Kenny Ray Juneau v. State of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-1653

KENNY RAY JUNEAU

VERSUS

STATE OF LOUISIANA, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2004-6558-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

AFFIRMED.

James Earl Calhoun
Assistant Attorney General
P. O. Box 1710
Alexandria, LA 71309
(318) 487-5944
Counsel for Defendant/Appellant:
State of LA, Thru The Department of Public Safety & Corrections
Kirk LaCour

Jerold Edward Knoll
The Knoll Law Firm
P. O. Box 426
Marksville, La 71351
(318) 253-6200
Counsel for Plaintiff/Appellee:
Kenny Ray Juneau

Laurel Irene White
Assistant Attorney General
P. O. Box 1710
Alexandria, LA 71309
(318) 487-5944
Counsel for Defendant/Appellant:
State of LA, Thru The DOTD
Kirk Lacour

SAUNDERS, Judge.

An employee was injured on the job by a fellow employee through an alleged

intentional act. The employee brought suit against the defendants in Avoyelles Parish

where he and the fellow employee were domiciled. The defendants consisted of the

plaintiff employee’s fellow employee and their employer, the State of Louisiana,

through the Department of Public Safety and Corrections.

The defendants filed an Exception of Improper Venue, arguing that West

Feliciana Parish, where the cause of action arose, or East Baton Rouge Parish, the

judicial district where the state capitol is located, were the only two venues that

would be proper for the plaintiff to bring forth his suit. The trial court denied the

defendants’ exception.

The defendants then applied for supervisory writs on this issue to this appellate

court, which were denied based upon a finding that there was no error in the trial

court’s ruling. Next, the defendants applied for supervisory writs to the Louisiana

Supreme Court on the same issue, and that application was also denied.

After a partial summary judgment and a jury trial on quantum, the plaintiff was

awarded damages for his injuries. The defendants appeal the judgment asserting that

Avoyelles Parish was an improper venue for the trial. We choose to apply the law of

the case doctrine and refuse to rehear the argument on venue previously submitted by

the defendants. We affirm the trial court’s denial of the defendants’ Exception of

Improper Venue and the resulting judgment.

FACTS AND PROCEDURAL HISTORY:

On February 20, 2004, Kenny Ray Juneau (hereinafter “Juneau”) was injured

in the course and scope of his employment with Angola State Penitentiary in West

Feliciana Parish. He filed suit in District Court in Avoyelles Parish against the State

of Louisiana, through the Department of Public Safety and Corrections (hereinafter

“the State”) and Juneau’s fellow employee, Kirk LaCour (hereinafter “LaCour”; the

State and LaCour collectively hereinafter “the defendants”). LaCour was a

domiciliary of Avoyelles Parish.

The defendants filed an Exception of Improper Venue which was denied by the

Avoyelles Parish District Court. Writs were taken to and denied by the Third Circuit

Appellate Court and the Louisiana Supreme Court on the trial court’s decision to

deny the defendants’ exception.

The Avoyelles Parish District Court ruled that it had jurisdiction and that

Juneau’s case was not a workers’ compensation matter as he was injured through the

intentional acts of LaCour. The trial court granted Juneau’s motion for partial

summary judgment. A trial was held before an Avoyelles Parish jury on the issue of

quantum only. Juneau was awarded a judgment totaling $669,500.00 against the

defendants.

The defendants have appealed the trial court’s judgment on the sole issue of its

denial of their Exception of Improper Venue. Applying the law of the case doctrine,

we refuse to rehear this argument and, therefore, affirm the trial court’s denial of the

defendants’ exception and the resulting judgment.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in denying the exception of improper venue filed by the
defendants?

ASSIGNMENT OF ERROR #1:

The defendants argue that the trial court erred in denying their exception of

improper venue. They base their argument upon the contention that the trial court

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erroneously interpreted La.R.S. 13:5104(A). We apply the discretionary law of the

case doctrine and refuse to rehear this argument.

PRIOR JURISPRUDENCE:

The statute at issue in this case, La.R.S. 13:5104(A), states:

All suits filed against the state of Louisiana or any state agency may be
instituted before the district court of the judicial district in which the
state capitol is located or in the district court having jurisdiction in the
parish in which the cause of action arises. (Emphasis added).

