Christopher Burns Versus United Bulk Terminals Davant, LLC

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

April 26, 2022

Alexis Barteet
Deputy Clerk

IN RE UNITED BULK TERMINALS DAVANT, LLC

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS,
DIVISION "G", NUMBER 807-658

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Hans J. Liljeberg

WRIT GRANTED; JUDGMENT VACATED, IN PART; CASE
REMANDED TO 19TH JUDICIAL DISTRICT COURT FOR FURTHER
PROCEEDINGS

In this writ application, relator-defendant, United Bulk Terminals Davant,
LLC (“United”), seeks this Court’s supervisory review of the district court’s
December 6, 2021 judgment overruling United’s Peremptory Exception of
Prescription and granting respondent-plaintiff, Christopher Burns’, Motion to
Extend Deadlines pursuant to La. R.S. 9:5830. After review, and finding that the
trial court erred in addressing the Exception of Prescription and Motion to Extend
Deadlines, we grant the writ, vacate the trial court’s judgment, in part, and remand
this matter to the 19th Judicial District Court for further proceedings.

Factual and Procedural History

On June 28, 2019, Christopher Burns allegedly sustained personal injuries at
United’s facility located in Plaquemines Parish. Five days prior to the one-year
prescriptive period, on June 23, 2020, Mr. Burns fax-filed suit to the 24th Judicial
District Court in the Parish of Jefferson. In response to the suit, on December 17,
2020, United filed a Declinatory Exception of Improper Venue and a Peremptory
Exception of Prescription.

On February 3, 2021, Mr. Burns filed a Motion to Extend Deadlines
pursuant to La. R.S. 9:5830, alleging COVID-19 related reasons for the requested
extension. The exceptions and motion were all first heard on February 9, 2021,
after which the trial court ruled from the bench, granting the declinatory Exception
of Improper venue, denying the peremptory Exception of Prescription, granting the

21-C-738

Motion to Extend Deadlines, and ordering the case transferred to the 19th Judicial
District Court in Baton Rouge.

On February 22, 2021, the trial court rendered a written judgment
memorializing its earlier oral rulings. Thereafter, on March 19, 2021, United
sought this Court’s supervisory review of the February 22, 2021 judgment. On
April 27, 2021, this Court granted the writ, in part, on the basis that United had not
been properly served with Mr. Burns’ motion or given an opportunity to file a
written response before the February, 2021 hearing. This Court vacated the
February 22, 2021 judgment and remanded the matter with instructions to the trial
court to conduct an evidentiary hearing on all matters addressed at the February 9,
2021 hearing.1

On November 30, 2021, the trial court again heard the exceptions and
motion, thereafter, taking the matter under advisement.2 On December 6, 2021, the
trial court rendered its written judgment. The trial court’s judgment reflects that the
court addressed first Mr. Burns’ Motion to Extend Deadlines, then United’s
peremptory Exception of Prescription and third, United’s declinatory Exception of
Improper Venue. The trial court judgment further ordered that the case be
transferred to the 19th Judicial District Court. The trial court judgment provides:

JUDGMENT
…
Accordingly, when after having considered the pleadings filed, the
law, evidence and argument of counsel:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
the Motion to Extend Deadlines Pursuant to La.R.S. 9:5830 and for
Expedited Hearing filed by the plaintiff, Christopher Burns, and
against the defendant, United Bulk Terminals Davant, L.L.C., is
hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
Peremptory Exception of Prescription filed by the defendant, United
Bulk Terminals Davant, L.L.C., and against the plaintiff,
Christopher Burns, is hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the Declinatory Exception of Improper Venue filed by the defendant,
United Bulk Terminals Davant, L.L.C., and against the plaintiff,
Christopher Burns, is hereby SUSTAINED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the matter entitled Christopher Burns v. United Bulk Terminals,
L.L.C., filed in the 24th Judicial District Court be transferred to
the 19th Judicial District Court in East Baton Rouge Parish.

