Keele v. Knecht

621 So. 2d 106, 1993 WL 217223
CourtLouisiana Court of Appeal
DecidedJune 23, 1993
Docket24874-CA
StatusPublished
Cited by11 cases

This text of 621 So. 2d 106 (Keele v. Knecht) 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
Keele v. Knecht, 621 So. 2d 106, 1993 WL 217223 (La. Ct. App. 1993).

Opinion

621 So.2d 106 (1993)

Paul Lee KEELE and Sherry Beason Keele, Plaintiffs-Appellants,
v.
James KNECHT, M.D., Defendant-Appellee.

No. 24874-CA.

Court of Appeal of Louisiana, Second Circuit.

June 23, 1993.
Rehearing Denied August 12, 1993.

*107 Richard E. Hiller, Shreveport, Moore, Walters & Shoenfelt by Oscar L. Shoenfelt, III, Baton Rouge, for plaintiffs-appellants.

Mayer, Smith & Roberts by Kim Purdy, Shreveport, for defendant-appellee.

Before MARVIN, LINDSAY and STEWART, JJ.

LINDSAY, Judge.

In this wrongful death action, the plaintiffs, Paul Lee and Sherry Beason Keele, appeal from a trial court judgment sustaining an exception of improper venue filed by the defendant, Dr. James Knecht. For the following reasons, we affirm.

FACTS

The plaintiffs are residents of Sabine Parish. On January 23, 1990, Sherry Keele took her daughter, Lacy, to Dr. Knecht, a physician who is domiciled and practices in Natchitoches Parish. The child had a sore throat, nausea, and a stomachache. The defendant administered Tylenol to the child in his office and instructed Mrs. Keele to continue to give the child prescribed doses of Tylenol.

On January 26, 1990, the child's condition had deteriorated and the Keeles took her to the emergency room at Natchitoches Parish Hospital. She was transferred to Schumpert Medical Center in Shreveport, which is located in Caddo Parish. The plaintiffs allege that the child was diagnosed as having strep throat, severe dehydration and Tylenol poisoning. On January 29, 1990, the child died at Schumpert Medical Center.

On November 27, 1990, the Keeles filed a petition for review of the case by a medical review panel. LSA-R.S. 40:1299.41 et seq. The panel rendered its decision on or about February 25, 1992. On April 24, 1992, the plaintiffs filed suit in Caddo Parish against Dr. Knecht for the wrongful death of their child.

Dr. Knecht filed an exception of improper venue, arguing that he is a domiciliary of Natchitoches Parish and all treatment which he rendered to the child occurred in Natchitoches Parish.

The hearing on the exception was held on July 2, 1992. Following the hearing, the trial court ruled that, even though the child died in Caddo Parish, venue was not proper in that parish, but rather was proper in *108 Natchitoches Parish. The plaintiffs appealed.

VENUE

The plaintiffs contend that the trial court erred in finding that venue for their wrongful death action was Natchitoches Parish, rather than Caddo Parish. They argue that, under the applicable provisions of the Code of Civil Procedure and the jurisprudence interpreting those articles, the damage, that is, the death of the child, occurred in Caddo Parish and therefore that parish is the proper venue for this wrongful death action. This argument is meritless.

Venue is defined in LSA-C.C.P. Art. 41 as follows:

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.

The general rules of venue are set forth in LSA-C.C.P. Art. 42 which provides in pertinent part:

The general rules of venue are that an action against:
(1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish or his residence.

The general rules of venue set forth in LSA-C.C.P. Art. 42 are subject to the exceptions provided in Articles 71 through 85 and as otherwise provided by law. LSA-C.C.P. Art. 43.

LSA-C.C.P. Art. 74 provides an exception to the general rules of venue:

An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur.
As used herein, the words "offense or quasi offense" include a nuisance and a violation of Article 667 of the Civil Code.

Since exceptions to the general venue rules are in derogation of a common right, they must be strictly construed and the party claiming the benefit of an exception must bring himself clearly within the exception. Hawthorne Oil and Gas Corporation v. Continental Oil Company, 377 So.2d 285 (La.1979); Fogleman Truck Line, Inc. v. Southern Bulk Carriers, Inc. 532 So.2d 226 (La.App. 3rd Cir.1988).

LSA-C.C.P. Art. 74 was never intended by the redactors thereof or by the legislature to permit a plaintiff to litigate in any parish of the state capriciously. Coursey v. White, 184 So.2d 625 (La.App. 4th Cir.1966).

The decision as to which parish is the proper venue for this case turns on the interpretation of the phrases "in the parish where the wrongful conduct occurred," or "in the parish where the damages were sustained." LSA-C.C.P. Art. 74, supra. The plaintiffs argue that the damage sustained was the death of their child and that because the death occurred in Caddo Parish, that is the parish of proper venue. The defendant argues that because all treatment and/or negligence which the plaintiffs claim may have caused their child's death occurred in Natchitoches Parish, that is the parish of proper venue.

The plaintiffs rely on Laborde v. DeBlanc, 532 So.2d 829 (La.App. 4th Cir. 1988), in which the Fourth Circuit granted writs from a lower court decision dealing with venue in a wrongful death case. The appellate court ruled that because the deaths occurred in Plaquemines Parish, venue was proper in that parish. The court found that LSA-C.C.P. Art. 74 allowed the plaintiffs to bring their action in Plaquemines Parish where the deaths occurred because that was the parish where the damages were sustained.

However, the authority of Laborde is questionable. The case contained no discussion of the facts upon which the decision was based. Further, the holding in Laborde, that the proper venue for a wrongful death action is the parish where the death occurred, is based upon Broussard v. Liberty Mutual Insurance Company, *109 210 So.2d 411 (La.App. 3rd Cir.1968). Broussard is a products liability case, not a wrongful death case.

In Broussard, the plaintiff's bull ate allegedly poisoned feed manufactured by the defendant feed company. The defendant was domiciled in Iberia Parish. The plaintiff's bull ate the feed and died in Vermilion Parish. The court held that venue was proper in either Iberia or Vermilion Parish and the plaintiff had the right to choose between them in bringing suit.

The plaintiffs also rely on McDaniel v. Reed, 613 So.2d 758 (La.App. 4th Cir.1993). In that case, the Fourth Circuit reaffirmed its decision in Laborde, holding that in wrongful death actions, proper venue lies in the parish where the death occurred. In McDaniel, the decedent was treated by a physician in Franklin Parish at the Franklin Medical Center. He was then sent to E.A. Conway Hospital in Ouachita Parish where he was treated by a second physician. The decedent was later transferred to Charity Hospital in Orleans Parish where the third physician performed surgery. The decedent died in Orleans Parish. The plaintiffs filed suit against all three physicians and the hospitals in Orleans Parish.

Franklin Medical Center claimed that under LSA-R.S. 13:5104(B) and 46:1063, all suits against it must be filed in Franklin Parish.

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Bluebook (online)
621 So. 2d 106, 1993 WL 217223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keele-v-knecht-lactapp-1993.