Arc Industries, L.L.C. v. William H. Nungesser

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 06-1353

ARC INDUSTRIES, L.L.C.

VERSUS

WILLIAM H. NUNGESSER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2006-3028-I
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter,
Judges.

WRIT DENIED.

Henry Camille Perret, Jr.
Perret, Doise
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Plaintiff/Respondent:
ARC Industries, L.L.C.

George Pivach, II
Timothy Thriffiley
Pivach, Pivach, Hufft
P. O. Box 7125
Belle Chasse, LA 70037
(504) 394-1870
Counsel for Defendant/Applicant:
William H. Nungesser

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

William H. Nungesser (hereinafter “Mr. Nungesser”), a resident and

domiciliary of Plaquemines Parish, negotiated to perform consulting services for Arc

Industries, L.L.C. (hereinafter “Arc”), a limited liability company domiciled in Iberia

Parish and conducting business in Lafayette Parish. To this end, in October 2004,

Mr. Nungesser and the manager of Arc, Michel Mareno (hereinafter “Mr. Mareno”),

entered into a Letter of Interest, intended as a non-binding framework to further the

discussions towards a consulting arrangement. In May 2005, Mr. Nungesser drafted

a Consulting Agreement to memorialize the terms of the parties’ proposed bargain.

The Consulting Agreement, after numerous revisions proposed by Arc, ultimately was

not executed.

Thereafter, Mr. Nungesser contacted Arc and demanded payment for

reimbursement of expenses he allegedly incurred from January 2005 through July

2005, and for commission he allegedly earned during July and August 2005. In

response, a bookkeeping employee of Arc issued payment, without authorization from

Arc, on November 11, 2005. Upon learning of the allegedly erroneous payment, Arc

notified Mr. Nungesser of the mistake and ordered its employee not to make any

future payment unless a binding agreement with Mr. Nungesser was reached.

On June 16, 2006, Arc brought a petition for declaratory judgment before the

Fifteenth Judicial District Court in Lafayette Parish, alleging that Mr. Nungesser

never performed any services for Arc and, as such, praying for the return of its

putatively erroneous payment to Mr. Nungesser. In response, Mr. Nungesser filed an

exception of improper venue, arguing that the parish of Mr. Nungesser’s domicile,

Plaquemines Parish, was the only proper venue for such a suit. After a hearing on

September 25, 2006, Judge Thomas R. Duplantier denied the exception of improper

venue. A judgment to this effect was signed by the trial court on October 4, 2006.

Mr. Nungesser then filed with this court an application for supervisory writs

on October 20, 2006. We denied that writ application on January 22, 2007, stating

that we found no error in the trial court’s ruling.

In February 2007, Mr. Nungesser filed an application for supervisory writs with

the Louisiana Supreme Court. The supreme court granted that writ application on

April 5, 2007, and remanded the instant matter to this court for briefing, argument,

and opinion.

ASSIGNMENT OF ERROR:

1. Did the trial court abuse its discretion and commit manifest error in overruling
Mr. Nungesser’s exception of improper venue?

DISCUSSION:

Mr. Nungesser contends that the trial court erred in overruling his exception

of improper venue. We disagree.

“Venue is a question of law, which is reviewed de novo by the appellate court.”

Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1 Cir. 4/27/05), 915 So.2d

816, 824, writ denied, 05-1390 (La. 1/27/06), 922 So.2d 543 (citing In re Med.

Review Panel Proceedings for the Claim of Tinoco, 03-0272, p. 5 (La.App. 4 Cir.

9/17/03), 858 So.2d 99, 103). “However, the trial court’s factual findings underlying

the decision are reviewed under the manifest error standard of review.” Elliot v.

Amato and Creely, 05-0376, p. 3 (La.App. 1 Cir. 3/29/06), 934 So.2d 779, 781 (citing

Peters v. Alpharetta Spa, L.L.C., 04-0979, p. 3-4 (La.App. 1 Cir. 5/6/05), 915 So.2d

908, 910; Mart v. Hill, 505 So.2d 1120, 1127 (La.1987)).

“Venue means the parish where the action or proceeding may properly be

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brought and tried under the rules regulating the subject.” La.Code Civ.P. art. 41.