1
Burns v. United Bulk Terminals Davant, LLC, 21-135 (La. App. 5 Cir. 4/27/21), -- So.3d --, 2021 WL 1649788.
2
While relator failed to attach the transcript of the November 30, 2021 hearing to its writ application, relator did
include documents, including the minute entry of that proceeding, from which this court is able to discern that at the
conclusion of the hearing the trial court took the three matters before it under advisement. Relator also attached to
this writ application the December 6, 2021 judgment in question. As the trial court did not rule from the bench, the
transcript is unnecessary to the issue addressed in this disposition.
2

In this writ application, relator, United, seeks this Court’s review of the trial
court’s December 6, 2021 judgment insofar as it overruled United’s Exception of
Prescription and granted Mr. Burns’ Motion to Extend Deadlines pursuant to La.
R.S. 9:5830.3

Law and Analysis

A party may properly simultaneously file declinatory and peremptory
exceptions. However, in that instance, the trial court should first rule upon a
declinatory exception before ruling upon a peremptory exception filed before or at
the same time. Schexnayder v. Gish, 06-579 (La. App. 5 Cir. 12/27/06), 948 So.2d
313, 314. See Favorite v. Alton Ochsner Medical Foundation, 537 So.2d 722 (La.
App. 4 Cir. 1988); and Bennett v. Giarrusso, 583 So.2d 607 (La. App. 4 Cir.1991).

In this case, relator, United, simultaneously filed a declinatory Exception of
Improper Venue and a peremptory Exception of Prescription. Thereafter, Mr.
Burns filed his Motion to Extend Deadlines. Although the declinatory and
peremptory exceptions were properly filed and heard simultaneously, the trial court
erred in failing to rule first upon the declinatory Exception of Improper Venue.
Thereafter, upon granting that exception, the trial court further erred in failing to
then transfer the case to the 19th J.D.C., the court of proper venue, leaving the two
remaining exceptions to be addressed by the 19th J.D.C. See Favorite v. Alton
Ochsner Medical Foundation, 537 So.2d 722, 724 (La. App. 4 Cir. 1988) (holding
that a declinatory exception of improper venue must be tried before a peremptory
exception filed before or at the same time.); Schexnayder v. Gish, 06-579 (La. App.
5 Cir. 12/27/06), 948 So.2d 313, 314 (holding the trial court was required to rule
on exception of improper venue prior to peremptory exception of no right of action
and further holding that “…the transferee court should not be bound by a decision
of a co-equal court from another parish.”).

Accordingly, we hereby grant this writ, vacate the trial court’s December 6,
2021 judgment, in part, insofar as it denied United’s peremptory Exception of
Prescription and granted Mr. Burns’ Motion to Extend Deadlines, and remand this
case to the 19th Judicial District Court for the Parish of East Baton Rouge for
further proceedings.

Gretna, Louisiana, this 26th day of April, 2022.

FHW

3
No party has complained of the trial court’s ruling on the declinatory Exception of Improper Venue and, thus, that
portion of the judgment is not before this Court for review.
3

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

WINDHORST, J., CONCURS WITH REASONS
While I agree with the disposition of this writ, I respectfully disagree with

the finding that based on the sequence of the rulings in the judgment, the trial court

erred in failing to rule first upon United’s declinatory exception of improper

venue. In all other respects, I agree.

SJW

21-C-738

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

LILJEBERG, J., CONCURS WITHOUT REASONS

HJL

21-C-738

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 04/26/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-C-738
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Kirk N. Aurandt (Relator)
Vionne M. Douglas (Respondent)

MAILED
Stephanie Bridges (Respondent) Michael W. McMahon (Relator)
Attorney at Law Attorney at Law
650 Poydras Street Post Office Box 5350
Suite 2303 Covington, LA 70434
New Orleans, LA 70130

• Complete Items 1, 2, and 3.
• Print your name aid address on th6 reverse
so that we can return the card to you.
• Attach this card to the back of the mallplece.
or on the front If apace permits.
1. ArUc:le Addrell8ed to:
Micha••! W. McMahon
Attorl'cy at Law
Post Office Box 5350
Covington, LA 70434
21 -C-738 04-26-22

111111111111111111111 im 11111 m111111 H
9590 9402 2434 6249 3550 67

\ PS Form 381 t July 2015 PSN 7530-02..000-9053 ., -.L..J._..__ _ _ ___.Do1
__mes_~_ac_Aetum~__;_..Recel~p:....t..J

• Complete Items 1, 2, and 3.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mallplece.
or on the front If space permits.
1. Artlcle Addnl88ed to:
Stephanie Bridges
Attorney at Law
650 Poydras Street
Suite 2303 • l
New Orleans, LA 70130
21-C-738 04-26-22 I

11111111111111111111 1m 11111 1u1 111~ ~
n m
9590 9402 2434 6249 3550 50

---
, July 2015 PSN 7630-02-<l00-9063