Opinion
2023 CA 0571 2023 CW 0273
12-12-2023
LA SOFTWASH AECS, LLC, Brody Harris, and Karmyn Sibley Harris v. GPLA, LLC, Bryce Savoy, and Olivia Savoy
Michael P. Bienvenu, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellants, LA Softwash AECS, LLC, Brody Harris, and Karmyn Sibley Harris William L. Caughman, III, Adrienne M. Wood, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, GPLA, LLC, Bryce Savoy, and Olivia Savoy
Appealed from the 21st Judicial District Court, Parish of Livingston, State of Louisiana, No. 176138, The Honorable Brenda Bedsole Ricks, Judge Presiding
Michael P. Bienvenu, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellants, LA Softwash AECS, LLC, Brody Harris, and Karmyn Sibley Harris
William L. Caughman, III, Adrienne M. Wood, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, GPLA, LLC, Bryce Savoy, and Olivia Savoy
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
WOLFE, J.
2This is an appeal of a judgment sustaining an exception of improper venue and dismissing plaintiffs’ suit. An application for supervisory writ seeking review of the same judgment was also referred to this panel for review. We affirm the judgment and dismiss the writ application.
FACTS
LA Softwash AECS, LLC (Softwash), Brody Harris, and Karmyn Sibley Harris instituted this suit in Livingston Parish, where each of them is domiciled. Named as defendants were GPLA, LLC, alleged to be a Louisiana limited liability company also domiciled in Livingston Parish, as well as Bryce Savoy and Olivia Savoy, who are domiciled in the state of Alabama.
According to the petition, Softwash and GPLA entered into a contract of sale, whereby GPLA sold Softwash the assets associated with a business for the sum of $300,000.00. The petition alleged that within weeks of the sale, Softwash and Mr. Harris learned that GPLA and Mr. Savoy had made material misrepresentations and/or omissions regarding the business prior to sale, which were an inducement and the legal cause for plaintiffs to execute the contract. The petition further alleged that GPLA breached the contract by failing to provide agreed upon services to Softwash, which forced plaintiffs to close the business.
Based on the allegations of the petition, plaintiffs sought a judgment declaring null and void the sale contract, as well as the promissory note, security agreement, and UCC-1 financing statement executed in connection with the sale. Plaintiffs also prayed for damages against defendants, in solido, including amounts paid as consideration and payments made under the promissory note, amounts incurred as a result of terminating the lease for the business’s location, and business operating losses.
3Defendants responded by filing an exception of improper venue. Defendants asserted that venue was improper in Livingston Parish because neither Mr. nor Ms. Savoy were residents of Livingston Parish and GPLA was domiciled in East Baton Rouge Parish, not Livingston Parish as alleged in the petition. Plaintiffs countered that defendants’ argument was erroneously predicated on the general rules of venue set forth in La. Code Civ. P. art. 42, while this matter fell under the venue provision specially applicable to solidary obligors. In short, plaintiffs contended that since their own domicile is a proper venue as to Mr. and Ms. Savoy, who they sued under Louisiana’s long-arm statute, then venue is proper in Livingston Parish as to GPLA, a solidary defendant, by operation of La. Code Civ. P. art. 73. Defendants responded that plaintiffs had not pleaded facts that would support their argument.
Defendants additionally filed an exception of vagueness, which was rendered moot when the trial court sustained the exception of improper venue.
After a hearing, the trial court sustained the exception of improper venue and dismissed plaintiffs’ suit without prejudice. Plaintiffs filed both a supervisory writ application and appeal, seeking review of the trial court’s judgment. The writ application was referred to this panel for resolution in conjunction with this appeal. See LA Softwash AECS, LLC v. GPLA, LLC, 2023-0273 (La. App. 1st Cir. 6/20/23) (unpublished writ action).
