Christopher Burns Versus United Bulk Terminals Davant, LLC

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

April 26, 2022

Alexis Barteet Deputy Clerk

IN RE UNITED BULK TERMINALS DAVANT, LLC

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 807-658

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

WRIT GRANTED; JUDGMENT VACATED, IN PART; CASE REMANDED TO 19TH JUDICIAL DISTRICT COURT FOR FURTHER PROCEEDINGS

In this writ application, relator-defendant, United Bulk Terminals Davant, LLC (“United”), seeks this Court’s supervisory review of the district court’s December 6, 2021 judgment overruling United’s Peremptory Exception of Prescription and granting respondent-plaintiff, Christopher Burns’, Motion to Extend Deadlines pursuant to La. R.S. 9:5830. After review, and finding that the trial court erred in addressing the Exception of Prescription and Motion to Extend Deadlines, we grant the writ, vacate the trial court’s judgment, in part, and remand this matter to the 19th Judicial District Court for further proceedings.

Factual and Procedural History

On June 28, 2019, Christopher Burns allegedly sustained personal injuries at United’s facility located in Plaquemines Parish. Five days prior to the one-year prescriptive period, on June 23, 2020, Mr. Burns fax-filed suit to the 24th Judicial District Court in the Parish of Jefferson. In response to the suit, on December 17, 2020, United filed a Declinatory Exception of Improper Venue and a Peremptory Exception of Prescription.

On February 3, 2021, Mr. Burns filed a Motion to Extend Deadlines pursuant to La. R.S. 9:5830, alleging COVID-19 related reasons for the requested extension. The exceptions and motion were all first heard on February 9, 2021, after which the trial court ruled from the bench, granting the declinatory Exception of Improper venue, denying the peremptory Exception of Prescription, granting the

21-C-738

Motion to Extend Deadlines, and ordering the case transferred to the 19th Judicial District Court in Baton Rouge.

On February 22, 2021, the trial court rendered a written judgment memorializing its earlier oral rulings. Thereafter, on March 19, 2021, United sought this Court’s supervisory review of the February 22, 2021 judgment. On April 27, 2021, this Court granted the writ, in part, on the basis that United had not been properly served with Mr. Burns’ motion or given an opportunity to file a written response before the February, 2021 hearing. This Court vacated the February 22, 2021 judgment and remanded the matter with instructions to the trial court to conduct an evidentiary hearing on all matters addressed at the February 9, 2021 hearing.1

On November 30, 2021, the trial court again heard the exceptions and motion, thereafter, taking the matter under advisement.2 On December 6, 2021, the trial court rendered its written judgment. The trial court’s judgment reflects that the court addressed first Mr. Burns’ Motion to Extend Deadlines, then United’s peremptory Exception of Prescription and third, United’s declinatory Exception of Improper Venue. The trial court judgment further ordered that the case be transferred to the 19th Judicial District Court. The trial court judgment provides:

JUDGMENT … Accordingly, when after having considered the pleadings filed, the law, evidence and argument of counsel: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion to Extend Deadlines Pursuant to La.R.S. 9:5830 and for Expedited Hearing filed by the plaintiff, Christopher Burns, and against the defendant, United Bulk Terminals Davant, L.L.C., is hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED Peremptory Exception of Prescription filed by the defendant, United Bulk Terminals Davant, L.L.C., and against the plaintiff, Christopher Burns, is hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Declinatory Exception of Improper Venue filed by the defendant, United Bulk Terminals Davant, L.L.C., and against the plaintiff, Christopher Burns, is hereby SUSTAINED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the matter entitled Christopher Burns v. United Bulk Terminals, L.L.C., filed in the 24th Judicial District Court be transferred to the 19th Judicial District Court in East Baton Rouge Parish.

1 Burns v. United Bulk Terminals Davant, LLC, 21-135 (La. App. 5 Cir. 4/27/21), -- So.3d --, 2021 WL 1649788. 2 While relator failed to attach the transcript of the November 30, 2021 hearing to its writ application, relator did include documents, including the minute entry of that proceeding, from which this court is able to discern that at the conclusion of the hearing the trial court took the three matters before it under advisement. Relator also attached to this writ application the December 6, 2021 judgment in question. As the trial court did not rule from the bench, the transcript is unnecessary to the issue addressed in this disposition.

In this writ application, relator, United, seeks this Court’s review of the trial court’s December 6, 2021 judgment insofar as it overruled United’s Exception of Prescription and granted Mr. Burns’ Motion to Extend Deadlines pursuant to La. R.S. 9:5830.3

Law and Analysis

A party may properly simultaneously file declinatory and peremptory exceptions. However, in that instance, the trial court should first rule upon a declinatory exception before ruling upon a peremptory exception filed before or at the same time. Schexnayder v. Gish, 06-579 (La. App. 5 Cir. 12/27/06), 948 So.2d 313, 314. See Favorite v. Alton Ochsner Medical Foundation, 537 So.2d 722 (La. App. 4 Cir. 1988); and Bennett v. Giarrusso, 583 So.2d 607 (La. App. 4 Cir.1991).

In this case, relator, United, simultaneously filed a declinatory Exception of Improper Venue and a peremptory Exception of Prescription. Thereafter, Mr. Burns filed his Motion to Extend Deadlines. Although the declinatory and peremptory exceptions were properly filed and heard simultaneously, the trial court erred in failing to rule first upon the declinatory Exception of Improper Venue. Thereafter, upon granting that exception, the trial court further erred in failing to then transfer the case to the 19th J.D.C., the court of proper venue, leaving the two remaining exceptions to be addressed by the 19th J.D.C. See Favorite v. Alton Ochsner Medical Foundation, 537 So.2d 722, 724 (La. App. 4 Cir. 1988) (holding that a declinatory exception of improper venue must be tried before a peremptory exception filed before or at the same time.); Schexnayder v. Gish, 06-579 (La. App. 5 Cir. 12/27/06), 948 So.2d 313, 314 (holding the trial court was required to rule on exception of improper venue prior to peremptory exception of no right of action and further holding that “…the transferee court should not be bound by a decision of a co-equal court from another parish.”).

Accordingly, we hereby grant this writ, vacate the trial court’s December 6, 2021 judgment, in part, insofar as it denied United’s peremptory Exception of Prescription and granted Mr. Burns’ Motion to Extend Deadlines, and remand this case to the 19th Judicial District Court for the Parish of East Baton Rouge for further proceedings.

Gretna, Louisiana, this 26th day of April, 2022.

FHW

3 No party has complained of the trial court’s ruling on the declinatory Exception of Improper Venue and, thus, that portion of the judgment is not before this Court for review.

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

WINDHORST, J., CONCURS WITH REASONS While I agree with the disposition of this writ, I respectfully disagree with

the finding that based on the sequence of the rulings in the judgment, the trial court erred in failing to rule first upon United’s declinatory exception of improper venue. In all other respects, I agree.

SJW 21-C-738

CHRISTOPHER BURNS NO. 21-C-738

VERSUS FIFTH CIRCUIT

UNITED BULK TERMINALS DAVANT, LLC COURT OF APPEAL

STATE OF LOUISIANA

LILJEBERG, J., CONCURS WITHOUT REASONS

HJL 21-C-738 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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21-C-738 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable E. Adrian Adams (DISTRICT JUDGE) Kirk N. Aurandt (Relator) Vionne M. Douglas (Respondent)

MAILED Stephanie Bridges (Respondent) Michael W. McMahon (Relator) Attorney at Law Attorney at Law 650 Poydras Street Post Office Box 5350 Suite 2303 Covington, LA 70434 New Orleans, LA 70130

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