Omni Energy Services Corp. v. Rhyne

149 So. 3d 1282, 14 La.App. 3 Cir. 322, 2014 La. App. LEXIS 2864, 2014 WL 5350477
Louisiana Court of Appeal·Decided October 15, 2014·No. Nos. 14-322·Published·Cited by 1 cases

Opinion

PETERS, J.

|TIn the second of these three consolidated suits, Robert H. Rhyne, Jr. and Brent Trauth appeal a trial court judgment granting peremptory exceptions of no cause of action, whereby their monetary claims against a number of other parties to this litigation were dismissed. We set forth the factual background in OMNI Energy Services Corp. v. Rhyne, 14-251 (La.[1285]*1285App. 3 Cir.10/15/14), 150 So.3d 509, 2014 WL 5151392, and will address this issue in this opinion.

In this appeal, Rhyne and Trauth assert five assignments of error, all of which relate to trial court rulings in Lafayette Parish Suit I:

1. The Trial Court erred when it granted Exceptions of Prescription dismissing all of Rhyne and Trauth’s claims against Omni Directors White, Kaufman, Eckert, and Omni Officer, Recatto;
2. The Trial Court erred when it granted Exceptions of Prescription dismissing all of Rhyne and Trauth’s claims against Directors Sciotto, Colson and Gerevas except claims “outside their capacity” as Officers/Directors;
3. The Trial Court erred when it failed to recognize that the Officer/Director Defendants were solidarity liable with Omni for all of Rhyne/ Trauth’s damages resulting from Omni’s breach of Rhyne and Trauth’s agreements, when Omni’s breach was knowingly, intentionally, and without justification caused by Officer/Director Defendants;
4. Once the Trial Court ruled that the St. Martin Court’s venue analysis was fatally flawed by failing to apply 23:921, the Trial Court erred by then adopting the flawed judgment as to Sciotto, Colson, and Gerevas flowing therefrom. The Trial Court erred by stating, “I am not going to change his (Judge Comeaux’s) ruling”, when it was the Trial Court’s obligation to do so under Land v. Vidrine.
5.The Trial Court erred when it failed to recognize that the parties entered into a Consent Judgment to transfer the St. Martin Case to Lafayette on the basis of forum nonconveniens, and thus Appellees agreed that venue was proper in St. Martin.

1 .OPINION

All of the assignments of error relate to the trial court judgment finding that the claims against all of the director/officer defendants, in their capacity as OMNI directors/officers, had prescribed. Because they are so interwoven, we will address these assignments of error together.1

At the outset, we note that in its April 27, 2011 judgment, the St. Martin Parish trial court chose to dismiss the claims at issue rather than to assert its discretion pursuant to La.Code Civ.P. art. 932(B) and transfer them to Lafayette Parish. Once the trial court rendered judgment, the St. Martin Parish Clerk of Court mailed notice of the judgment to all parties on Friday, April 29, 2011. The delay for applying for a new trial is seven days exclusive of legal holidays, and the delay commences to run the day after notice is mailed by the clerk. La.Code Civ.P. art. 1974. Thus, the delay for applying for a new trial commenced to run on Monday, May 2, 2011, and any party wishing to seek a new trial on any part of the trial court’s ruling had until May 10, 2011, in which to do so. With just one day left in the seven-day period, the St. Martin Parish Suit was removed to federal court by Mager and Cove Partners and remained there until it [1286]*1286was returned to St. Martin Parish on Friday, May 4, 2012.2

After the matter returned to St. Martin Parish, the only relief initially sought by any party to the litigation was sought by Mager, Cove Partners, Sciotto, Colson, Gerevas, and XL Specialties, who filed requests for additional time in which to plead to the original petition of Rhyne and Trauth. No litigant timely filed a | ..¡motion for new trial and a trial court has neither the discretion to extend the new-trial delay nor “the authority to grant a new trial, recall, modify or set aside a judgment when an application for a new trial has not been timely filed.” South La. Bank v. White, 577 So.2d 349, 350 (La.App. 1 Cir.1991); Madere v. St. John the Baptist Parish, 04-1036 (La.App. 5 Cir. 3/1/05), 900 So.2d 73. Furthermore, no litigant sought a supervisory writ to have the venue decision reviewed by a higher court and, as pointed out in Land v. Vidrine, 10-1342, p. 7 (La.3/15/11), 62 So.3d 36, 40, “[f|ailure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto.” Thus, the April 27, 2011 judgment was a final judgment, and the transfer of the remaining issues to Lafayette Parish while the motions for new trial were still pending had no effect on that finality status.

However, in Land, the supreme court recognized a difference between the finality of a venue judgment for forum purposes and the effect that same judgment might have on prescription or preemption issues. In Land, the trial court, in the Nineteenth Judicial District in East Baton Rouge Parish, granted the defendant’s declinatory exception of venue and, instead of dismissing the plaintiffs’ case, exercised its discretion under La.Code Civ.P. art. 932(B) and transferred it to the Fifteenth Judicial District in Lafayette Parish. Once in Lafayette Parish, the defendant filed an exception of peremption. Applying the “law of the case” doctrine,3 the trial court in Lafayette Parish concluded that it could not consider the correctness of the East Baton Rouge Parish venue ruling because the plaintiffs had waived any objection to the transfer of the litigation by failing to apply for supervisory writs. Land, 62 So.3d 36. It then granted the peremption exception and dismissed the plaintiffs’ suit on its finding that (1) based on the East Baton RRouge Parish venue judgment and without regard to the correctness thereof, suit had not been timely filed in a court of proper jurisdiction and venue, and (2) the Lafayette Parish filing was untimely on its face. The plaintiffs appealed, and this court affirmed the trial court decision. Land v. Vidrine, 09-1418 (La.App. 3 Cir.4/7/10), 30 So.3d 1188.

In reversing both the trial court and this court, the supreme court affirmed the finality of the East Baton Rouge Parish decision on venue, but reversed the application of the “law of the case” doctrine on the preemption issue, finding that the Lafayette Parish trial court was still required to “make an independent venue ruling for the limited purpose of deciding the exception of preemption.” Land, 62 So.3d at 37. The supreme court explained its decision with regard to the independent ruling required, by noting that “[cjhoice of venue is a gateway consideration that is separate [1287]*1287from the merits of a case and addresses only the initial inquiry of where to litigate.” Id. at 39. The supreme court further stated:

In the absence of a legal barrier precluding consideration of the issue, we find the East Baton Rouge Parish trial court’s venue ruling should have been merely presented as evidence in support of the defendant’s exception of preemption, not as a conclusion of law. The Lafayette Parish trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum.

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Omni Energy Services Corp. v. Rhyne, 149 So. 3d 1282, 14 La.App. 3 Cir. 322, 2014 La. App. LEXIS 2864, 2014 WL 5350477 (La. Ct. App. 2014).

149 So. 3d 1282 (Omni Energy Services Corp. v. Rhyne) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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