The objection to improper venue is raised by a declinatory exception. La.Code.

Civ.P. art. 925. “[A] judgment overruling the declinatory exception raising the

objection of improper venue is an appealable judgment because it is an interlocutory

judgment that may cause irreparable injury.” A & P Boat Rentals, Inc. v. Am. Lloyd’s,

592 So.2d 1361, 1362 (La.App. 1 Cir. 1991) (citing Aetna Ins. Co. v. Naquin, 488

So.2d 950, 952 (La.1986)).

“The general rules of venue are that an action against . . . [a]n individual who

is domiciled in the state shall be brought in the parish of his domicile; or if he resides

but is not domiciled in the state, in the parish of his residence.” La.Code Civ.P. art.

42; see also Hawthorne Oil & Gas Corp. v. Cont’l Oil Co., 377 So.2d 285, 287

(La.1979) (“Article 42 of the Code of Civil Procedure enunciates the general rule of

venue that a person must be sued at his domicile.”). However, “[t]he general rules of

venue provided in Article 42 are subject to the exceptions provided in Articles 71

through 85 and otherwise provided by law.” La.Code Civ.P. art. 43. The Louisiana

Supreme Court discussed the construction of such exceptions in Jordan v. Central

Louisiana Electric Co., 95-1270 (La. 6/23/95), 656 So.2d 988. There, the court

explained:

[T]he alternative, optional venue provisions contained in La.Code Civ.P.
articles 71 through 85 “are an extension, supplement, and legal part of
the provisions of Article 42.” As a result, these alternative venue
provisions are no longer exceptions to Article 42’s “home base” venue
that should be strictly construed, as was formerly required under
Hawthorne Oil and Gas Corp. v. Continental Oil, 377 So.2d 285
(La.1979). Rather, these alternative provisions are part and parcel of the
general venue rule set forth in Article 42.

Id. at 989 (citations omitted).

Thus, unless the circumstances of the instant case fall within some statutory exception

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sufficient to allow Arc to bring suit in Lafayette Parish, Mr. Nungesser’s declinatory

exception of improper venue must be sustained.

Arc asserts that it is authorized to bring suit in Lafayette Parish under the aegis

of the La.Code Civ.P. art. 76.1 venue exception. That article reads, in part: “An

action on a contract may be brought in the parish where the contract was executed or

the parish where any work or service was performed or was to be performed under the

terms of the contract.” La.Code Civ.P. art. 76.1.

By way of counterargument, Mr. Nungesser contends that La.Code Civ.P. art.

76.1 cannot serve as the basis for venue in Lafayette Parish, as the very allegations

contained in Arc’s petition assert that no contract was ever confected between the two

parties. In effect, Mr. Nungesser claims that, absent the existence of a contract

between himself and Arc, the language of La.Code Civ.P. art. 76.1 precludes that

provision from supporting venue.

Arc responds that venue is proper under La.Code Civ.P. art. 76.1, even in the

absence of a contract, so long as there exists a quasi-contract between the two parties.

In support of such contention, Arc cites Tyler v. Haynes, 99-1921 (La.App. 3 Cir.

5/3/00), 760 So.2d 559. There, this court was asked to determine whether La.Code

Civ.P. art. 76.1 could support venue in Grant Parish on the basis of the plaintiff’s

quasi-contractual towage and storage services rendered therein. Answering this

question in the affirmative, we proclaimed: “Our conclusion that a quasi-contract

exists directs us to Louisiana Civil Code [sic] Article 76.1 . . . Accordingly, suit was

properly brought in Grant Parish, the parish where the tractor-trailer rig was towed

and stored and where the cleanup occurred.” Id. at 564; see also Bloomer v. La.

Workers’ Comp. Corp., 99-707, p. 4 (La.App. 1 Cir. 5/12/00), 767 So.2d 712, 715

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(“[W]e find it was not in error for the Plaintiff to bring her case in St. Tammany

Parish if Plaintiff establishes that the contract (quasi-contract) was either executed or

performed in St. Tammany Parish.”). In so holding, this court established the

proposition that La.Code Civ.P. art. 76.1 applies equally both to actions brought on

contracts and to those brought on quasi-contracts.

