Boris Woods Sr. Versus Ace American Insurance Company ( 2023 )

BORIS WOODS SR. NO. 23-C-450
VERSUS FIFTH CIRCUIT
ACE AMERICAN INSURANCE COMPANY, COURT OF APPEAL
ET AL
STATE OF LOUISIANA
October 31, 2023
Linda Wiseman
First Deputy Clerk
IN RE MICHAEL PUSEY
APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH
OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
NGHANA LEWIS, DIVISION "B", NUMBER 76,880
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Robert A. Chaisson
WRIT DENIED IN PART, WRIT GRANTED IN PART,
MOTION TO TRANSFER VENUE GRANTED,
CASE TRANSFERRED TO THE 22ND JUDICIAL DISTRICT
COURT
Defendant, Michael Pusey, seeks supervisory review of the trial court’s
ruling denying his exception of improper venue and motion to transfer venue. For
the reasons that follow, we deny the writ in part, grant the writ in part, and grant
the motion to transfer venue to the 22nd Judicial District Court for the Parish of St.
Tammany.
Facts and Procedural History
This case arises from a July 2, 2020 auto accident that occurred in St.
Tammany Parish on Interstate 10 near U.S. Highway 190. At the time of the
accident, defendant Michael Pusey was in the course and scope of his employment
with defendant Laboratory Corporation (Labcorp), driving a vehicle owned by
23-C-450
Labcorp and insured by defendant Ace American Insurance Company. The
plaintiff, Boris Woods, resides in St. Tammany Parish.
In 2018 defendant Pusey moved from LaPlace, located in St. John the
Baptist Parish, to Ponchatoula, located in Tangipahoa Parish. At the time of the
accident in 2020, Pusey’s driver’s license still listed his LaPlace home address.
On June 10, 2021, plaintiff filed suit against Pusey, Labcorp, and Ace in St.
John the Baptist Parish. Plaintiff initially obtained service of the petition only on
Labcorp and Ace. On August 3, 2021, shortly after they were served, Labcorp and
Ace filed an exception of improper venue and motion to transfer venue, attaching
as evidence in support of their exception and motion an unsworn letter from Pusey
that indicated his intent to reside in Tangipahoa Parish. According to Pusey’s
current writ application, after Labcorp and Ace’s venue exception and motion had
been filed, on November 11, 2021, Pusey filed sworn declarations of intent
regarding his domicile in the public records of both St. John the Baptist Parish and
Tangipahoa Parish. Pusey contends that Labcorp and Ace then attached Pusey’s
sworn declarations to their reply memorandum, which they filed in response to
plaintiff’s opposition to their venue exception and motion to transfer venue. After a
December 3, 2021 hearing, the trial court denied Labcorp and Ace’s exception of
improper venue and motion to transfer venue. The trial court’s judgment on
Labcorp and Ace’s venue exception and motion are not before the Court in the
present writ application.
Plaintiff did not serve Pusey with the petition until May 9, 2023. On June
28, 2023, Pusey, represented by the same counsel as Ace and Labcorp, filed a
declinatory exception of improper venue and motion to transfer venue to St.
Tammany Parish pursuant to the doctrine of forum non conveniens. Attached to the
exception/motion were Pusey’s sworn declarations of intent and an affidavit
indicating that he resided in Tangipahoa Parish at the time of the 2020 accident. At
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the conclusion of the contradictory hearing, the trial court denied Pusey’s
exception of improper venue and motion to transfer venue. The trial court stated in
its August 15, 2023 Judgment:
At the time the Petition for Damages was filed, there was
information available to the Plaintiff which indicated that
the Defendant was a resident of St. John the Baptist Parish.
On the date of the accident, Mr. Pusey provided the
responding officer with his driver’s license which revealed
a residential address in St. John the Baptist Parish. Thus,
the State of Louisiana Uniform Motor Vehicle Traffic
Crash Report indicates that Mr. Pusey resided in St. John
the Baptist Parish. Further, Mr. Pusey’s voter registration
at the time of the filing of the initial petition shows that
Mr. Pusey is registered to vote in St. John the Baptist
Parish. Furthermore, Mr. Pusey does not own a home,
whereas the Court could have weighed in any homestead
exemptions, which would have lessened the weight of any
other evidence. Moreover, even accepting Mr. Pusey’s
declaration regarding his intentions of a change of
domicile to be true, Mr. Pusey’s post-petition intentions
have no bearing on the analysis. A Defendant’s domicile
and intent to remain in a specific parish must be
established at the time the lawsuit is filed.
The Court finds that the evidence presented at the time the
Petition for Damages was filed is sufficient to establish
the Defendant’s domicile as St. John the Baptist Parish.
Thus, St. John the Baptist Parish is the proper venue to
bring suit against Mr. Pusey and any joint or solidary
obligor made defendant.
