Elliott v. Amato and Creely

934 So. 2d 779, 2006 WL 809023
CourtLouisiana Court of Appeal
DecidedMarch 29, 2006
Docket2005 CA 0376
StatusPublished
Cited by12 cases

This text of 934 So. 2d 779 (Elliott v. Amato and Creely) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. Amato and Creely, 934 So. 2d 779, 2006 WL 809023 (La. Ct. App. 2006).

Opinion

934 So.2d 779 (2006)

Howard P. ELLIOTT, Jr.
v.
AMATO AND CREELY, a Professional Law Corporation, and Madro Bandaries.

No. 2005 CA 0376.

Court of Appeal of Louisiana, First Circuit.

March 29, 2006.

*780 Paul H. Spaht, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, for Plaintiff-Appellee Howard P. Elliott, Jr.

Anna E. Dow, Baton Rouge, Madro Bandaries, Gretna, for Defendants-Appellants Amato & Creely, APLC, and Madro Bandaries.

Before: PARRO, McDONALD, and HUGHES, JJ.

PARRO, J.

In this declaratory judgment action regarding disputed attorney fees, the defendants, Amato and Creely, A Professional Law Corporation (Amato), and Madro Bandaries (Bandaries), appeal a judgment overruling their declinatory exception raising the objection of improper venue. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Howard P. Elliott, Jr., a Baton Rouge attorney, filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish, seeking a declaratory judgment that in the event there is any recovery by the plaintiffs in certain pending lawsuits, then he is entitled to his agreed-upon share of the attorney fees from Amato and Bandaries.[1] The petition alleges that the Amato firm is a professional law corporation with its registered office and law office in Jefferson Parish, and that Bandaries is a resident of Orleans Parish whose law office was formerly located in Baton Rouge, Louisiana (East Baton Rouge Parish), and is now located in Gretna, Louisiana (Jefferson Parish). Elliott claims that in two class action cases, the Ring case[2] and the Saliah case,[3] he served as co-counsel with Amato and Bandaries, representing the plaintiffs pursuant to contingency fee contracts. Elliott further claims that although he is willing to continue assisting in both cases, Amato and Bandaries have refused to permit him to participate further and have refused to acknowledge or confirm his attorney fee interest in the cases. Elliott also states in his petition that most of the legal services provided by him in connection with these cases were performed in East Baton Rouge Parish.

Amato and Bandaries filed an exception raising the objection of improper venue. *781 Amato stated that its registered office is in Jefferson Parish. Bandaries stated that he does not practice law as an individual, but practices as Madro Bandaries, A Professional Law Corporation, which corporation is registered in Orleans Parish.[4] Therefore, they contended venue was improper in East Baton Rouge Parish, as the only proper venues for this proceeding would be in Jefferson Parish and/or Orleans Parish. Elliott argued that two special venue provisions applied, because he had executed agreements among the attorneys and performed work in East Baton Rouge Parish pursuant to those agreements, and/or because the wrongful conduct had occurred and he had sustained and would sustain damages in East Baton Rouge Parish. After two hearings[5] at which evidence was submitted, the court overruled the exception. This appeal followed.

APPLICABLE LAW

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. LSA-C.C.P. art. 41; Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479 (La.6/30/00), 764 So.2d 41, 44. The objection to improper venue is raised by a declinatory exception. LSA-C.C.P. art. 925. A judgment overruling a declinatory exception raising the objection of improper venue is an appealable judgment, because it is an interlocutory judgment that may cause irreparable injury. Frederic v. Zodiac Dev., 02-1178 (La.App. 1st Cir.2/14/03), 839 So.2d 448, 451 n. 3; A & P Boat Rentals, Inc. v. American Lloyd's, 592 So.2d 1361, 1362 (La.App. 1st Cir. 1991). 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. 1st Cir.4/27/05), 915 So.2d 816, 824. However, the trial court's factual findings underlying the decision are reviewed under the manifest error standard of review. See Peters v. Alpharetta Spa, L.L.C., 04-0979 (La.App. 1st Cir.5/6/05), 915 So.2d 908, 910.[6]

Plaintiffs may choose any venue available under the Code of Civil Procedure or any other supplementary venue provided by law that fits the particular circumstances of their claims. Cacamo, 764 So.2d at 44; Price, 915 So.2d at 824. Generally, an action against an individual who is domiciled in the state should be brought in the parish of his domicile or residence, and an action against a domestic corporation should be brought in the parish where its registered office is located. See LSA-C.C.P. art. 42(1) and (2). The general rules of venue set out in Article 42 are subject to certain exceptions. LSA-C.C.P. art. 43. These alternative statutory venue provisions are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. Jordan v. Central Louisiana Elec. Co., Inc., 95-1270 (La.6/23/95), 656 So.2d 988, 989; Operational Technologies Corp. v. Environmental *782 Contractors, Inc., 95-0413 (La.App. 1st Cir.11/9/95), 665 So.2d 14, 15.

One of these additional venue provisions is stated in Article 76.1, which allows an action on a contract to 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. This supplementary venue provision reflects the policy decision of the legislature that it is fair to sue a corporate defendant who enters into contracts with an aggrieved plaintiff in a venue other than the defendant's home base. Cacamo, 764 So.2d at 44. Such a contract may be verbal or written, State ex rel. Ieyoub v. Justiss Oil Co., Inc., 95-0345 (La.App. 1st Cir.11/9/95), 665 So.2d 68, 70, and may be executed in more than one parish. Michael F. Smith, CPA v. Alford, 04-0586 (La.App. 1st Cir.3/24/05), 906 So.2d 674, 675. For example, if one party signs a contract in one parish and the other party signs it in another parish, venue is proper in either parish where the document was executed. See Jordan, 656 So.2d at 989. 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. See Ieyoub, 665 So.2d at 70. Another supplemental venue provision allows an action for the recovery of damages for an offense or quasi offense to be brought in the parish where the wrongful conduct occurred or in the parish where the damages were sustained. LSA-C.C.P. art. 74.

A plaintiff invoking the provisions of Articles 74 and 76.1 must allege sufficient facts to prove that the chosen venue is proper. Sorrento Companies, Inc. v. Honeywell Intern., Inc., 04-1884 (La.App. 1st Cir.9/23/05), 916 So.2d 1156, 1162. For the purposes of determining a proper venue, the plaintiff's allegations are taken as true. See Cacamo, 764 So.2d at 45. If the grounds for an objection of improper venue do not appear on the face of the plaintiff's petition, the burden is on the defendant to offer evidence in support of his position. Jewell v. Dudley L. Moore Ins. Co., 95-2453 (La.App. 1st Cir.6/28/96), 676 So.2d 223, 225, writ denied, 96-2015 (La.11/8/96), 683 So.2d 273.

ANALYSIS

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934 So. 2d 779, 2006 WL 809023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-amato-and-creely-lactapp-2006.