Kite Bros. LLC v. Kite Rv, LLC

• Court: Louisiana Court of Appeal
• Decided: May 28, 2014
• Docket: CA-0014-0374
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 14-374

KITE BROS., LLC

VERSUS

KITE RV, LLC, ET AL.

**********

APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2013-0568 HONORABLE F. RAE DONALDSON SWENT, DISTRICT JUDGE

SHANNON J. GREMILLION

JUDGE

Court composed of, Sylvia R. Cooks, Jimmie C. Peters, and Shannon J. Gremillion, Judges.

APPEAL DISMISSED.

Kenneth Michael Wright Attorney at Law 203 West Clarence St. Lake Charles, LA 70601 (337) 439-6930 COUNSEL FOR DEFENDANTS/APPELLANTS: Alan Kite Kite RV, LLC Scott James Scofield Scofield, Gerard Post Office Drawer 3028 Lake Charles, LA 70602 (337) 433-9436 COUNSEL FOR PLAINTIFF/APPELLEE: Kite Bros., LLC GREMILLION, Judge.

This court issued, sua sponte, a rule ordering the Defendants-Appellants,

Alan Kite and Kite RV, L.L.C., to show cause, by brief only, why the appeal in this

case should not be dismissed for having been taken from a non-appealable,

interlocutory judgment. For the reasons assigned, we hereby dismiss the appeal.

Plaintiff, Kite Bros., L.L.C., filed suit against Defendants in Beauregard

Parish seeking a money judgment and recognition of a vendor’s lien. In response

to Plaintiff’s suit, Defendants filed an exception improper venue. On October 11,

2013, a hearing was held on Defendants’ exception of improper venue. On

November 7, 2013, trial court issued written reasons for the denial of Defendants’

exception of improper venue. Citing La.Code Civ.P. art. 45, which governs

conflicts between venue articles, the trial court held that because Defendants did

not argue that the exclusive venue provisions set forth in La.Code Civ.P. arts. 78-

84, 86, and 87 were applicable to the instant case, Plaintiff is permitted to file its

lawsuit in any venue provided by any applicable venue article. Based on its

finding that venue would be proper in Beauregard Parish with the application of

either La.Code Civ.P. art. 42(1) or (2), the trial court denied Defendants’ exception

of improper venue via its written reasons of November 7, 2013.

On December 27, 2013, Defendants filed a motion for appeal; however, the

trial court denied the motion because, at that point, no written judgment had been

signed with regard to the exception of improper venue. Also, on December 27,

2013, Defendants filed a notice of intent to seek writs from the trial court’s

November 7, 2013, decision denying their exception of improper venue.

Subsequently, on January 6, 2014, Defendants filed in this court a writ application

which was assigned this court’s docket number 14-16. On January 16, 2014, this court issued a ruling denying Defendants’ writ application based on this court’s

finding that Defendants had failed to show that the trial court erred in denying

Defendants’ exception of improper venue.

Meanwhile, on January 6, 2014, Defendants filed in the trial court an

exception of lis pendens, and a hearing was held on the exception on January 7,

2014. On January 7, 2014, the trial court signed a judgment denying Defendants’

exception of lis pendens and formally denying Defendants’ exception of improper

venue. On January 21, 2014, the trial court issued, per defendants’ request, written

reasons for its January 7, 2014, judgment. On January 13, 2014, Defendants filed a

motion to appeal the trial court’s judgment of January 7, 2014. The order of

appeal was signed on February 28, 2014, and the appeal record was lodged in this

court on April 4, 2014. As stated above, upon the lodging of the record in this

appeal, this court issued a rule for Defendants to show cause why the appeal should

not be dismissed as having been taken from a non-appealable, interlocutory

judgment.

In their response to this court’s rule to show cause order, Defendants

contend that the question before this court is whether a ruling denying an exception

of improper venue can be appealed or whether a party’s only recourse for seeking

review of the denial of such an exception is to file an application for supervisory

review. Defendants note that they have sought review of the trial court’s ruling

denying their exception of improper venue by filing both an appeal and a writ

application. Citing Patterson v. Alexander & Hamilton, Inc., 02-1230 (La.App. 1

Cir. 4/2/03), 844 So.2d 412, Defendants maintain that while a judgment denying an

exception of improper venue is an interlocutory judgment which would not

2 normally be appealable, a judgment denying an exception of improper venue may

be considered appealable because it may cause irreparable harm.

Plaintiff has submitted a brief in reply to Defendants’ response to this

court’s rule to show cause order. Plaintiff contends that while Defendants devote

their entire response to the rule to show cause order to a discussion of the

exception of improper venue, the ruling that is actually being appealed is the trial

court’s ruling denying Defendants’ exception of lis pendens. However, Plaintiff

asserts that a judgment denying an exception of lis pendens is not appealable.

Furthermore, Plaintiff asserts that pursuant to La.Code Civ.P. art. 925(C),

Defendants waived their right to assert an exception of lis pendens because they

did not raise the exception of lis pendens when they filed their exception of

improper venue in July 2013.

With regard to the exception of improper venue, Plaintiff contends that

Defendants cannot appeal the trial court’s judgment denying that exception.

Plaintiff notes that before La.Code Civ.P. art. 2083 was amended in 2005, that

article allowed parties to appeal an “interlocutory judgment which may cause

irreparable injury.” However, Plaintiff points out that in 2005, Article 2083(C)

was amended to provide that “[a]n interlocutory judgment is appealable only when

expressly provided by law.” Plaintiff cites Land v. Vidrine, 10-1342 (La. 3/15/11),

62 So.3d 36, in support of the assertion that challenges to venue rulings can only

be made via applications for supervisory writs. In the instant case, Relator notes

that Defendants have already filed, under this court’s docket number 14-16, a writ

application seeking review of the trial court’s ruling denying Defendants’

exception of improper venue. Plaintiff also notes that in writ application number

14-16, this court upheld the trial court’s ruling on Defendants’ exception of

3 improper venue. According to Plaintiff, Defendants are not entitled to “a second

bite of the appellate review apple” with regard to the venue ruling.

We note that the only ruling addressed in Defendants’ rule to show cause

order and in their appellate brief is the ruling on the exception of improper venue.

As such, we find that Relator seeks to appeal only that portion of the January 7,

2014, judgment which deals with the denial of their exception of improper venue.

However, we find that a judgment denying the exception of improper venue is an

interlocutory ruling and that the proper procedural means for seeking review of

that ruling is to file an application for supervisory relief. See La.Code Civ.P. art.

2083; see also Land, 62 So.3d 36. Furthermore, as noted by Plaintiff, Defendants

previously filed with this court a writ application wherein they obtained appellate

review of the trial court’s ruling denying their exception of improper venue.

Therefore, we find that it is unnecessary to permit the filing of another writ

application challenging this judgment as this court has already considered this

matter.

For the foregoing reasons, we dismiss the appeal at Defendants’ cost.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.