Pusey now seeks supervisory review of those rulings.
Exception of Improper Venue
A trial court’s ruling on an exception of improper venue is a question of law
that is reviewed de novo. Seghers v. LaPlace Equip. Co., Inc., 13-350 (La. App. 5
Cir. 2/12/14), 136 So.3d 64, 70. Pursuant to La. C.C.P. art. 930, evidence may be
presented at a hearing on a declinatory exception. Ameriprint, LLC v. Canon
Financial Servs., Inc., 21-110 (La. App. 5 Cir. 5/24/21), 2021 WL 2093824, at *2
(unpublished writ disposition). If evidence is admitted at a hearing on a declinatory
exception, the exception must be resolved on the evidence presented, rather than
3
on the allegations in the petition. Id. (citing Johnson v. Byrd, 48,411 (La. App. 2
Cir. 9/25/13), 125 So.3d 1220, 1226). For purposes of a venue exception, the
allegations of the plaintiff's petition are taken as true; however, when evidence is
offered at a trial on the exception, the court is not bound to accept as true the
allegations of the petition. Ameriprint, supra (citing Chumley v. White, 46,479 c/w
46,707 (La. App. 2 Cir. 11/9/11), 80 So.3d 39, 42).
At the August 10, 2023 hearing on the exception of improper venue and
motion to transfer, neither party introduced any evidence in support of or against
defendant’s exception and motion. The hearing transcript reveals that the parties
discussed the attachments to Pusey’s exception/motion, but Mr. Pusey’s counsel
did not offer, file, and introduce these attachments into evidence at the hearing.
When faced with this scenario, this Court has held:
When a party raises an exception or motion that must be
proven, it is that party’s burden to present evidence
establishing the claims made therein. See La. C.C.P. arts.
930, 931, 963; [s]ee also Scheuermann v. Cadillac of
Metairie, Inc., 11-1149 (La. App. 5 Cir. 5/31/12), 97 So.3d
423, 426. The exceptions to that rule are the peremptory
exception of no cause of action and the motion for
summary judgment. La. C.C.P. articles 931 and 966.
***
Other defenses, however, whether raised by exception or
motion, or in other pleadings, must be proven by evidence
introduced at a hearing, where the trial court performs its
function of weighing evidence, making credibility
determinations, and making factual findings. Lexington
Ins. Co. v. Tasch, Inc., 12-339 (La. App. 5 Cir. 11/27/12),
105 So.3d 950, 955.
Exhibits and attachments not properly and officially
offered and admitted into evidence cannot be considered,
even if it is physically filed into the trial court record.
Denoux v. Vessel Mgmt., Services, Inc., 07-2143 (La.
5/21/08), 983 So.2d 84, 88; Tasch, 105 So.3d at 955;
Scheuermann, 97 So.3d at 427; Jackson v. United Services
Auto. Ass’n Cas. Ins. Co., 08-333 (La. App. 5 Cir.
10/28/08), 1 So.3d 512, 515. Documents attached to
memoranda do not constitute evidence and cannot be
considered as such on appeal. Denoux, 983 So.2d at 88.
Appellate courts are courts of record and may not review
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evidence that is not in the appellate record, or receive new
evidence. Id. La. C.C.P. art. 2164.
Draughn v. Thacker, 14-216 (La. App. 5 Cir. 11/25/14), 165 So.3d 1010, 1012.
The Supreme Court and this Court have routinely held that appellate courts
may not consider evidence not properly admitted into evidence, whether or not the
lack of admission into evidence was raised as an error. Id. at 1012-13. See also
Ford Motor Credit Co., LLC v. Davis, 20-271 (La. App. 5 Cir. 10/13/21), 329
So.3d 1047, 1055-56.
As in Draughn, the hearing transcript in this matter indicates that counsel
referred to Mr. Pusey’s sworn declarations and affidavit, which were attached to
his exception and motion, yet counsel never moved to admit these exhibits into
evidence, the trial court did not admit these exhibits into evidence, and the parties
did not stipulate to the admission of the exhibits.1
Because there is no evidence properly before this Court on Mr. Pusey’s
exception of improper venue, the allegations of plaintiff’s petition must be taken as
true. See Ameriprint, supra. Plaintiff’s petition states that Pusey is a resident of the
Parish of St. John the Baptist, which would render venue proper in St. John the
Baptist Parish under La. C.C.P. art. 42. Accordingly, we find no error in the result
that the trial court reached when it overruled Mr. Pusey’s exception of improper
venue. The writ is denied on this issue.
Motion to Transfer Venue
1
The hearing transcript states in relevant part:
[Pusey] has filed, and the court has as exhibits in the record all of the different
indications of his move. Changing his car insurance to be in Tangipahoa before this
happened. Filing statements and evidence that he is moving, that he lives in
Tangipahoa, making sure that people in court records know that. But the main thing
is his affidavit, Your Honor, you can rely on that.
