Todd S. Darbonne v. Allied Signal, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-527

TODD S. DARBONNE, HEIDI DARBONNE, SHANNON BOUDREAUX
AND HORIZON HELICOPTER

VERSUS
ALLIED SIGNAL, INC., ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 2000-5759
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********

Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy
Howard Ezell, Judges.

REVERSED AND REMANDED WITH INSTRUCTIONS.

J. B. Jones, Jr. Kenneth H. Laborde
Jones Law Firm Leo R. McAloon, III
Post Office Drawer 1550 Pulaski, Gieger, & Laborde
Cameron, Louisiana 70631 Suite 4800, One Shell Square
(337) 775-5714 701 Poydras Street
Counsel for Plaintiffs/Appellees: New Orleans, Louisiana 70139-4800
Todd Shayne Darbonne (504) 561-0400
Heidi Darbonne Counsel for Plaintiff/Appellee:
Horizon Helicopter, Inc.
Lawrence N. Curtis
Curtis & Lambert Howard Daigle, Jr.
Post Office Box 80247 James L. Bradford, III
Lafayette, Louisiana 70598-0247 Daigle & Fisse
(318) 235-1825 109 Northpark Boulevard, Suite 125
Counsel for Plaintiff/Appellee: Covington, Louisiana 70433
Shannon Boudreaux (985) 871-0800
Counsel for Defendant/Appellant:
Honeywell International, Inc.

WOODARD, Judge.

Honeywell appeals an interlocutory judgment, denying its motion to transfer
venue from the 14th JDC for Calcasieu Parish to the 19th JDC for East Baton Rouge
Parish. We reverse the trial court’s decision, remand the case, and order that it be
transferred to the 19th JDC.

*****

On June 15, 1998, a helicopter lost power while transporting Mr. Todd
Darbonne and Mr. Shannon Boudreaux from an offshore oil platform in the Gulf of
Mexico. The pilot successfully landed the helicopter on the water’s surface, but when
a float on one side of the helicopter deflated, it capsized. Mr. Paul Anderton, the
helicopter’s pilot, Mr. Darbonne, and Mr. Boudreaux deployed a raft and waited until
the Coast Guard rescued them about four hours later. The helicopter, which Horizon
Helicopters, Inc. (Horizon) owned, sank. Allied Signal, Inc., which is now Honeywell
International, Inc. (Honeywell), manufactured and sold the power turbine governor
and fuel control unit installed in the helicopter’s engine.
Subsequently, Mr. and Mrs. Darbonne, Mr. Boudreaux, and Horizon filed suit
against several Defendants. Mr. Darbonne and Mr. Boudreaux sought damages for
personal injuries; Mrs. Darbonne brought a claim for her loss of consortium; and
Horizon sought property damages for the loss of its helicopter.
Before filing this suit in state court, Mr. and Mrs. Darbonne and Mr. Boudreaux
filed suit against Horizon and other defendants in federal court. That lawsuit, among
other things, resulted in a settlement, via a Mary Carter Agreement between Mr. and
Mrs. Darbonne and Mr. Boudreaux with Horizon. This settlement explains the reason
that Horizon is now a Plaintiff along with Mr. and Mrs. Darbonne and Mr. Boudreaux.
This appeal arises from a dispute over the proper venue for the underlying
causes of action. Initially, Plaintiffs filed a lawsuit against Honeywell, L&L Oil Co.,
Inc., and L&L Oil and Gas Services, L.L.C., in the 38th Judicial District Court (JDC)
for Cameron Parish. Subsequently, they added Moffitt Oil Company, Inc. (Moffitt)
as a Defendant. Honeywell excepted to venue in the 38th JDC. While its exception
was pending, Plaintiffs voluntarily dismissed both L&L Oil entities, leaving only
Honeywell and Moffitt as Defendants. The 38th JDC found that venue was improper

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and sustained Honeywell’s exception. It, then, transferred the case to the 14th JDC for
Calcasieu Parish.
After the case was transferred to the 14th JDC, the Plaintiffs voluntarily
dismissed Moffitt, leaving Honeywell as the sole Defendant. When Honeywell
learned of the dismissal, it moved for a transfer of venue from the 14th JDC to the 19th
JDC for East Baton Rouge Parish. The trial court denied Honeywell’s motion and
maintained that the 14th JDC was a proper venue for the case. Honeywell appeals.
Accordingly, we must decide if the 14th JDC was correct in determining that the
case may be maintained in its court or whether the case must be transferred to the 19th
JDC in East Baton Rouge Parish.

