Trever Bertrand v. Howard Desselle,luke B. Aguillard State of Louisiana Thru the Dept. of Pub. Safety & State Farm Mutual Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 22-236

TREVER BERTRAND

VERSUS

HOWARD DESSELLE, LUKE B. AGUILLARD,
STATE OF LOUISIANA THRU THE DEPT.
OF PUB. SAFETY, AND STATE FARM MUTUAL INSURANCE CO.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 202110490
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

**********

Court composed of Chief Judge Sylvia R. Cooks, Charles G. Fitzgerald, and Gary
J. Ortego, Judges.

REVERSED AND REMANDED, WITH INSTRUCTIONS.

Jack Derrick Miller
Attorney at Law
P. O. Drawer 1650
Crowley, LA 70526
(337) 788-0768
COUNSEL FOR PLAINTIFF/APPELLANT:
Trever Bertrand

Jeannie C. Prudhomme
Asst. Attorney General
556 Jefferson St., 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana thru TheDept. of Pub. Saf. & Corr
Howard Desselle

Joseph Todd Puhekker
Leah B. Guilbeau & Assoc.
4023 Ambassador Caffery #100
Lafayette, LA 70503
(337) 988-7240
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Insurance Co.
Luke B. Aguillard

Cranay D. Murphy
La Dept of Justice, Asst AG
556 Jefferson, 4th floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana thru TheDept. of Pub. Saf. & Corr
Howard Desselle

ORTEGO, Judge.

In this motor vehicle accident case, Plaintiff appeals the trial court’s judgment

granting Defendants’ exception of improper venue. For the following reasons, we

find the judgment of the trial court to be a final, appealable judgment, and further

find the trial court abused its discretion in dismissing the Plaintiff’s suit, remanding

this matter, with instructions to transfer the case to the proper venue for further

proceedings.

FACTS AND PROCEDURAL HISTORY

On August 25, 2020, Trever Bertrand (Bertrand) was a guest passenger in a

vehicle driven by Luke Aguillard (Aguillard). On that date, in Eunice, St. Landry

Parish, Louisiana, the Aguillard vehicle was involved in a motor vehicle collision

with a vehicle driven by Howard Desselle (Desselle). At the time of the accident,

Desselle was an employee of the State of Louisiana (the State), working in the

Department of Public Safety. Aguillard’s vehicle was insured by State Farm Mutual

Automobile Insurance Company (State Farm).

On July 1, 2021, Bertrand filed suit against Desselle, the State, as Desselle’s

employer, Aguillard, and State Farm (hereinafter, Desselle and the State are

collectively referred to as “Appellees”). The suit was filed in the 15th Judicial

District Court in Acadia Parish. In response, Appellees filed several exceptions,

including the declinatory exception of improper venue.

Thereafter, Bertrand amended his petition, and Appellees refiled the

exceptions. A hearing date of December 6, 2021 was set for the exceptions. On

November 17, 2021, Bertrand filed a second amendment to his petition wherein he

deleted any claims against the State. No exceptions were filed to the second

amended petition.
1

The exceptions were heard on December 6, 2021. On January 3, 2022,

judgment was signed granting Appellees’ exception of improper venue and

dismissing, without prejudice, “the matter of Trever Bertrand v. State of Louisiana,

through the Department of Public Safety and Corrections, et al.”

On January 7, 2022, Bertrand filed a motion for new trial. The trial court

denied the motion on January 28, 2022.

On February 16, 2022, Bertrand filed a notice of intention to apply for

supervisory writs regarding the trial court’s judgment and denial of his motion for a

new trial. Additionally, on February 17, 2022, Bertrand filed a motion for appeal

regarding the two judgments. While Bertrand was waiting on the return date for the

writ application, the trial court granted Bertrand’s motion for this appeal now before

us. In that appeal, Bertrand alleges five assignments of error.

ASSIGNMENTS OF ERROR

1. The trial court committed error by relying only upon the initial
and first amended and/or supplemental petitions filed by
Bertrand in determining the validity of the exceptions filed by
Appellees, while rendering irrelevant the Second Amended
and/or Supplemental Petition for Damages filed subsequent to
the exceptions of Appellees and the State of Louisiana, but prior
to the hearing on those exceptions.

2. The trial court committed error by considering and granting
Exceptions of Improper Venue in favor of the State of Louisiana,
who was no longer a party to the proceedings.

3. The trial court committed error by dismissing “the Matter of
Trever Bertrand vs. State of Louisiana, through the Department
of Public Safety and Corrections, et al,” irrespective of whether
it was with prejudice or without prejudice.