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Mr. Pusey next argues that even if venue were found to be proper in St. John
the Baptist Parish, the trial court erred in refusing to transfer the matter based on
forum non conveniens. La. C.C.P. art. 123 A (1) states:
For the convenience of the parties and the witnesses, in the
interest of justice, a district court upon contradictory
motion, or upon the court’s own motion after contradictory
hearing, may transfer a civil case to another district court
where it might have been brought; however, no suit
brought in the parish in which the plaintiff is domiciled,
and in a court which is otherwise a court of competent
jurisdiction and proper venue, shall be transferred to any
other court pursuant to this Article.
We review the denial of a motion to transfer venue for an abuse of
discretion. Signet Jewelers Ltd. v. Steadfast Ins. Co., 21-288 (La. App. 4 Cir.
12/22/21), 366 So.3d 169, 171.
Although the plaintiff’s choice of forum is generally entitled to some
deference when proper venue lies in more than one parish, the plaintiff may not
choose an inconvenient forum to vex, harass, or oppress the defendants. Holland v.
Lincoln Gen’l Hosp., 10-38 (La. 10/19/10), 48 So.3d 1050, 1055. Moreover, courts
give less deference to a plaintiff’s choice to sue outside his home forum. Foot
Locker, Inc. v. Zurich American Ins. Co., 21-594 (La. App. 4 Cir. 5/11/22), 340
So.3d 166, 170. The doctrine of forum non conveniens also gives courts a
mechanism to regulate crowded dockets by insuring that cases of no interest to the
particular community where the case is filed can be moved to a more appropriate
forum. Fox v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 576
So.2d 978, (La. 1991).
The Petition for Damages indicates that plaintiff, Boris Woods, is a resident
of St. Tammany Parish. The accident occurred in St. Tammany Parish. Mr. Pusey
argues, and we agree, based on the contents of plaintiff’s petition, that St.
Tammany Parish is an adequate and available forum because it is the home forum
of the plaintiff and it is where the accident occurred. Where more than one forum
6
is available, the court considers public interest factors and private interest factors to
determine whether a transfer of venue is appropriate. Minot v. Waffle House, Inc.,
20-444 (La. App. 4 Cir. 10/2/20), 365 So.3d 709, 716, writ denied, 20-1277 (La.
1/12/21), 308 So.3d 714.
The private interest factors include the convenience of the parties; access to
sources of proof and evidence, as well as viewing of the premises, if required; the
cost of obtaining the attendance of witnesses; and the obstacles to a fair trial.
Boudreaux v. Able Supply Co., 08-1350 (La. App. 3 Cir. 10/07/09), 19 So.3d 1263,
1268. In Boudreaux, the Court found that private interest factors weighed heavily
in favor of an alternative forum where the plaintiff resided in that forum, the
treatment occurred in that forum, and most of the witnesses were located in that
forum. Id. Here, plaintiff’s petition establishes that plaintiff resides in St.
Tammany Parish, the accident occurred in St. Tammany Parish, and thus the only
way to view the location of the tort, if necessary, would be to go to St. Tammany
Parish. Furthermore, we presume that any investigation of the accident would have
been performed by local law enforcement authorities, not by authorities in St. John
the Baptist Parish. In light of these factors, and considering that courts give less
deference to the plaintiff’s choice of forum when the plaintiff chooses a forum that
is not his home, we find the private interest factors weigh in favor of transferring
the case to St. Tammany Parish.
The relevant public interest factors include: administrative difficulties
flowing from court congestions; the local interest in having localized controversies
decided at home; and the unfairness of burdening citizens in an unrelated forum
with jury duty. Boudreaux, 19 So.3d at 1268. See also Minot v. Waffle House, Inc.,
20-444 (La. App. 4 Cir. 10/2/20), 365 So.3d 709, 716, writ denied, 20-1277 (La.
1/12/21), 308 So.3d 714. It would appear that St. John the Baptist Parish has little
interest in the present matter, and burdening its citizens with jury duty in a case
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that occurred in St. Tammany Parish and involved a St. Tammany Parish resident
suggests that St. Tammany Parish has a greater interest.
In sum, we find that the trial court abused its discretion in refusing to grant
Mr. Pusey’s motion to transfer venue. We therefore grant the writ in part, grant
defendant’s motion to transfer venue, and order that the matter be transferred to the
22nd Judicial District Court for the Parish of St. Tammany.
Gretna, Louisiana, this 31st day of October, 2023.
SMC
MEJ
RAC
8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/31/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
23-C-450
E-NOTIFIED
40th District Court (Clerk)
Honorable Nghana Lewis (DISTRICT JUDGE)
Douglas J. Womac, Jr. (Respondent)
Jesse G. Frank (Relator)
MAILED
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