*****

VENUE ARTICLES

Venue refers to the proper parish in which to file an action. The Louisiana
Code of Civil Procedure delineates the rules for determining the proper venue(s) in
a particular case.1 Louisiana Code of Civil Procedure Article 42 provides the general
rules governing proper venue. In the case at bar, the relevant rule is in subsection (4),
which states:

A foreign corporation or foreign limited liability company
licensed to do business in this state shall be brought in the parish where
its primary business office is located as designated in its application to
do business in the state, or, if no such designation is made, then in the
parish where its primary place of business in the state is located.

The above article is subject to certain exceptions.2 Two are relevant in the case
at bar; namely, those in Articles 73 and 74. In an action to recover damages which an
offense or quasi offense causes, Article 74 renders venue proper in the parish in which
the wrongful conduct occurred or damages were sustained. Article 73 provides, in
pertinent part: “An action against joint or solidary obligors may be brought in a parish

1
La.Code Civ.P. art. 41.
2
La.Code Civ.P. art. 43.

2

of proper venue, under Article 42 only, as to any obligor who is made a defendant .
. . .” (Emphasis added.)
Under Article 42, the proper venue for Honeywell is the 19th JDC for East
Baton Rouge Parish, and the proper venue for Moffitt (now dismissed) is the 14th JDC
for Calcasieu Parish.

PROCEEDINGS IN CAMERON PARISH—38TH JDC

Initially, the Plaintiffs in this case filed suit in the 38th JDC against several
Defendants, including Honeywell. Honeywell excepted to venue there. Before the
court ruled on the exception, some of the Defendants were voluntarily dismissed. In
fact, when the 38th JDC ruled on Honeywell’s exception of improper venue,
Honeywell and Moffitt were the only remaining Defendants. Plaintiffs argued that,
under Article 74, the 38th JDC was a proper venue for, both, Moffitt and Honeywell,
as joint tortfeasors. However, Article 73 allows venue against a joint or solidary
obligor only when venue is proper for one of the obligors under the general rule of
Article 42. Because the 38th JDC was a proper venue for Moffitt under an exception,
rather than the general rule of Article 42, Article 73 did not apply to make it a proper
venue for Honeywell.
Accordingly, the 38th JDC granted Honeywell’s exception and dismissed the
case. Subsequently, the Plaintiffs moved for the trial court to clarify or reconsider its
judgment, urging it to transfer the case to the 14th JDC for Calcasieu Parish, rather
than dismissing it. Since the 14th JDC was a proper venue for Moffitt under Article
42, Article 73 applied to Honeywell, making venue in the 14th JDC proper because
Honeywell was allegedly a joint obligor with Moffitt. Thus, the 38th JDC amended
its ruling dismissing the suit, and transferred the case to the 14th JDC for Calcasieu
Parish.

PROCEEDINGS IN CALCASIEU PARISH—14TH JDC

When the case was transferred to the 14th JDC, the two Defendants were Moffitt
and Honeywell. However, the Plaintiffs voluntarily dismissed Moffitt from the case.
When Honeywell learned that Moffitt had been dismissed, it moved the 14th JDC to

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transfer venue to the 19th JDC, urging that the 14th JDC was no longer a proper venue
for it.
The Plaintiffs argue that, since venue in the 14th JDC was an appropriate venue
for Honeywell under Article 73 at the time the case was transferred, it remains a
proper venue under section B of that article. Article 73(B) states:

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.

