Franz v. Ledoux

927 So. 2d 534, 2006 La. App. LEXIS 628, 2006 WL 782819
CourtLouisiana Court of Appeal
DecidedMarch 28, 2006
DocketNo. 05-CA-822
StatusPublished
Cited by1 cases

This text of 927 So. 2d 534 (Franz v. Ledoux) 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
Franz v. Ledoux, 927 So. 2d 534, 2006 La. App. LEXIS 628, 2006 WL 782819 (La. Ct. App. 2006).

Opinion

SUSAN M. CHEHARDY, Judge.

li>The plaintiff appeals the dismissal of his suit on an exception of prescription. We affirm.

On August 7,1999 Nolan Franz fell from a piece of equipment at an exercise facility owned and operated by French Riviera Spa, Inc. in Metairie, Jefferson Parish. The equipment allegedly had been improperly modified by French Riviera Spa, Inc. (hereafter “French Riviera”). He fell approximately four feet, landing on a step-stool and bruising his right buttock.

At the time Franz had a pre-existing back injury from a July 1998 work-related accident, which was the subject of a pending worker’s compensation claim. Franz did not feel that the spa fall had caused any significant aggravation to his pre-ex-isting herniated discs. However, he reported the fall at the spa to his treating physician, Dr. Donald Dietze.

On September 10, 1999 — a little over a month after the fall at French Riviera— Franz was involved in a traffic accident in Orleans Parish, in which his vehicle was rear-ended by a vehicle driven by John Ledoux, an Orleans Parish domiciliary. A few days later Franz began to experience significant pain in his lower back and neck, which led him to believe he had aggravated his pre-existing |aback injuries in the vehicular accident. Franz was unsure, [536]*536however, which accident was the true cause of the pain.

He reported the traffic accident to Dr. Dietze, who ordered MRI tests of his lumbar and cervical spine. When compared to the MRIs taken following his 1998 work-related accident, the MRIs revealed new damage to Franz’s lower back, as well as damage to his neck.

On August 1, 2000, Franz filed suit in Orleans Parish against French Riviera Spa, John Ledoux, their insurers, and his own uninsured motorist insurer, alleging the defendants were liable “individually, jointly, severally and in solido ” for aggravation of his pre-existing back injuries. The plaintiff relied on his belief that French Riviera and Ledoux were joint or solidary obligors, making Orleans Parish a viable venue in which to sue French Riviera, a Jefferson Parish domiciliary.1

On the same date, August 1, 2000, Franz requested service on the French Riviera Spa through its registered agent in Jefferson Parish.

Because the suit had been filed in Orleans Parish, the Civil District Court clerk had to forward the suit papers to the Jefferson Parish sheriff for service on French Riviera.2 The Jefferson Parish sheriff did not receive the papers until August 11, 2000 — -four days past the August 7 anniversary of the plaintiffs fall at the spa. The Jefferson Parish sheriffs office served the papers on French Riviera on the same day, August 11, 2000.

LLater that month Franz settled his worker’s compensation claim. The defendants in the auto accident claim filed an exception of improper cumulation and mis-joinder of actions, asserting that the claim against French Riviera was improperly cu-mulated with the auto accident claims because there was no community of interest, because the claims arose out of different facts and did not present the same factual and legal issues. Further, the exceptors asserted the suit against French Riviera was in an improper venue.

French Riviera Spa then filed a declina-tory exception of venue, relying on La. C.C.P. arts. 42, 74 and 463. French Riviera argued that Jefferson Parish was the only proper venue for suit against it, because it is a domestic corporation with its registered office located in Jefferson Parish 3 and because Jefferson Parish is where the plaintiff sustained the damages he alleges were caused by French Riviera.4 Further, French Riviera asserted that cu-[537]*537mulation of the action against it with the action against Ledoux was improper because Jefferson Parish was the only proper venue for suit against French Riviera.5 French Riviera sought to have the case dismissed or transferred to Jefferson Parish, pursuant to La.C.C.P. art. 121.6

The plaintiff opposed the exception of venue on the ground that the damage caused to his back by both accidents was “indivisible” — that is, it could not be determined which accident caused what percentage of the damage, so that the defendants were solidarily liable for his injuries. The plaintiff argued that joinder |¡¡was proper under La.C.C.P. art. 641 because all the parties were “necessary for just adjudication,” i.e., to determine proportionate liability for his injuries.

The Orleans district court continued the exception without date pending discovery, on the ground the defendants may be soli-darily bound because the court was unable to discern whether the damages the plaintiff suffered were separate and distinct.

The motor vehicle defendants eventually dismissed their exception of improper cu-mulation and misjoinder. Discovery proceeded in the case, with French Riviera’s exception to venue still undecided.

In June 2003, the plaintiffs treating physician, Dr. Dietz, contradicted his prior written opinions on the issue of causation and testified that it was more likely that the aggravation of the plaintiffs pre-exist-ing back injury had occurred due to his fall at the spa rather than in the auto accident.

The Orleans Parish district court granted French Riviera’s exception to venue and ordered that the case be transferred to Jefferson Parish. The plaintiff filed a motion for rehearing, which the trial court denied. In a written ruling the court stated:

[T]his court finds that the injuries had to occur in the same accident in order for the defendants to be joint-tortfea-sors. This is regardless of the fact that the injuries sustained may overlap. The court finds in this matter that there was one accident that created and [sic] injury, and another which aggravated a preexisting condition. The court further finds that there exist two separate accidents, and therefore there should be two separate causes of action.

Franz v. Ledoux, No. 2000-11722 (La.Civ.Dist.Ct.10/20/03) (unpublished ruling).

The court issued a judgment in which it stated that the application for rehearing of the venue exception was denied and the exception was granted. The [¡¡judgment ordered that the case be transferred to the 24th Judicial District Court for the Parish of Jefferson “without prejudice.”

Shortly thereafter the plaintiff executed a settlement of his claims against the motor vehicle accident defendants. His claims against those defendants were dismissed with a reservation of rights against all other parties.

The plaintiff filed a writ application to the Fourth Circuit Court of Appeal, which granted a writ of review, but on review [538]*538affirmed the trial court’s ruling. In a mul-ti-page ruling on the writ application, the Fourth Circuit found as follows:

[TJhere is no ease of association between the fall at the French Riviera Spa and the automobile accident occurring approximately one month later.... [T]he duty of care that the French Riviera Spa should have exercised in order to prevent relator’s alleged fall did not include the risk of negligence by an automobile driver one month later.
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Bluebook (online)
927 So. 2d 534, 2006 La. App. LEXIS 628, 2006 WL 782819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franz-v-ledoux-lactapp-2006.