Because the legislature chose to use the word “may” in the statute as opposed

of its use of the word “shall” as in La.R.S. 13:5104(B), courts in this state have

interpreted La.R.S. 13:5104(A) as a permissive venue statute and La.R.S. 13:5104(B)

as a mandatory venue statute. Louisiana Revised Statute 13:5104(B) states as follows:

All suits filed against a political subdivision of the state. . . shall be
instituted before the district court of the judicial district in which the
political subdivision is located or in the district court having jurisdiction
in the parish in which the cause of action arises. (Emphasis added).

Prior to Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-

1104 (La. 1/17/07), 947 So.2d 15, the law in this circuit, as well as in the first and

second circuit, was that La.R.S. 13:5104(A) did not preclude the application of

La.Code Civ.P. arts. 42 and 71 through 85 to find a venue proper for the State of

Louisiana or its agencies. In Taylor v. Clement, 02-561 (La.App. 3 Cir. 12/4/02), 832

So.2d 1089, writ denied, 03-38 (La. 3/28/03), 840 So.2d 571, this court found no

error in using La.Code Civ.P. arts. 73 and 74 to find that Calcasieu Parish was a

proper venue for an action against the State, through the legislatively-created

Patient’s Compensation Fund administered by the Louisiana Patients’ Compensation

Fund Oversight Board.

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Another Third Circuit case discussing whether the general venue statutes could

be applied to the State is V.C. Nora, Jr. Bldg. & Remodeling, Inc. v. State through

Dept. of Transp. and Development, 93-1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466.

In the V.C. Nora case, La.Code Civ.P. art. 76.1 was used to find that Natchitoches

Parish was a proper venue for the State of Louisiana, through the Department of

Transportation and Development.

The First Circuit Court of Appeal held that “[t]he State’s argument, that La.R.S.

5104(A) contains a mandatory venue provision is disingenuous, and without merit;”

and found that Tangipahoa was a proper venue for an action against the State of

Louisiana, through the Department of Transportation and Development. James v.

State Farm Mut. Auto. Ins. Co., 597 So.2d 555(La.App. 1 Cir.1992).

Moreover, under facts similar to the case at bar, the Second Circuit Court of

Appeal found a proper venue under La.Code Civ.P. art. 73 for the State of Louisiana,

through the Department of Social Services, in Williams v. State ex. rel. Dept. of Social

Services, 35,928 (La.App. 2 Cir. 4/3/02), 813 So.2d 1206 writ denied, 02-1279 (La.

8/30/02), 823 So.2d 955. In Williams, Caddo Parish was deemed a proper venue

under La.Code Civ.P. art 73 because the State’s co-defendant, a foster guardian, was

domiciled there.

COLVIN V. LA PATIENT’S COMPENSATION FUND OVERSIGHT BOARD:

The Louisiana Supreme Court has recently rendered Colvin v. Louisiana

Patient’s Compensation Fund Oversight Bd. In Colvin, medical malpractice plaintiffs

brought two suits against a state agency, the Patient’s Compensation Fund Oversight

Board, in Bossier Parish where both plaintiffs were domiciled. The basis of their suits

was a declaratory judgment and monetary relief for negligent adjustment and

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administration of underlying medical malpractice claims. The trial court granted the

defendant’s exception of improper venue. The Court of Appeal reversed and

remanded. Our Louisiana Supreme Court granted writs and found that Bossier Parish

was an improper venue and that the only venue proper for these suits was East Baton

Rouge Parish as provided by La.R.S. 13:5104(A) The Colvin court expressly

abrogated the established jurisprudence above that allowed for application of the

general venue statutes, La.Code Civ.P. arts 42 and 71 through 85, to the State or one

of its agencies.

RETROACTIVITY OF THE COLVIN CASE:

Our Louisiana Supreme Court was silent in Colvin as to whether its effects

should be applied retroactively. Because of the Louisiana Supreme Court’s silence,

should we attempt to determine whether Colvin is to be applied retroactively, we are

to use the factors the Louisiana Supreme Court set out in Lovell v. Lovell, 378 So.2d

418, 421-422 (La.1979):

In determining whether or not our decision should be given retroactive
effect, three factors should be considered: (1) the decision to be applied
nonretroactively must establish a new principle of law, either by
overruling clear past precedent on which litigants may have relied, or by
deciding an issue of first impression whose resolution was not clearly
foreshadowed; (2) the merits and demerits must be weighed in each case
by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective application will further or retard its
operation; and (3) the inequity imposed by retroactive application must
be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349,
30 L.Ed.2d. 296 (1971).