4. The trial court committed error by denying an Application for
New Trial, especially without granting a hearing.

5. Alternatively, the trial court committed error by failing to
transfer the proceedings as opposed to dismissal.

2

LAW AND DISCUSSION

I. Standard of Review

An appellate court reviews the factual findings of a trial court under the

manifest error-clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840

(La.1989). The trial court’s legal conclusions on questions of law, however, are

reviewed de novo. Brunson v. Crown Brake, LLC, 18-994 (La.App. 3 Cir. 6/19/19),

275 So.3d 432, writ denied, 19-1184 (La. 10/15/19), 280 So.3d 613.

Venue presents a question of law. Arc Industries, L.L.C. v. Nungesser, 06-

1353 (La.App. 3 Cir. 11/21/07), 970 So.2d 690. Such questions of law are reviewed

by an appellate court de novo. Id.

The trial court, in deciding a declinatory exception of improper venue, is

afforded discretion in choosing to dismiss the action or transfer it to a proper venue

in the interest of justice. See La.Code Civ.P. art. 121 and La.Code Civ.P. art. 932(B).

Appellate courts review this decision under the abuse of discretion standard of

review. Kirk v. Stafford, 21-56 (La.App. 4 Cir. 5/12/21), 320 So.3d 1213.

II. Preliminary Matter - Appellate Jurisdiction

Appellees assert in brief that this court lacks jurisdiction to review this matter

via appeal. We address this issue first, as a finding that this court lacks jurisdiction

would necessitate dismissal. Appellees raise no assignment of error nor file any

formal motion with requested relief.

“The rule is long established that a judgment of dismissal without prejudice is

a final judgment which may be appealed.” Butler v. Flint-Goodridge Hosp. of

Dillard U., 346 So.2d 1131 (La.App. 4 Cir.1977); Rapides Savings & Loan

3

Association v. Lakeview Development Corporation, 326 So.2d 511 (La.App. 3

Cir.1976).” Leger v. Delahoussaye, 464 So.2d 1, 3 (La.App. 3 Cir.1984). See People

of the Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968).

Here, the trial court’s judgment dismissed Bertrand’s suit, without prejudice.

Accordingly, the trial court’s judgment is a final, appealable judgment.

III. Improper Venue- Dismissal v. Transfer

As an alternative to his first four assignments of error, Bertrand asserts that

the trial court committed error by failing to transfer the proceedings, as opposed to

dismissal. We will address this issue first, as a finding that this matter was

improperly dismissed and warrants transferal to a proper venue pretermits the

remaining issues raised by Bertrand.

Louisiana jurisprudence and law, specifically, La.Code Civ.P. art. 121

provides,

“When an action is brought in a court of improper venue, the court may
dismiss the action, or in the interest of justice transfer it to a court of proper
venue.”

Here, a review of the record shows that Acadia Parish was the improper venue

for the action filed by the plaintiff. In fact, Bertrand’s memorandum, addressing

Appellees’ exception of improper venue, expressed amenability to transferring his

suit to St. Landry Parish, thus conceding that Acadia Parish was an improper venue.

Thus, we sustain the finding that venue was improper.

Having sustained that finding, we next look to the trial court’s decision to

dismiss, without prejudice, this action instead of transfer of action to a proper venue.

4

The Louisiana Supreme Court, in Marler v. Petty, 94-1851, p. 6 (La. 4/10/95),

653 So.2d 1167, 1171, stated the following (citations omitted) (emphasis added):

[La.Code Civ.P. arts.] 121 and 932 provide, in pertinent part, that
if an action has been brought in a court of improper venue, the court
may transfer the action to a proper court, in the interest of justice. The
jurisprudential rule has evolved that when a plaintiff does not
knowingly file suit in the wrong venue, transfer to the correct venue is
proper. Said another way, when the plaintiff does not have sufficient
knowledge to ascertain the correct venue or acts upon incorrect
knowledge and erroneously files suit in the wrong venue, the case
should be transferred to a court of proper venue pursuant to [La.Code
Civ.P. art.] 121. However, when the plaintiff knowingly files suit in the
wrong venue, dismissal is proper.

In Marler, an inmate claimed he was injured while incarcerated in Washington

Parish. Plaintiff filed a tort suit in the 22nd Judicial District Court, Washington

Parish. The trial court found that the suit was filed in an improper venue and chose

to dismiss the suit rather than transfer it to the proper venue. The appellate court

affirmed. The supreme court cited La.Code Civ.P. arts. 121 and 932 in finding that

the trial court should have transferred the suit to the proper venue, the 19th Judicial

District Court.

