NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-1371
SOUTHWEST RICE MILL CO., INC.
VERSUS
KURT SMITH, ET AL.
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 84,722 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
J. Clay Lejeune P. O. Box 1919 Crowley, LA 70527 (337) 788-1505 Counsel for Plaintiff/Appellant: Southwest Rice Mill Co., Inc. Errol D. Deshotels Deshotels, Mouser & Deshotels P. O. Box 399 Oberlin, LA 70655 (337) 639-4309 Counsel for Defendant/Appellee: Kurt Smith
Merrick J. (Rick) Norman, Jr. Norman Business Law Center 145 East Street Lake Charles, LA 70601 (337) 436-7787 Counsel for Defendant Appellee: Louisiana Farm Bureau Marketing Assoc., Inc.
Michael B. Holmes P. O. Drawer 790 Kinder, LA 70648 (337) 738-2568 Counsel for Defendant/Appellee: Bertrand Rice, L.L.C. GREMILLION, Judge.
The plaintiff, Southwest Rice Mill Co., Inc., appeals the judgment of the
trial court granting an exception of venue in favor of the defendant, Bertrand Rice,
L.L.C. finding that Acadia Parish was not a proper venue in this matter. We affirm
as amended.
FACTS
Southwest Rice filed a Petition for Breach of Contract and For Damages
against Kurt Smith, Louisiana Farm Bureau Marketing, and Bertrand Rice seeking
damages for breach of contract by Smith and Louisiana Farm Bureau, and tortious
interference with contract and violation of unfair trade practices by Bertrand Rice.
In its petition, it alleged that Smith and Louisiana Farm Bureau breached a June 24,
2005 contract for the sell of rice by later agreeing to sell the same rice crop to
Bertrand Rice. As a result, Southwest Rice Mill, who had already contracted to sell
the rice to a third party, had to replace the rice at an increased expense and at a loss
of additional profits.
In response, Smith and Bertrand Rice filed exceptions of improper venue
objecting to venue in Acadia Parish. Following a hearing on the exceptions, the trial
court maintained the exceptions and gave Southwest Rice fifteen days to transfer its
suit to a proper venue. Thereafter, Southwest Rice amended its petition alleging
additional facts. The exception of improper venue was reurged by Bertrand Rice.
After a hearing, the trial court maintained the exception. This appeal by Southwest
Rice followed.
1 ISSUES
On appeal, Southwest Rice raises two assignments of error committed
by the trial court. It argues that the trial court erred in finding that Acadia Parish was
an improper venue for this matter and by not allowing it the opportunity to remove
the matter to a court of proper venue.
EXCEPTION OF VENUE
First, Southwest Rice argues that Acadia Parish was a proper venue for
its claim against Bertrand Rice. It argues that Smith, Louisiana Farm Bureau, and
Bertrand Rice are jointly and solidarily liable for the damages it suffered, thus, as
venue proper in Acadia Parish as to Smith and Louisiana Farm Bureau, then it is
proper as to Bertrand Rice.
Because venue is a question of law, the appellate court should conduct a de novo review of the record. Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La.C.C.P. art. 41. Generally, an action against an individual who is domiciled in the state shall be brought in the parish of his domicile, and an action against a domestic limited liability company shall be brought in the parish where its registered office is located. La.C.C.P. art. 42(1) and (2). However, these general rules are subject to certain exceptions, which are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. La.C.C.P. art 43[.] A plaintiff may choose any supplementary venue provided by law that fits the particular circumstances of his claims.
Novelaire Technologies, L.L.C. v. Harrison, 06-94, p. 8 (La.App. 5 Cir. 7/25/06), 939
So.2d 437, 442 (citations omitted).
The pertinent venue exceptions at issue in this matter are La.Code Civ.P.
arts. 73, 74, and 76.1. Article 73(A) provides:
An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is
2 made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish were the plaintiff is domiciled if the parish of plaintiff’s domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3202.
In addition, the plaintiff must also allege facts sufficient to prove that the defendants
are jointly or solidarily obligated. Price v. Roy O. Martin Lumber Co., 04-227, 03-
2647, 03-2699-71 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, writ denied, 05-1390 (La.
1/27/06), 922 So.2d 543.
Article 74 provides in part that “[a]n 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.” Article 76.1
provides that “[a]n action on a contract may be brought in the parish where the
contract was executed or the parish where any work or service was performed or was
to be performed under the terms of the contract.”
After performing a de novo review of the record, we find that the trial
court correctly found that Acadia Parish was an improper venue as to Bertrand Rice.
In its initial petition, Southwest Rice stated that Bertrand Rice was a Louisiana
limited liability company authorized to do and doing business in Acadia Parish, with
its current mailing address in Elton, Jefferson Davis Parish, Louisiana. It further
alleged that its contract to purchase the rice was breached as a result of Bertrand
Rice’s tortious interference with the contract and the violation of unfair trade
practices.