JURISDICTION
[1] Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. Code Civ. P. art. 1. Appellate courts have a duty to examine their subject matter jurisdiction sua sponte, even if the litigants do not raise the issue. Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017-1250 (La. App. 1st Cir. 12/20/18), 268 So.3d 1044, 1046 (en banc).
[2, 3] 4This court’s appellate jurisdiction extends to final judgments, which determine the merits of the controversy in whole or in part, and to interlocutory judgments made expressly appealable by law. See La. Code Civ. P. arts. 1841 and 2083; 4 C’s Land Corp. v. Columbia Gulf Transmission Co., 2021-0121 (La. App. 1st Cir. 10/21/21), 332 So.3d 123, 126, writ denied, 2021-01735 (La. 1/19/22), 331 So.3d 322. Venue is a threshold inquiry that determines only the procedural issue of where to litigate and does not affect the ultimate determination of the merits of the case. Land v. Vidrine, 2010-1342 (La. 3/15/11), 62 So.3d 36, 40-41. Thus, a judgment that sustains an exception of improper venue and transfers the matter to a new venue is interlocutory and reviewable by supervisory writ. See Land, 62 So.3d at 39-40; Frandria v. Holden, 2020-0410 (La. App. 1st Cir, 12/30/20), 319 So.3d 332, 340.
[4] The judgment in this case sustains an exception of improper venue but, rather than transferring the matter to a new venue, dismisses plaintiffs’ suit. A judgment that dismisses a suit is an appealable judgment. See La. Code Civ. P. art. 1915(A)(1); Benoist v. Jackson National Life Ins. Co., 2022-0878 (La. App. 1st Cir. 4/14/23), 364 So.3d 1162, 1165 n.3. Therefore, although a venue ruling does not determine the merits of the suit in whole or in part, a judgment that sustains an exception of venue and dismisses plaintiffs’ suit is subject to appellate review. See DeForest v. Acadian Gardens Condominium Association, 2022-1157 (La. App. 1st Cir. 4/28/23), 368 So.3d 110, 116; Lewis v. Marcotte, 2021-0432 (La. App. 1st Cir. 12/22/21), 339 So.3d 1189, 1191; Alost v. Lawler, 2018-1271 (La. App. 1st Cir. 5/8/19), 277 So.3d 329, 337; see also Bertrand v. Desselle, 2022-236 (La. App. 3rd Cir. 11/16/22), 353 So.3d 936, 940; Bruno v. CDC Auto Transport, Inc., 2019-1065 (La. App. 4th Cir. 6/3/20), 302 So.3d 8, 12 n.10, writ denied, 2020-00836 (La. 10/14/20), 302 So.3d 1118;5 Perniciaro v. McInnis, 2016-740 (La. App. 5th Cir. 5/31/17), 222 So.3d 987, 990 n.3. Accordingly, we dismiss the application for supervisory writ and consider the merits of plaintiffs’ appeal.
VENUE
[5] "Venue" is defined as the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La. Code Civ. P. art. 41. A suit against two or more defendants must be brought in a proper venue as to all defendants. See La. Code Civ. P. art. 463(2). Venue is a question of law, which is reviewed de novo by the appellate court. DeForest, 368 So.3d at 113.
[6, 7] The general rules for venue are set forth in La. Code Civ. P. art. 42, which provides that a suit against a domestic corporation shall be brought in the parish where its registered office is located. At the hearing before the trial court, plaintiffs conceded that their petition mistakenly represented that GPLA was domiciled in Livingston Parish. However, plaintiffs maintained that GPLA’s domicile "ha[d] nothing to do with the venue exception." Rather, plaintiffs contended that they filed suit in the parish of their own domicile because it is a proper venue under La. Code Civ. P. art. 73 for this suit against joint and solidary obligors.