Rather than making a determination as to the retroactivity of Colvin, Juneau

argues that we should apply the discretionary law of the case doctrine to refuse to

rehear the defendants’ argument regarding the proper venue. His argument for

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application of the law of the case doctrine is based upon essential fairness to all

parties because he argues that having to retry his case would be a travesty of justice.

LAW OF THE CASE DOCTRINE:

Justice Tate of the Louisiana Supreme Court in Petition of Sewerage & Water

Bd. of New Orleans, 278 So.2d 81, 83 (La.1973), wrote:

The law of the case principle relates to (a) the binding force of trial court
rulings during later stages of the trial, (b) the conclusive effects of
appellate rulings at the trial on remand, and (c) the rule that an appellate
court will ordinarily not reconsider its own rulings of law on a
subsequent appeal in the same case. Among reasons assigned for
application of the policy are: the avoidance of indefinite relitigation of
the same issue; the desirability of consistency of the result in the same
litigation; and the efficiency, and the essential fairness to both sides, of
affording a single opportunity for the argument and decision of the
matter at issue.

Nevertheless, the law of the case principle is applied merely as a
discretionary guide: Argument is barred where there is merely doubt as
to the correctness of the former ruling, but not in cases of palpable
former error or so mechanically as to accomplish manifest injustice.
(Emphasis added).

This court, when discussing the law of the case doctrine in Burkett v. UDS

Management Corp., 99-82 p.5 (La.App. 3 Cir. 6/2/99), 741 So.2d 838, 896, writ

denied 99-1970 (La. 10/15/99), 748 So.2d 1150, quoted the First Circuit Court of

Appeal as follows, “‘[T]he [law of the case] doctrine is discretionary and should not

be applied where it would effectuate an obvious injustice or where the former

appellate decision was clearly erroneous.’ Trans Louisiana Gas Co. v. Louisiana Ins.

Guar. Ass’n., 96-1477 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896.”

Justice Tate, then of the Third Circuit Appellate Court, in Keller v. Thompson,

134 So.2d 395 (La.App 3 Cir. 1961), cert. denied (1962) quoted the following

comment in Developments in Law - Res Judicata, 65 Harv.L.Rev. 818, 820 (1952):

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[L]aw of the case is limited to rulings of law and to the framework of a
single case. Formerly applied as strictly as res judicata, even where an
intervening case involving other parties had overruled the prior decision,
law of the case now serves as a discretionary guide. (Emphasis added).

We agree with Juneau that we do have available to us, due to the unique timing

and procedural history associated with this particular case, the option of applying the

law of the case doctrine. In the case before us there has already been a denial of an

exception of improper venue, two denial of writ applications on the issue of improper

venue, one by this court in which we stated that we found no error in the trial court’s

findings, and a trial on the merits. The facts and procedural history here are

distinguishable from a case simply pending at the trial level or even a case before us

on appeal where this particular issue had not been addressed. As such, we will

determine whether we should apply the law of the case doctrine to refuse to rehear the

defendants’ argument or whether we should apply Colvin retroactively.

RETROACTIVE APPLICATION OF COLVIN v. LAW OF THE CASE

The analysis used to determine whether to apply decision retroactively and the

analysis for application of the law of the case doctrine to a case before a court both

have a basis in equity. One of the three factors to consider set out in Lovell, 378 So.2d

at 422, is “the inequity imposed by retroactive application.” Similarly, one of the

reasons for application of the law of the case doctrine is “the essential fairness to both

sides.” Id. at 421. Clearly, we are directed to take into account the equity of our ruling

on both parties regardless of which analysis we choose to apply.

Where the two legal concepts differ is in the scope of effect. A determination

of whether a case is to have retroactive application is very broad in scope because it

is a determination that a particular case will have an effect on all pending cases.

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Contrarily, a determination of whether to apply the law of the case doctrine has a

scope limited to this particular case.

We will now look to the equities of applying the law of the case doctrine to the

case at bar versus applying Colvin retroactively. In order for us to determine which

analysis to use, we will analyze the burden on the defendants should we refuse to

rehear their argument based upon the law of the case doctrine versus the burden on

Juneau of having the judgment vacated and having to start his case anew in a different

venue if we were to apply Colvin retroactively.