Specifically, Plaintiffs aver that this article was designed to prevent forum
shopping, and continued venue in the 14th JDC is proper, absent a showing that they
were forum shopping.
Honeywell argues that subsection B does not provide continuing venue because
the action against Moffitt was neither “compromised prior to judgment” nor
“dismissed after a trial on the merits.”
However, our supreme court has recently given the venue provisions a more
liberal construction, elevating the status of the alternate venue provisions.3 This added
flexibility enables the court to consider the contacts and relationship between the
parties and the cause of action to the forum, advancing the ultimate goal of the venue
statutes, which is to provide a convenient place for trial.4 Accordingly, we no longer
have to give such a strict construction to the alternate provisions.5
Thus, we cannot agree with Honeywell’s strict construction of Article 73(B).
Instead, we find that the legislature intended for “compromise” to encompass more
than a claim that is disposed of via a compromise agreement under La.Code Civ.P. art.
3071. That article defines compromise as “an agreement between two or more
persons, who, for preventing or putting an end to a lawsuit, adjust their differences by
mutual consent, in the manner which they agree on, and which every one of them

3
Jordan v. Cent. La. Elec. Co., 95-1270 (La. 6/23/95); 656 So.2d 988.
4
Id.
5
Rachal v. Ford Motor Co., 96-160 (La.App. 3 Cir. 6/5/96), 676 So.2d 671, writ
denied, 96-2271 (La. 11/15/96), 682 So.2d 773.

4

prefers to the hope of gaining, balanced by the danger of losing.”6 The joint petition
for voluntary dismissal, which required an agreement between the Plaintiffs and
Moffitt in the instant case, satisfies this definition, even though the procedural vehicle
was a voluntary dismissal rather than a transaction or compromise agreement.
Therefore, under this analysis, the 14th JDC remains a proper venue in the instant case
unless the Plaintiffs joined Moffitt as a Defendant for the sole purpose of establishing
venue regarding Honeywell in the 14th JDC. In other words, if Plaintiffs used
Moffitt’s joinder as a method of forum shopping, Honeywell should not be required
to remain in the 14th JDC.7
Notwithstanding, the trial court found that venue was still proper in the 14th
JDC for two reasons: (1) the Plaintiffs were not forum shopping when the case was
transferred to the 14th JDC, and (2) Honeywell waived its objection to venue. We
examine each of these determinations.

FORUM SHOPPING

We agree with the trial court that the legislative intent behind Article 73(B) was
to prevent plaintiffs from forum shopping. However, we disagree with its factual
conclusion that the Plaintiffs were not forum shopping. Specifically, Moffitt’s
relationship to the helicopter in question was that Moffitt provided the fuel which the
aircraft was using at the time of the accident. However, Honeywell introduced
evidence in the record that, during the previous proceedings in federal court, Plaintiff
Horizon argued that the aircraft’s fuel was not contaminated, supporting its argument
with the pilot’s testimony that he checked the fuel before the flight and that the fuel
filter light on the instrument panel never lit up. Further, Horizon offered the
testimony of Mr. William Hutchison, a pilot who had tested the fuel after the accident,
who found that the fuel was not diluted or contaminated. Furthermore, Horizon
submitted expert testimony that “fuel contamination must be disregarded as a possible
cause of the engine failure.” (Emphasis added.) Notwithstanding, in the instant case,
Plaintiffs sued Moffitt, the provider of the fuel.

6
La.Code Civ.P. art. 3071.
7
La.Code Civ.P. art. 73(B).

5

Honeywell, also submitted in evidence a facsimile from Moffitt’s counsel to
Plaintiffs’ counsel, which stated, in pertinent part:

It is pretty clear from a review of the case that you have no
evidence that contaminated fuel was a cause of the accident. In fact, you
represented this very fact to the Federal Court in the previous federal
litigation in your Memorandum in Opposition to Motion to Remand.
Naturally, we will be propounding additional discovery to you to get a
copy of all of the Affidavits you referenced in the Memorandum,
including the one by the Horizon Helicopters pilot, Mr. William
Hutchison, that he tested fuel samples in the tanks post-accident and
found no contaminates, as well as the Affidavit from your expert, Mr.
Armond Edwards, that fuel contamination must be disregarded as a
possible cause of the engine failure. We are curious as to what
investigations you conducted since the filing of the memorandum that
prompted you to file this lawsuit against Moffitt Oil. As soon as you
respond to the outstanding discovery we plan on filing a Motion for
Summary Judgment with our key exhibit being your Memorandum.