Our reading of Marler leaves it to the discretion of courts to determine if there

is any fact or facts that necessitate a finding that “plaintiff knowingly file[d] suit in

the wrong venue.” Marler, 653 So.2d at 1171. In stating that dismissal is proper

when “plaintiff knowingly files suit in the wrong venue.”, the Marler court cited

three fourth circuit cases: Bank of New Orleans and Trust Company v. Phillips, 415

So.2d 973 (La.App. 4 Cir.1982); Habig v. Popeye’s, Inc., 553 So.2d 963 (La.App. 4

Cir.1989); Phillips Petroleum Company v. OKC Limited Partnership, 582 So.2d 351

(La.App. 4 Cir.1991).

5

In Bank of New Orleans and Trust Co., 415 So.2d at 975, the fourth circuit

deemed dismissal under Article 121 proper after finding the suits filed in the

improper venue both intentionally and knowledgeably to harass and hinder a party’s

access to the court. The Bank of New Orleans and Trust Co. court found that the

plaintiff’s actions were “tantamount to an abuse of process.” Clearly, under Bank of

New Orleans and Trust Co., a dismissal is proper when a plaintiff has actual

knowledge of a venue’s impropriety plus the intent to harass or to hinder a party’s

access to courts.

The fourth circuit revisited Bank of New Orleans and Trust Co. in Habig, 553

So.2d at 967. In Habig, the fourth circuit added the requirement that a party seeking

dismissal for improper venue carry the burden to prove a plaintiff “knowingly filed

a suit in the wrong venue.” However, no relevant facts were discussed regarding

when a case is properly dismissed or transferred for its filing in an improper venue.

Finally, in Phillips Petroleum Co. the fourth circuit cited Habig. In Phillips

Petroleum Co., the court found that the party bringing the improper venue exception

failed to carry its burden to prove that the plaintiff “knowingly filed suit in the wrong

venue.” As such, the Phillips Petroleum court deemed justice best served by

transferring the action. Again, no relevant facts were discussed regarding when a

case is properly dismissed or transferred.

In Lightfoot v. David Wade Correctional Center, 34,391 (La.App. 2 Cir.

12/22/00), 775 So.2d 1211, a case subsequent to Marler, the second circuit found

that a plaintiff being “aware” of venue issues prior to filing suit equated to

“knowingly filing suit in the wrong venue.” Id. The Lightfoot court stated, “[t]he

record in this instance demonstrates that the appellant was aware of the venue issues

involved in filing his suit in the Second Judicial District Court.” Thereafter, the
6

second circuit affirmed a judgment dismissing the plaintiff’s suit rather than

transferring it to the proper venue. This language tends to indicate that actual

knowledge of filing suit in an improper venue can make dismissal of the case proper.

However, the Lightfoot court did not elaborate on what other factors, if any, it found

relevant in affirming the dismissal of the plaintiff’s suit such as whether substantive

rights could be lost by dismissing the case or whether the plaintiff had unclean hands

in some manner.

In the case before us, Appellees assert that Bertrand “knowingly filed suit in

the wrong venue,” per Marler, because Bertrand alleged in his petition for damages

that Desselle was in the course and scope of his employment with the State at the

time of the accident, and that the accident occurred in St. Landry Parish. According

to Appellees, because Bertrand alleged these two facts in his petition, he necessarily

can be imputed with the knowledge that La.R.S. 13:5104(A) dictates venue is proper

in the 19th Judicial District Court, “the judicial district in which the state capitol is

located,” or in the 27th Judicial District Court, “the district court having jurisdiction

in the parish in which the cause of action arises.” Appellees state, in brief, that

Bertrand’s actual knowledge of La.R.S. 13:5104(A) is irrelevant, as ignorance of the

law is no excuse for noncompliance citing Louisiana Civil Code article 5.

The phrase, “knowingly filed suit in the wrong venue,” as used in Marler does

not require that a plaintiff endure unjust consequences for want of absolute

knowledge of all applicable laws. In essence, Appellees request this court to extend

“knowingly filed suit in the wrong venue” to include those plaintiffs that should

have, or even could have, known that the suit was going to be filed in an improper

venue. We decline to do so.