In its original and amended petitions, Southwest Rice alleged that Smith
and Louisiana Farm Bureau’s liability arose from breach of contract. It further
3 alleged that Bertrand Rice was liable to it for breach of contract, tortious interference
of contract, and unfair trade practices. It then alleged that all of the defendants were
jointly and solidarily liable to it for the resulting damages.
However, we find no solidarity between Bertrand Rice and the other two
defendants. Louisiana Civil Code Article 2324(A) provides, “He who conspires with
another person to commit an intentional or willful act is answerable, in solido, with
that person, for the damage caused by such act.” Southwest Rice’s claims against
Smith and Louisiana Farm are contractual in nature, whereas its claims against
Bertrand Rice are tortious in nature. As solidarity only lies for intentional acts, there
is no solidarity between Bertrand Rice and the other two defendants. Pursuant to
Article 76.1, venue would be appropriate as to Smith and Louisiana Farm Bureau in
the parish where the contract was executed or where any action was performed or was
to be performed pursuant to its terms.
In cases involving tortious interference of contracts and unfair trade
practices, venue has been found appropriate pursuant to Article 74 where the
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-1371
SOUTHWEST RICE MILL CO., INC.
VERSUS
KURT SMITH, ET AL.
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 84,722 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE **********
GLENN B. GREMILLION JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Glenn B. Gremillion, Judges.
AFFIRMED AS AMENDED.
J. Clay Lejeune P. O. Box 1919 Crowley, LA 70527 (337) 788-1505 Counsel for Plaintiff/Appellant: Southwest Rice Mill Co., Inc. Errol D. Deshotels Deshotels, Mouser & Deshotels P. O. Box 399 Oberlin, LA 70655 (337) 639-4309 Counsel for Defendant/Appellee: Kurt Smith
Merrick J. (Rick) Norman, Jr. Norman Business Law Center 145 East Street Lake Charles, LA 70601 (337) 436-7787 Counsel for Defendant Appellee: Louisiana Farm Bureau Marketing Assoc., Inc.
Michael B. Holmes P. O. Drawer 790 Kinder, LA 70648 (337) 738-2568 Counsel for Defendant/Appellee: Bertrand Rice, L.L.C. GREMILLION, Judge.
The plaintiff, Southwest Rice Mill Co., Inc., appeals the judgment of the
trial court granting an exception of venue in favor of the defendant, Bertrand Rice,
L.L.C. finding that Acadia Parish was not a proper venue in this matter. We affirm
as amended.
FACTS
Southwest Rice filed a Petition for Breach of Contract and For Damages
against Kurt Smith, Louisiana Farm Bureau Marketing, and Bertrand Rice seeking
damages for breach of contract by Smith and Louisiana Farm Bureau, and tortious
interference with contract and violation of unfair trade practices by Bertrand Rice.
In its petition, it alleged that Smith and Louisiana Farm Bureau breached a June 24,
2005 contract for the sell of rice by later agreeing to sell the same rice crop to
Bertrand Rice. As a result, Southwest Rice Mill, who had already contracted to sell
the rice to a third party, had to replace the rice at an increased expense and at a loss
of additional profits.
In response, Smith and Bertrand Rice filed exceptions of improper venue
objecting to venue in Acadia Parish. Following a hearing on the exceptions, the trial
court maintained the exceptions and gave Southwest Rice fifteen days to transfer its
suit to a proper venue. Thereafter, Southwest Rice amended its petition alleging
additional facts. The exception of improper venue was reurged by Bertrand Rice.
After a hearing, the trial court maintained the exception. This appeal by Southwest
Rice followed.
1 ISSUES
On appeal, Southwest Rice raises two assignments of error committed
by the trial court. It argues that the trial court erred in finding that Acadia Parish was
an improper venue for this matter and by not allowing it the opportunity to remove
the matter to a court of proper venue.
EXCEPTION OF VENUE
First, Southwest Rice argues that Acadia Parish was a proper venue for
its claim against Bertrand Rice. It argues that Smith, Louisiana Farm Bureau, and
Bertrand Rice are jointly and solidarily liable for the damages it suffered, thus, as
venue proper in Acadia Parish as to Smith and Louisiana Farm Bureau, then it is
proper as to Bertrand Rice.
Because venue is a question of law, the appellate court should conduct a de novo review of the record. Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La.C.C.P. art. 41. Generally, an action against an individual who is domiciled in the state shall be brought in the parish of his domicile, and an action against a domestic limited liability company shall be brought in the parish where its registered office is located. La.C.C.P. art. 42(1) and (2). However, these general rules are subject to certain exceptions, which are an extension, supplement, and legal part of the general venue provisions, rather than exceptions requiring strict construction. La.C.C.P. art 43[.] A plaintiff may choose any supplementary venue provided by law that fits the particular circumstances of his claims.
