Hibernia Nat. Bank v. ORLEANS REG. HOSP.

682 So. 2d 1291, 1996 WL 631041
CourtLouisiana Court of Appeal
DecidedNovember 1, 1996
Docket28,982-CA
StatusPublished
Cited by7 cases

This text of 682 So. 2d 1291 (Hibernia Nat. Bank v. ORLEANS REG. HOSP.) 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
Hibernia Nat. Bank v. ORLEANS REG. HOSP., 682 So. 2d 1291, 1996 WL 631041 (La. Ct. App. 1996).

Opinion

682 So.2d 1291 (1996)

HIBERNIA NATIONAL BANK, Plaintiff-Appellee,
v.
ORLEANS REGIONAL HOSPITAL, L.L.C., and Tenet Healthcare Corporation (f/k/a) National Medical Enterprises, Inc., Defendants-Appellants.

No. 28,982-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1996.
Rehearing Denied December 5, 1996.

*1292 Davidson, Nix & Jones by Randall S. Davidson, S. Christopher Slatten, Shreveport, for Appellant-Orleans Regional Hospital.

Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.P. by Daniel A. Ranson, David J. Dowell, Jr., Gretna, for Appellee-Tenet Healthcare Corporation.

Hargrove, Pesnell & Wyatt by A.L. Wedgeworth, Scott C. Sinclair, Shreveport, for Hibernia National Bank.

Before MARVIN, BROWN and GASKINS, JJ.

GASKINS, Judge.

The appellant, Orleans Regional Hospital, appeals from a trial court judgment granting an exception of improper venue filed by Tenet Healthcare Corporation. The trial court found that venue for this concursus proceeding is proper in Orleans Parish and transferred the matter to that parish. For the following reasons, we affirm the trial court judgment.

FACTS

National Medical Enterprises, Inc. (NME), leased the F. Edward Hebert Hospital in New Orleans from the United States Navy.[1] In 1993, NME subleased space in the hospital to Orleans Regional Hospital (ORH). ORH posted a $500,000.00 standby letter of credit with Hibernia to insure its performance under the sublease. Under the terms of this letter of credit, NME could make demand on the bank for payment of the $500,000.00 if ORH defaulted on a letter agreement between the parties, relating to the sublease agreement. ORH contends that this sublease and letter of credit expired. A new sublease was executed in 1994 with a $500,000.00 standby letter of credit issued by Pioneer Bank and Trust.

In June, 1995, ORH and NME attempted to settle a series of disputes under the 1994 sublease. As part of the attempted compromise, a new $500,000.00 standby letter of credit was issued by ORH, in favor of NME, through Hibernia. It is this 1995 letter of credit that is at issue in the present concursus proceeding.[2] Under the terms of the letter of credit, in order to receive payment, NME was required to certify that ORH was in default of "that certain letter agreement dated November 29, 1993 by and between National Medical Enterprises, Inc. (sublessor), and Orleans Regional Hospital, L.L.C. (sublessee), relating to that certain sublease agreement between said parties of even date with said letter agreement."

On December 20, 1995, Tenet Healthcare Corporation made demand upon Hibernia for payment of the standby letter of credit, making the required certification that ORH defaulted on the terms of the November 29, 1993 letter agreement, relating to the sublease between the parties. Arguing that a November 29, 1993 letter agreement did not exist, ORH objected to the payment of the letter of credit, reasoning that there could be no default of that agreement. ORH also argued that Tenet violated the terms of the 1994 agreement to settle the dispute between the parties. ORH asserted that the demand for payment of the letter of credit was defective and also contended that any sublease between the parties was null and void and hence, payment was not due on the letter of credit.

On December 27, 1995, Hibernia filed a concursus proceeding in Bossier Parish, where ORH is domiciled, naming ORH and Tenet as defendants and citing the dispute *1293 between these parties.[3] Hibernia was allowed to deposit the $500,000.00 into the registry of the court. In the petition, Hibernia alleges that Tenet was formerly known as NME, a Nevada corporation, which previously was duly qualified to do business in the State of Louisiana, but has withdrawn from doing business in this state. Hibernia stated that NME made demand for payment of the letter of credit and ORH objected to the payment. Exhibits accompanying Hibernia's concursus petition included ORH's 1995 application for an irrevocable standby letter of credit, the letter of credit agreement between Hibernia and ORH, the standby letter of credit dated June 29, 1995, Tenet's request on December 20, 1995 for payment of the letter of credit and various items of correspondence reflecting the dispute between the parties.

ORH answered Hibernia's petition, alleging that the reference to a November 29, 1993 letter agreement between ORH and Tenet could have been erroneous and that such a document may never have existed. Therefore, ORH asserted that the letter of credit was defective on its face because ORH was not indebted to NME or Tenet under the 1993 letter agreement. ORH acknowledged that a new sublease was executed in 1994 and attached a copy of it to its answer. However, ORH asserted that it was not indebted to NME or Tenet under any circumstance because NME/Tenet had defaulted on agreements to settle disputes between the parties and therefore, any sublease between the parties was null and void.

On February 8, 1996, Tenet filed exceptions of improper venue and lis pendens. Under the exception of improper venue, Tenet argued that the concursus proceeding involved a dispute or competing claim for money due or claimed to be due on account of a transaction pertaining to immovable property in Orleans Parish and that, under the provisions of La. C.C.P. art. 4653(B), venue is proper only in Orleans Parish. La. C.C.P. art. 4653 provides as follows:

A. Except as provided in the second paragraph of this article, a concursus proceeding may be brought in any parish of proper venue, under Article 42 only, as to any claimant impleaded therein.
B. If the competing or conflicting claims are for money due or claimed to be due on account of, or otherwise involve, any sale, lease, or other transaction affecting or pertaining to immovable property or any character of interest therein, the proceeding shall be brought in the parish where the immovable property or any part thereof is situated.

On the exception of lis pendens, Tenet argued that it filed suit against ORH in Orleans Parish on these same issues on December 22, 1995. Tenet argued that its suit predated and supersedes the present concursus proceeding filed by Hibernia on December 27, 1995.

A hearing on the exceptions was held on March 7, 1996. ORH argued that this matter concerns a letter of credit, not a lease of immovable property. Therefore, according to ORH, which is domiciled in Bossier Parish, venue is proper in that parish under La. C.C.P. art. 4653(A).[4]

Tenet argued that the factual background of the case involves a sublease of immovable property in New Orleans between ORH and Tenet. Tenet asserted that the agreement between the parties specified that a letter of credit would be provided by ORH for $500,000.00 to guarantee its performance of the sublease with Tenet. Therefore, because the letter of credit was given to secure performance of a sublease of property in Orleans Parish, Tenet argued that venue was proper in Orleans Parish and was not proper in Bossier Parish. Hibernia did not object to a transfer of the matter to Orleans Parish.

*1294 The trial court found that the action involved a sublease of property in Orleans Parish and, under the mandatory provisions of La. C.C.P. art. 4653(B), the action must be brought in Orleans Parish. The trial court ordered the matter transferred to that parish and ordered that the ruling on the exception of lis pendens be deferred for decision by the appropriate court in Orleans Parish.

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Cite This Page — Counsel Stack

Bluebook (online)
682 So. 2d 1291, 1996 WL 631041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibernia-nat-bank-v-orleans-reg-hosp-lactapp-1996.