Now on appeal, plaintiffs argue that since defendants did not formally introduce evidence at the hearing to prove otherwise, the allegation of their petition that GPLA is domiciled in, Livingston Parish must be accepted as true, rendering venue proper in Livingston Parish. However, the transcript of the hearing shows that such proof was rendered unnecessary when plaintiffs conceded to the trial court that the allegation in their petition was a mistake. The hearing then continued with all parties and the trial court accepting as proven fact that GPLA is domiciled in East Baton Rouge Parish. Therefore, plaintiffs are estopped from now arguing that GPLA’s domicile in East Baton Rouge Parish was not proven. Furthermore, this court has recognized our ability to take judicial notice of the official governmental website of the Louisiana Secretary of State and the records it contains. See Brown v. Stratis Construction, LLC, 2021-0964 (La. App. 1st Cir. 3/7/22), 341 So.3d 640, 644 n.3.
Louisiana Code of Civil Procedure article 73(A) pertinently provides:
An … action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff’s domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.
6La. R.S. 13:3203 provides for venue in the parish of the plaintiffs domicile when personal jurisdiction over a nonresident defendant is exercised pursuant to Louisiana’s long-arm statute, La. R.S. 13:3201.
[8] A plaintiff invoking the provisions of La. Code Civ. P. art. 73 must allege sufficient facts to prove both that the chosen venue is proper for at least one defendant. The plaintiff is further required to allege facts showing that the defendants are, in fact, jointly or solidarity obligated. Price v. Roy O. Martin Lumber Co., 2004-0227 (La. App. 1st Cir. 4/27/05), 915 So.2d 816, 824-25, writ denied, 2005-1390 (La. 1/27/06), 922 So.2d 543.
Plaintiffs argue that they alleged in solido tort claims against GPLA and Mr. Savoy for misrepresentation, whether negligent or intentional. However, after careful review, we find that plaintiffs made only conclusory claims in their petition that defendants are solidarity liable to them. Plaintiffs made no specific factual allegations to support their claim of solidary liability. While plaintiffs are correct that if GPLA is a joint obligor with the Savoys, then venue would be proper in Livingston Parish, the plaintiffs did not allege facts sufficient to raise tort claims against the defendants jointly and no evidence was introduced at the hearing on the exception to prove that the defendants were joint obligors. See La. Civ. Code arts. 73 and 2324(B); La. R.S. 13:3203; see also Price, 915 So.2d at 824-25; Boeck v. Performance Toyota of Louisiana, Inc., 562 So.2d 458, 460 (La. App. 5th Cir. 1990); and see also Green v. Auto Club Group Ins. Co., 2008-2868 (La. 10/28/09), 24 So.3d 182, 186-87 (Johnson, J., concurring in the result). Consequently, we find no error in the trial court’s rejection of plaintiffs’ argument that venue is proper in Livingston Parish as to GPLA under La. Code Civ. P. art. 73.
CONCLUSION
The trial court’s judgment that sustained defendants’ exception of improper venue and dismissed plaintiffs’ suit is affirmed. Supervisory writ application 2023 7CW 0273 is dismissed. Costs of this appeal are assessed to plaintiffs/appellants, LA Softwash AECS, LLC, Brody Harris, and Karmyn Sibley Harris.
JUDGMENT AFFIRMED; WRIT APPLICATION DISMISSED.
*Judge Guy Holdridge, retired, is serving as pro tempore by special appointment of the Louisiana Supreme Court*
Holdridge, J., dissents in part with reasons HOLDRIDGE, J., dissenting in part.
1I respectfully dissent in part. I agree with the majority that the plaintiffs did not sufficiently allege or present any evidence to show that the defendants were solidarity liable or joint obligors. However, the plaintiffs should be given an opportunity to amend their petition to specifically allege the facts showing that the defendants are solidary or joint obligors. Louisiana Code of Civil Procedure article 932(A) mandates that "[w]hen the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court [.]" (Emphasis added.) The majority opinion clearly indicates that it is possible that the plaintiffs can amend their petition to allege facts that the defendants are solidary or joint obligors.