Global Disaster Services, LLC Versus Whitestone Construction Group, LLC

GLOBAL DISASTER SERVICES, LLC NO. 24-C-25

VERSUS FIFTH CIRCUIT

WHITESTONE CONSTRUCTION GROUP, LLC COURT OF APPEAL

STATE OF LOUISIANA

April 30, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE WHITESTONE CONSTRUCTION GROUP, 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 840-931

Panel composed of Judges Fredericka Homberg Wicker,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED

In this case arising from a suit on open account, defendant Whitestone
Construction Group, LLC (“Whitestone”) seeks supervisory review of a December
18, 2023 judgment overruling their declinatory exception of improper venue. On
the showing made, and upon de novo review, we grant Whitestone’s writ
application, vacate the judgment of the trial court, and render judgment sustaining
Whitestone’s declinatory exception of improper venue.

In its Petition on Open Account, Global Disaster Services, LLC (“GDS”) a
Louisiana limited liability company with its principal place of business in the
Parish of Jefferson, avers that defendant Whitestone is indebted unto GDS in the
sum of $1,075,594.91 plus interest, attorney’s fees, and costs for labor and work
provided to Whitestone for construction projects performed in the state of Texas.
GDS states that venue in Jefferson Parish is proper pursuant to La. C.C.P. art 74.4
because GDS opened and maintained Whitestone’s open account in the Parish of
Jefferson. Included with the Petition, GDS attached account statements and
invoices from October of 2022 to April of 2023.

Whitestone filed a declinatory exception of improper venue in which it
argued that venue for GDS’s suit is proper in Orange County, Florida pursuant to a
forum selection clause contained in contracts signed by GDS. In support of the
exception, Whitestone attached as exhibits copies of three Short Form Subcontract
Agreements (“Agreements”) dated July 26, 2022, February 23, 2023, and March
18, 2023. Whitestone asserts those Agreements govern the work for which GDS
seeks payment. In addition, Whitestone attached an affidavit from Mark Filburn,

1

president of Whitestone Construction Group, who attested that GDS entered into
the contractual agreements with Whitestone as shown in the exhibits.

At the hearing on the motion, argument by GDS focused on the absence of
Whitestone’s signatures on the Agreements. GDS contended that the lack of
Whitehouse’s signatures precluded its enforcement of the forum selection clause.
Following arguments, the trial court denied Whitestone’s exception.

Venue presents a question of law, which is reviewed de novo by the
appellate court. Seghers v. LaPlace Equip. Co., Inc., 13-350, (La. App. 5 Cir.
2/12/14), 136 So.3d 64. Evidence may be presented at a hearing on a declinatory
exception. La. C.C.P. art. 930. If evidence is admitted at a hearing on a
declinatory exception, the exception must be resolved on the exception as
presented, rather than on the allegations in the petition. Woods v. Ace Am. Ins. Co.,
23-450 (La. App. 5 Cir. 10/31/23), 2023 WL 7140887, writs denied, 23-1575 (La.
2/6/24), 378 So.3d 748, and 23-1635 (La. 2/6/24), 378 So.3d 751; Johnson v. Byrd,
48,411 (La. App. 2 Cir. 9/25/13), 125 So.3d 1220. 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 as true the allegations made in the petition. Woods, supra; Chumley v.
White, 46,707 (La. App. 2 Cir. 11/9/11), 80 So.3d 39, writ denied, 11-2741 (La.
2/17/12), 82 So.3d 288.

The Agreements introduced into evidence by Whitestone appear to indicate
that at least some of the work for which GDS claims payment owed was performed
pursuant to contract rather than upon open account. These Agreements all contain
a provision which states, “[i]t is expressly agreed by the Subcontractor that the
venue for all legal actions associated with [litigation to resolve a dispute] shall be
Orange County, Florida.” The fact that the first two contracts of July 26, 2022 and
February 23, 2023 were signed by GDS but not by Whitestone does not mean that
the forum selection clause contained within them is unenforceable.

A contract is formed by consent, through offer and acceptance. La. C.C. art.
1927. When, in the absence of a legal requirement, the parties contemplate a
certain form, it is presumed that they did not intend to be bound until the contract
was executed in that form. La. C.C. art. 1947. While an ordinary act under private
signature must be signed by the parties, La. C.C. art. 1837, a jurisprudential
exception to this statutory requirement exists when only one party has signed an
agreement and the non-signing party has availed himself of the agreement or taken
actions evidencing his acceptance thereof. See La. C.C. art. 1837, Revision
Comment (b); La. C.C. art. 1927, (“Unless otherwise specified in the offer, there
need not be conformity between the manner in which the offer is made and the
manner in which acceptance is made.”)

Forum selection clauses should be enforced in Louisiana unless the resisting
party can clearly show that enforcement would be unreasonable and unjust, or that
the clause was invalid for such reasons as fraud or overreaching or that
enforcement would contravene a strong public policy of the forum in which the
suit is brought. Shelter Mut. Ins. Co. v. Rimkus Consulting Grp., Inc. of Louisiana,
13-1977 (La. 7/1/14), 148 So.3d 871, 881. GDS has made no such showing here.

2

Accordingly, we grant relator’s writ application, vacate the December 18,
2023 judgment of the trial court, and sustain the declinatory exception of improper
venue filed by Whitestone.

Gretna, Louisiana, this 30th day of April, 2024.

TSM
FHW
SUS

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 04/30/2024 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:

24-C-25
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable E. Adrian Adams (DISTRICT JUDGE)
Elizabeth A. Roussel (Relator)
Luke G. LaHaye (Relator)

MAILED
Corey E. Dunbar (Respondent)
Attorney at Law
8311 Highway 23
Suite 104
Belle Chasse, LA 70037

-----n,a.==,e- :-:,r.,:r.r-
- - -

SENDl:::1<· COMPLL Tl rH!S SLC 7/0N

■ 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. Article Addressed to:
If YES, enter delivery address below:
Corey E. Dunbar
Attorney at Law
8311 Highway 23- Suite 104
Belle Chasse, LA 70037
24-C-25 04-30-24
3. Sel'vlceType □ Prlortty Mall Expn,sse

I
111111111 llll lllllll IIll IIII II 111111111111111
9590 9402 2434 6249 3564 91
□ AdultSignalln
□ }dJtS11!1181u'eRastrlcladDellwly
llt'Certi1-!Male :e:MallRffllcted
□ Registered Mall"'

□ Cel1lfltd Mall Awtrld.i Deltvery
Mll'chal'=pt for
□ Colect an Delvay
- 2.- Arti
- .c-le_N_u_m_ (7i_rans
be_r__ _ fer
_-from ...,....-- - - - i □ Collect on DIIMlry Rastrtchld Dellwly
-serv/--ce- labe/) □ Signature Conflrmatlon1IO
'"1 Insured Mall □ Signature Conflrmatlon
ReelrlcteclDellwry
701b 207 □ 0000 0Cf54 8704 llnslndMallfle8111ctedOehwy
(over$500)
PS Form 3811, July 2015 PSN 7530-o2-000-9053 Domestic Return Receipt !