Boris Woods Sr. Versus Ace American Insurance Company

• Court: Louisiana Court of Appeal
• Decided: October 31, 2023
• Docket: 23-C-450
• Status: Unknown

Opinion

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

2 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

4 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. 5 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

7 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 POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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