BURDEN ON THE DEFENDANTS IN APPLYING THE LAW OF THE CASE:

In order for us to determine what burden the defendants would endure should

we refuse to rehear their arguments on the proper interpretation of La.R.S. 13:

5104(A), we first have to consider the prejudicial effects the defendants suffered by

having to litigate in Avoyelles Parish. While Avoyelles Parish would not be a proper

venue had the case been filed post-Colvin, we find that for the parties to have litigated

in Avoyelles Parish rather than West Feliciana or East Baton Rouge Parish is not an

error that rises to a level where it produced any appreciable prejudicial effect on the

defendants. On the contrary, the claimed impropriety is a technical one which only

arose due to an interpretation of a legislative mandate that occurred late in the judicial

process. This is not a situation where the defendants were asked to litigate in a forum

where neither of them has any presence. Rather, both defendants, LaCour and the

State of Louisiana, clearly have a presence in Avoyelles Parish.

Moreover, the only assignment of error raised by the defendants relates to the

propriety of the venue in Avoyelles Parish. There is no assignment of error as to the

judgment eventually reached by the judge and jury and, therefore, no argument that

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the judgement, or anything that took place in the trial, was improper. This leads us to

the inescapable conclusion that the burden, if any, on the defendants was minimal.

BURDEN ON JUNEAU SHOULD COLVIN BE APPLIED RETROACTIVELY:

While the burden on the defendants of having to litigate in Avoyelles Parish

is minimal, we find that the burden on Juneau to have to begin his case anew in a

different venue is great. Juneau has already successfully proven by a preponderance

of the evidence that the defendants were at fault for causing his injuries. There is, at

minimum, some indicia of Juneau having vested rights as the trial established, by a

partial summary judgment and a trial by jury on quantum only, that Juneau is entitled

to a $669,500.00 recovery from the defendants. To require Juneau to have to win his

case again is certainly a serious burden. Moreover, the expenses associated with

conducting a trial are substantial. If we were to now find that venue was improper in

Avoyelles Parish in light of Colvin, both Juneau and the defendants would again have

to endure that expense.

Not only would a finding of improper venue be a heavy burden on Juneau, it

would also be a violation of traditional notions of fairness to Juneau. If we were to

find that Avoyelles Parish is now an improper forum based upon the retroactive

application of Colvin, we would be allowing the defendants a second chance to have

their day in court. Surely if the trial court were to have found that the defendants had

no fault under the facts of the case, this case would not be before us. Now, rather than

have to abide by a judgment reached in an otherwise fair and equitable trial, the

defendants are asking that we vacate that judgment and give them a second chance

to be heard. Juneau, in effect, would have to win his case twice while the defendants

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would only have to defend themselves successfully once. Such a result does not rest

comfortably with traditional notions of fair play and substantial justice.

APPLICATION OF THE LAW OF THE CASE DOCTRINE:

We have found that the burden on the defendants is minimal, while the impact

on Juneau is great. Because we find that there is a much greater impact on Juneau if

we were to find that the trial court erroneously denied the defendants’ Exception of

Improper Venue, we instead choose to use the law of the case doctrine to refuse to

rehear the argument put forth by the defendants. We find that the application of the

law of the case doctrine to the case as bar would not “effectuate an obvious injustice”

to the defendants. Instead, we find that to give the defendants a second day in court

by applying Colvin retroactively would be an considerable injustice to Juneau.

The application of the law of the case doctrine is proper here because the same

parties are making the same arguments regarding the same principles of law. The

defendants’ argument in the case at bar is identical to the argument previously heard

by this court and our Louisiana Supreme Court in the defendants’ writ applications.

The argument put forth by the defendants based upon La.R.S. 13:5104(A) has been

decided to lack the necessary weight to overrule the trial court’s denial of their

exception and was not reversed by this court or the Louisiana Supreme Court.

We are very mindful of Colvin and feel that our application of the law of the

case doctrine to the case at bar is in no way inconsistent with the Supreme Court’s

holding in Colvin. By refusing to rehear the defendants’ argument, we are in no way

casting judgment upon whether La.R.S. 13:5104(A) should be interpreted as

mandatory. Instead, we are denying the defendants the opportunity to have their

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argument heard for the second time on the appellate level based on fundamental

fairness to the parties.

CONCLUSION:

The defendants raised one assignment of error, asserting that the trial court

committed legal error in denying their Exception of Improper Venue. We choose to

exercise our discretion and apply the law of the case doctrine to refuse to rehear the

argument put forth by the defendants. As such, we affirm the trial court’s denial of

the defendants’ exception of improper venue and the resulting judgment for Juneau

against the defendants. We assess all costs of this appeal to the defendants.

AFFIRMED.

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