7

In looking at the applicable jurisprudence wherein a plaintiff was deemed to

“knowingly fil[e] suit in the wrong venue,” generally, the plaintiff had actual

knowledge of filing suit in an improper venue, such as in Lightfoot, 775 So.2d 1211,

or had actual knowledge plus the intent to abuse improper filings to gain an

advantage over the opposing party, as in Bank of New Orleans and Trust Co., 415

So.2d at 975.

Here, Appellees present no evidence, nor is there any in the record, that

Bertrand had actual knowledge that he was filing his case in an improper venue, as

was the case in both Lightfoot and Bank of New Orleans and Trust Co. Contrarily,

Bertrand, in brief, candidly admits that his selection of Acadia Parish was “an honest

mistake,” and he acted upon same based on his incorrect belief that La.Code Civ.P.

art. 73 allowed his suit to be brought in the venue where one of the alleged joint

and/or solidary obligors resides. Bertrand alleged in his petition for damages that

all defendants were joint and/or solidary obligors, and that Aguillard’s address was

in Acadia Parish.

We note that Bertrand’s memorandum, addressing Appellees’ exception of

improper venue, expressed amenability to transferring his suit to St. Landry Parish.

Clearly, at that point in time, Bertrand acquired actual knowledge of venue issues

with his suit per La.R.S. 13:5104(A). This memorandum was filed on September

29, 2021, over two months prior to the trial court’s hearing that resulted in the

dismissal of Bertrand’s entire case.

Given the above, we find that Appellees failed to carry their burden to prove

that Bertrand “knowingly file[d] suit in an improper venue.” Thus, dismissal of

Bertrand’s suit by the trial court was not proper under Marler.

8

Next, we will look to whether the trial court’s decision to dismiss this action

was an abuse of discretion. We find, under the facts of this case, that the trial court

abused its discretion.

Louisiana Code of Civil Procedure Article 121 provides, “[w]hen an action is

brought in a court of improper venue, the court may dismiss the action, or in the

interest of justice transfer it to a court of proper venue.” Transfer is “in the interest

of justice” when “it prevents substantive rights being lost, without a determination

upon the merits, by becoming time-barred under prescription or peremption despite

having been filed and served timely albeit in the improper venue.” Blow v.

OneBeacon America Ins. Co., 16-301, pp. 21-22 (La.App. 4 Cir. 4/20/16), 193 So.3d

244, 257, writ denied, 16-954 (La. 9/6/16), 204 So.3d 1002 citing Garrison v. St.

Charles Gen. Hosp., 02-1430 (La.App. 4 Cir. 9/17/03), 857 So.2d 1092.

In the matter before us, on January 3, 2022, the trial court signed a judgment

dismissing Bertrand’s suit stating, “IT IS FURTHER ORDERED, ADJUDGED,

AND DECREED that the matter of Trever Bertrand v. State of Louisiana, through

the Department of Public Safety and Corrections, et al. . . . is dismissed, without

prejudice.” The prescriptive period applicable to Bertrand’s case is the one-year

liberative prescription for delictual actions, commencing the day the injury or

damage is sustained. La.Civ.Code art. 3492. Here, the date of the vehicle accident

at issue is August 25, 2020. It is clear that dismissal of Bertrand’s entire suit renders

any suit he should file in a proper venue barred by prescription, regardless of its

designation as being without prejudice. This result would cause Bertrand to lose a

substantive right, via prescription, and irreparable harm, without having his day in

9

court. As such, we find that the trial court abused its discretion in dismissing

Bertrand’s suit, as the interest of justice dictates that this suit be transferred to a

proper venue.

CONCLUSION

Trever Bertrand appeals, raising five assignments of error. We find that this

judgment of dismissal, without prejudice, by the trial court is a final, appealable

judgment. Further, we find that the trial court abused its discretion in dismissing

Trever Bertrand’s action, without prejudice, rather than transferring the proceedings

to a proper venue. There is no evidence in the record that Trever Bertrand knowingly

filed his suit in an improper venue. Dismissal of Trever Bertrand’s suit was an abuse

of the trial court’s discretion, as the interest of justice mandates transferring his suit

to a proper venue.

Accordingly, we reverse the trial court’s judgment dismissing the suit of

Trever Bertrand, remand this matter, with instructions that the case be transferred to

the 27th Judicial District Court, in St. Landry Parish, Louisiana, a proper venue, in

accordance with this judgment.

Costs of these proceedings in the amount of $1,021.00, are equally assessed

against the State of Louisiana, through the Department of Public Safety and

Corrections, and Howard Desselle.

REVERSED AND REMANDED, WITH INSTRUCTIONS.

10