Novelaire Technologies, L.L.C. v. Harrison, 06-94, p. 8 (La.App. 5 Cir. 7/25/06), 939
So.2d 437, 442 (citations omitted).
The pertinent venue exceptions at issue in this matter are La.Code Civ.P.
arts. 73, 74, and 76.1. Article 73(A) provides:
An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is
2 made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish were the plaintiff is domiciled if the parish of plaintiff’s domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3202.
In addition, the plaintiff must also allege facts sufficient to prove that the defendants
are jointly or solidarily obligated. Price v. Roy O. Martin Lumber Co., 04-227, 03-
2647, 03-2699-71 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, writ denied, 05-1390 (La.
1/27/06), 922 So.2d 543.
Article 74 provides in part that “[a]n 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.” Article 76.1
provides that “[a]n action on a contract may be brought in the parish where the
contract was executed or the parish where any work or service was performed or was
to be performed under the terms of the contract.”
After performing a de novo review of the record, we find that the trial
court correctly found that Acadia Parish was an improper venue as to Bertrand Rice.
In its initial petition, Southwest Rice stated that Bertrand Rice was a Louisiana
limited liability company authorized to do and doing business in Acadia Parish, with
its current mailing address in Elton, Jefferson Davis Parish, Louisiana. It further
alleged that its contract to purchase the rice was breached as a result of Bertrand
Rice’s tortious interference with the contract and the violation of unfair trade
practices.
In its original and amended petitions, Southwest Rice alleged that Smith
and Louisiana Farm Bureau’s liability arose from breach of contract. It further
3 alleged that Bertrand Rice was liable to it for breach of contract, tortious interference
of contract, and unfair trade practices. It then alleged that all of the defendants were
jointly and solidarily liable to it for the resulting damages.
However, we find no solidarity between Bertrand Rice and the other two
defendants. Louisiana Civil Code Article 2324(A) provides, “He who conspires with
another person to commit an intentional or willful act is answerable, in solido, with
that person, for the damage caused by such act.” Southwest Rice’s claims against
Smith and Louisiana Farm are contractual in nature, whereas its claims against
Bertrand Rice are tortious in nature. As solidarity only lies for intentional acts, there
is no solidarity between Bertrand Rice and the other two defendants. Pursuant to
Article 76.1, venue would be appropriate as to Smith and Louisiana Farm Bureau in
the parish where the contract was executed or where any action was performed or was
to be performed pursuant to its terms.
In cases involving tortious interference of contracts and unfair trade
practices, venue has been found appropriate pursuant to Article 74 where the
complained of conduct occurred, not where the plaintiff suffered subsequent
consequences. Long Leaf Vending, Inc. v. La. Coca-Cola Bottling Co., 97-1359
(La.App. 4 Cir. 4/8/98), 709 So.2d 366. In this instance, venue would be proper
where ever the contract between Smith and Bertrand Rice was executed. Presumably
this would be either in Allen Parish (Smith) or Jefferson Davis Parish (Bertrand
Rice), but certainly not in Acadia Parish (Southwest Rice). Accordingly, we find no
error in the trial court’s order maintaining Bertrand Rice’s exception of venue.
4 DISMISSAL
In its second assignment of error, Southwest Rice argues that the trial
court erred by not allowing it the opportunity to transfer its suit to a parish of proper
venue as to Bertrand Rice. Although the trial court allowed Southwest Rice fifteen
days to transfer its suit after maintaining the first exception of improper venue, it
failed to do so after maintaining the exception at the reurging of Bertrand Rice.
Louisiana Code Civil Procedure Article 932(B) provides:
If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed; except that if an action has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.
Comment (b) to La.Code Civ.P. art. 932 states that “[i]t is contemplated that dismissal
would result only in those cases where such a transfer would not be possible or would
not be conducive to the administration of justice. Such a dismissal would not
preclude the filing of an action in the proper court.” See Vallejo Enter., L.L.C. v.
Boulder Image, Inc., 05-2649 (La.App. 1 Cir. 11/3/06), 950 So.2d 832.
In this instance, we believe that the interests of justice requires that
Southwest Rice be granted the opportunity to transfer its claims against Bertrand Rice
to a court of proper venue. Accordingly, the judgment of the trial court is amended
to grant it fifteen days in which to transfer those claims.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is amended to
grant the plaintiff-appellant, Southwest Rice Mill Co., Inc., fifteen days in which to
transfer its claims against the defendant, Bertrand Rice, L.L.C., to a court of proper
5 venue. The judgment is affirmed in all other respects. The costs of this appeal are
assessed to Southwest Rice Mill Co., Inc.
This opinion is NOT DESIGNATED FOR PUBLICATION, Uniform Rules—Courts of Appeal, Rule 2-16.3.