Arc further argues that, as with Tyler, the case at bar involves a quasi-contract.

Specifically, Arc argues that the instant case involves unjust enrichment.

“Quasi-contracts are willful and lawful acts [that] give rise to obligations

without the concurrence of wills, that is, without the agreement of the persons

involved that is necessary for the formation of a contract.” SAUL LITVINOFF, 5

LOUISIANA CIVIL LAW TREATISE § 1.6, at 10. “Examples . . . of quasi-contracts are:

the management of the affairs of another (negotiorum gestio) and unjust enrichment.”

Corbello v. Iowa Prod., 02-0826, p. 3 (La. 2/25/03), 850 So.2d 686, 712 (Knoll, J.,

dissenting) (citing La.Civ.Code art. 1757) (emphasis added). The claim of unjust

enrichment arises when “[a] person . . . has been enriched without cause at the

expense of another person . . . .” La.Civ.Code art 2298. “A person who has received

a payment or a thing not owed to him is bound to restore it to the person from whom

he received it.” La.Civ.Code art. 2299. “A thing is not owed when it is paid or

delivered for the discharge of an obligation that does not exist.” La.Civ.Code art.

2300.

Arc argues that the allegations in its petition state a quasi-contractual claim of

unjust enrichment sufficient to support the application of La.Code Civ.P. art. 76.1.

We agree. “A plaintiff invoking the provisions of Article[] . . . 76.1 must allege

sufficient facts to prove that the chosen venue is proper.” Elliot, 934 So.2d at 782

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(citing Sorrento Co. v. Honeywell Int’l, Inc., 04-1884 (La.App. 1 Cir. 9/23/05), 916

So.2d 1156.). “For the purposes of determining a proper venue, the plaintiff’s

allegations are taken as true.” Id. (citing Cacamo v. Liberty Mut. Fire Ins. Co., 99-

3479, p. 6 (La. 6/30/00), 764 So.2d 41, 45.). Assuming arguendo the truth of Arc’s

allegations, Mr. Nungesser received a payment from Arc that was not owed to him,

and he has thus been enriched thereby at the expense of Arc.

Having determined that the instant case involves a quasi-contract sufficient to

support the application of La.Code Civ.P. art. 76.1, the question remains whether

La.Code Civ.P. art. 76.1 supports venue in Lafayette Parish. Applying La.Code

Civ.P. art. 76.1 to the case at bar, the relevant question becomes whether the quasi-

contract was “executed” or “performed” in Lafayette Parish. See Bloomer, 767 So.2d

712.

“[T]he appropriate meaning of the term ‘execute,’ for purposes of article 76.1,

is the point in time at which a valid contract is created between the parties, regardless

of whether the contract is oral or written.” State ex rel. Ieyoub v. Justiss Oil Co., 95-

345, p. 2 (La.App. 1 Cir. 11/9/95), 665 So.2d 68, 70. “[A] contract . . . may be

executed in more than one parish . . . For a verbal agreement, venue is proper where

either party was located at the point in time at which a valid contract was created

between the parties.” Elliot, 934 So.2d at 782.

Arc asserts that, as it was located in Lafayette Parish at the time of the quasi-

contract’s execution, La.Code Civ.P. art. 76.1 validates venue in Lafayette Parish.

We agree. Here, Arc alleges in its petition that Mr. Nungesser demanded payment

from Arc, after which an employee of Arc issued such payment to him. Because

Arc’s place of business remained in Lafayette Parish at all times during this period,

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pinpointing the actual moment of execution bears no influence upon the instant

determination. Our jurisprudence directs us to determine venue by assuming the truth

of the plaintiff’s allegations. Based solely upon these allegations, the moment at

which the quasi-contract at issue here was executed, if at all, must fall at some point

between Mr. Nungesser’s demand and Arc’s subsequent payment. Thus, Mr.

Nungesser’s declinatory exception of improper venue must fail. Accordingly, we find

his assignment of error without merit.

CONCLUSION:

For the reasons set forth above, judgment of the trial court is affirmed. All

expenses to be taxed to appellant.

WRIT DENIED.

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