintiff filed a joint petition for voluntary dismissal of a

defendant in the case and the remaining defendant excepted to the venue and

moved to transfer the matter, arguing that venue was no longer proper in the venue

where the case was pending because the claims against the dismissed defendant

were not, pursuant to La. C.C.P. art. 73(B), “compromised prior to judgment” or

“dismissed after a trial on the merits.” Id., 2003-0527, p. 4, 865 So.2d at 776. The

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Third Circuit found that venue provisions should be given a more liberal

construction and that “the legislature intended for ‘compromise’ [under La. C.C.P.

art. 73] to encompass more than a claim that is disposed of via a compromise

agreement under La. Civil Code art. 3071.” Id. Thus, the Third Circuit noted, the

filing of a joint petition for voluntary dismissal required an agreement between the

plaintiff and the dismissed defendant, which satisfied the liberal definition of

compromise under La. C.C.P. art. 73(B). Id., 2003-0527, p. 5, 865 So.2d at 776.

We find Darbonne to be inapposite here. The motions to dismiss filed here

were not joint petitions to dismiss between Mr. Deaville and Taylor-Seidenbach or

Eagle, Inc. Rather, they were unilateral motions to dismiss which, unlike the joint

motion to dismiss in Darbonne, do not evidence a compromise between Mr.

Deaville and the dismissed defendants.

We likewise find that the alleged agreement for waiver of court costs

contained in the motions to dismiss are inadequate to establish a compromise under

La. C.C.P. art. 73(B). We note that the motion to dismiss provides only that each

party is to bear their own costs, and does not include a waiver of any kind by either

Mr. Deaville or the dismissed defendants.

“While the general rule is that the party cast in judgment should be assessed

with court costs, the trial court may assess costs in any equitable manner and

against any party in any proportion it deems equitable, even against the party

prevailing on the merits.” Ballex v. Mun. Police Emps. Ret. Sys., 2016-0905, p. 20

(La. App. 1 Cir. 4/18/17), 218 So.3d 1076, 1088. Accordingly, it was always

possible that the defendants, along with Mr. Deaville, would have been ordered to

pay their own court costs, even if they prevailed at trial on the merits. Therefore,

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we find that neither Mr. Deaville nor either defendant made concessions that

resulted in the defendants’ dismissal.

In its reasons for judgment, the trial court found that Mr. Deaville

established that his claims against Taylor-Seidenbach were compromised by an

agreement to dismiss Taylor-Seidenbach in exchange for a waiver of costs.

Notably, “reasons for judgment only set forth the basis for the court's holding and

are not binding.” Scott v. Am. Tobacco Co., Inc., 2015-1352, p. 11 (La. App. 4 Cir.

5/25/16), 195 So.3d 624, 630 (internal citations omitted). The motions to dismiss

in this case do not provide for a waiver of costs; rather, they provide that each

party is to pay their own costs. No compromise nor settlement is evident; thus, we

find that the record does not support the trial court’s finding that the parties’ made

concessions prior to the dismissal of the Orleans Parish defendants.

In finding that there were no compromises reached with Taylor-Seidenbach

or Eagle, Inc.—the undisputed only Orleans Parish defendants in this matter—we

find that the exception to the general venue rules laid out in La. C.C.P. art. 73(B) is

inapplicable here and that venue is no longer proper in Orleans Parish.

Accordingly, the trial court’s judgment denying Exxon’s April 26, 2021

declinatory exception of improper venue is reversed, and we render judgment

granting Exxon’s April 26, 2021 declinatory exception of improper venue.

Because we have found that venue is no longer proper in Orleans Parish due

to lack of compromise, we pretermit discussion of whether Taylor-Seidenbach and

Eagle, Inc. were named as defendants in this action solely for the purpose of

establishing venue in Orleans Parish. We also pretermit discussion of the trial

court’s judgment overruling Exxon’s renewed declinatory exception of improper

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venue, as this judgment is rendered moot by our Opinion rendering judgment

granting Exxon’s April 26, 2021 declinatory exception of improper venue.

This matter is remanded to the trial court for further proceedings consistent

with this Opinion.

DECREE

For the foregoing reasons, we grant Exxon’s writ application, reverse the

trial court’s judgment, and render judgment granting Exxon’s declinatory

exception of improper venue. Further, we lift the stay issued by this Court in this

matter on April 28, 2021, and remand this matter for further proceedings consistent

with this Opinion.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED;
STAY LIFTED; REMANDED

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