Louisiana MacHinery Company, L.L.C. Versus Don Bihm Equipment Co., Inc. and Donald Ray Bihm

LOUISIANA MACHINERY COMPANY, L.L.C. NO. 22-C-471

VERSUS FIFTH CIRCUIT

DON BIHM EQUIPMENT CO., INC. AND COURT OF APPEAL
DONALD RAY BIHM
STATE OF LOUISIANA

November 17, 2022

Linda Wiseman
First Deputy Clerk

IN RE DON BIHM EQUIPMENT CO., INC. AND DONALD RAY BIHM

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SHAYNA BEEVERS
MORVANT, DIVISION "M", NUMBER 829-350

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Hans J. Liljeberg

WRIT GRANTED FOR LIMITED PURPOSE; REMANDED

Relators, Don Bihm Equipment Co., Inc. and Donald Ray Bihm, seek review
of the trial court’s August 25, 2022 judgment that overruled their declinatory
exception of improper venue in favor of Respondent, Louisiana Machinery
Company, L.L.C. (“Louisiana Machinery”). In their exception, Relators sought
dismissal of Respondent’s action against them on the bases that: they are domiciled
in West Baton Rouge Parish, and all of the business done with them was conducted
in their West Baton Rouge Parish office; and, the equipment leased from Louisiana
Machinery is located on the site of their West Baton Rouge Parish business, which
is where the maintenance and repairs were done. Relators asserted that nothing in
Louisiana Machinery’s petition indicated that any transaction between the parties
occurred in Jefferson Parish. Louisiana Machinery opposed the exception, arguing
there was a specific transaction in Jefferson Parish whereby Relators purchased and
took delivery of certain parts from Louisiana Machinery in Harvey, Louisiana.

At the hearing on the exception, Louisiana Machinery introduced an affidavit
of Jason Maurin in support of their contention that venue is proper in Jefferson
Parish, which was accepted by the trial court. In opposition to Louisiana
Machinery’s evidence, Relators offered the live testimony of Donald Bihm. 1 The
trial court prohibited the introduction of Mr. Bihm’s live testimony, citing
noncompliance with Uniform Rules—District Courts, Rule 9.8(a).

Venue is a question of law, which is reviewed de novo by an appellate court.
Ameriprint, LLC v. Canon Solutions America, Inc., 21-94 (La. App. 5 Cir. 5/24/21),

1
Relators also sought to introduce documentation, which was denied by the trial court on the basis that the
documents were not certified.

--- So.3d ----, 2021WL2093283. Evidence may be presented at a hearing on a
declinatory exception. Id.; La. C.C.P. art. 930. If evidence is admitted at a hearing
on a declinatory exception, the exception must be resolved on the evidence
presented, rather than on the allegations in the petition. Id. For purposes of a venue
exception, the allegations of the plaintiff’s petition are taken as true; however, when
evidence is offered at a trial on the exception, the court is not bound to accept the
allegations of the petition as true. Id.

La. C.C.P. art. 930 permits the presentation of evidence to support or
controvert any objection pleaded. 2 Because La. C.C.P. art. 930 allows the
presentation of evidence and admissible evidence can be considered in resolving the
exception of improper venue, we find that the trial court erred in prohibiting
Relators’ presentation of live testimony. (Compare, Burke v. Cohen, 19-544 (La.
App. 5 Cir. 5/28/20), 296 So.3d 1231, 1236, where this Court held that
noncompliance with Uniform Rules—District Courts, Rule. 9.9(d) did not preclude
the defendants from arguing or presenting evidence at the trial on the peremptory
exception of prescription to support their position.).

Accordingly, we grant the writ application for a limited purpose, reverse the
trial court’s August 25, 2022 judgment that overruled the Relators’ declinatory
exception of improper venue, and remand the matter for further proceedings.

Gretna, Louisiana, this 17th day of November, 2022.

MEJ
SMC
HJL

“The Louisiana Code of Civil Procedure takes precedence over the District Court Rules.” Uniform
2

Rules—District Courts, Rule 9.8, Comment (a).

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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 11/17/2022 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:

22-C-471
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Shayna Beevers Morvant (DISTRICT JUDGE)
Michael C. Drew (Respondent) Graham H. Ryan (Respondent)

MAILED
Charles E. Griffin (Relator)
Attorney at Law
Post Office Box 1817
St. Francisville, LA 70775

• Complete Items 1, 2, and 3.
• Print your name and ad<hss 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. Article Addressed to:

Cbirl~ ·E. Griffin
At~·atLaw
Poli Office Box 1817
St. .Erancisville, LA 70775
22-C,.i:J71 11-17-22

llllllllllllllllllllllllllllllllllllllllllllll ~gD~Mal=I~~
9590 9402 2434 6249 3638 02
g~~
-·-r J;;;~,_...""
,_u,_, ,_..._
D Collect on Oeltvety Merc:handlse
_2_4_.t-lrlA_llll_un-.'w--ffl-m<_"1a_fRr
_ _hnm_SMVlce _ _ _ _- I D Collec:t on Delivery Restrtctad Dellvery D $lgnat\r8 Contlrmation"'
_ _laball

7016 201a aaoa 0954 1110 ~Re&trictedDellv«y c=~
PS Form 3811, July 2015 PSN 7530-02-<>00-9053 Domestic Return Receipt l