Thus, as Honeywell pointed out to the trial court, the evidence from the federal
court proceedings reveals that Plaintiffs should have known that they did not have a
viable claim against Moffitt before they urged a transfer to Calcasieu Parish and, in
fact, before they initially filed suit. However, Moffitt was the only Defendant that
provided a basis for venue in the 38th JDC, where they wanted to try the case. Moffitt
was also the only party who gave the Plaintiffs a basis for requesting a transfer to the
14th JDC when the 38th JDC found venue improper. Without Moffitt, the 38th JDC
would have transferred the case to the 19th JDC. Thus, in both instances—in the initial
filing of suit as well as the requested transfer—it appears that the Plaintiffs were using
Moffitt as a vehicle to forum shop.
Accordingly, the exception to continuing venue under Article 73 applies. Thus,
venue became improper when Moffitt was voluntarily dismissed; Honeywell’s motion
should have been granted unless it waived its objection to venue.

WAIVER

The trial court found three particular actions constituting Honeywell’s waiver
to any objection it had to venue in the 14th JDC; namely, (1) because it failed to file
an objection to the transfer, (2) because it filed a summary judgment motion in the
14th JDC, and (3) because it continued to engage in discovery while the case was

6

pending in the 14th JDC. We examine each of these actions to determine whether any
constituted a waiver.

Failure to Object to the Transfer of Venue to the 14th JDC

The trial court found that since Honeywell did not object to the case being
transferred from the 38th JDC to the 14th JDC at the time of transfer, it waived its
objection. However, as Honeywell points out, the basis for its objection to venue in
the 14th JDC did not arise until the Plaintiffs voluntarily dismissed Moffitt from the
case. At the time of transfer to the 14th JDC, Moffitt was a Defendant; therefore, the
14th JDC was an appropriate venue. Thus, at that time, Honeywell had no valid basis
on which to object to venue.

Filing a Summary Judgment Motion in the 14th JDC

Likewise, when Honeywell filed its motion for summary judgment, Moffitt was
still a Defendant; therefore, Honeywell had no valid basis to object to venue in the 14th
JDC. The 14th JDC dismissed Moffitt from the case on April 29, 2002, providing
Honeywell with a basis for objecting to venue.8 Thus, only actions Honeywell took
after this date are relevant to determining whether it waived its objection to venue.9

Engaging in Discovery While Suit Was Pending in the 14th JDC

After Moffitt was dismissed from the case, Honeywell responded to certain
discovery requests with a written stipulation sent to all counsel. Plaintiffs contend
that, in doing so, Honeywell waived its objection to venue, even though the stipulation
was not filed in the record at that time. However, Honeywell filed this motion to
transfer venue on October 4, 2002. It conveyed the stipulation to counsel on October
22, 2002, while the motion was pending.

8
See Durio v. Robert E. Lee, Inc., 00-1314 (La.App. 4 Cir. 9/15/00), 774 So.2d
181, writ denied, 00-2839 (La. 12/8/00), 776 So.2d 462.
9
See Id. See also Cheramie v. Acadian Ambulance Serv., Inc., 95-38 (La.App.
1 Cir. 10/6/95), 671 So.2d 489.

7

Our supreme court has found that conducting discovery, even when it is filed
in the record (which was not done here), does not waive an objection to venue if the
exception is pending at the time. It reasoned:

There is a useful purpose (judicial efficiency) in the requirement that all
declinatory and dilatory exceptions be filed prior to answer or general
appearance, but there is no useful purpose in judicially extending this
requirement to constitute a waiver when the general appearance is made
after the declinatory exception has been filed. Our conclusion that the
subsequent general appearance, before trial of the exception, does not
constitute a waiver of the pending exception is consistent with the
intermediate court's conclusion (with which we agree) that the
subsequent (or simultaneous) filing of an answer, before trial of the
exception, does not waive the pending exception.10

Likewise, we find that this same reasoning applies in the instant case in which
the motion to transfer venue was pending at the time of Honeywell’s actions.
Accordingly, we find that Honeywell did not waive its objection to venue in the 14th
JDC, and the trial court should have granted its motion to transfer the case to the 19th
JDC for East Baton Rouge Parish.

CONCLUSION

We reverse the trial court’s ruling, which found that the 14th JDC remains a
proper venue in the instant case, remand to the 14th JDC, and order transfer of the case
to the 19th JDC. We cast all costs of this appeal on the Plaintiffs/Appellees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

10
Bickham v. Sub Sea Int’l Inc., 617 So.2d 483, 484 (La.1993).

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