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The Cottonport Bank v. LSJ, L.L.C.

Court of Appeals of Louisiana, Third Circuit

February 2, 2017

THE COTTONPORT BANK
v.
LSJ, L.L.C., ET AL.

         ON APPLICATION FOR SUPERVISORY WRITS FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, DOCKET NO. 2015-2516 HONORABLE KERRY SPRUILL, PRESIDING

         WRIT DENIED.

          Miche Moreau Anthony J. Roy, III Roy & Roy Law Office ATTORNEY FOR PETITIONER/RESPONDENT The Cottonport Bank

          Dennis A. Pennington Michael J. Harig Pennington & Martinez ATTORNEY FOR DEFENDANTS/APPLICANTS LSJ, L.L.C., Southeastern Crane, L.L.C., Flintstone Development, L.L.C., Cade Dubois, Ashley Dubois, Clyde Dubois, Jr. and Dawn Dubois

          Court composed of Sylvia R. Cooks, Marc T. Amy and Billy Howard Ezell, Judges.

          SYLVIA R. COOKS JUDGE

         In this writ application, the relators-defendants, LSJ, L.L.C., Southeastern Crane, L.L.C., Flintstone Development, L.L.C., Cade Dubois, Ashley Dubois, Clyde Dubois, Jr. and Dawn Dubois, seek supervisory writs from the district court's judgment overruling their exceptions of improper venue. For the following reason, we find no error in the district court's ruling, and deny the writ application.

         FACTS AND PROCEDURAL HISTORY

         This case arises from the default on Promissory Notes securing loans from respondent, The Cottonport Bank, to Major Industry Service, Inc. (MIS), a company in the business of selling and leasing cranes. Clyde Dubois, Jr. (Dubois), a relator herein and owner of MIS, was the guarantor for the loans, and a security interest in MIS's movable equipment and property, namely cranes, was the collateral for the loans. When MIS and Dubois defaulted on the loans, Cottonport Bank obtained a judgment on March 11, 2016 against them in the amount of $2, 213, 950.07 (which includes attorney fees). In its judgment, the trial court recognized that Cottonport Bank had a security interest in approximately 186 movables constituting its collateral. This litigation took place in the Twentieth Judicial District Court.

         Cottonport Bank asserts, after the default, it learned that: (1) the collateral was not owned, controlled or managed by MIS, contrary to Dubois' claim, (2) Dubois owned another company, LSJ, L.L.C. (LSJ) and moved assets back and forth between the two companies, and (3) MIS began to operate under a different name, Southeastern Crane, L.L.C. (Southeastern Crane). Out of the 186 items listed as collateral in the default judgment, the bank was able to locate about ten pieces of equipment in Baton Rouge. Cottonport Bank subsequently filed a Petition for Conversion, Fraud, Deceit, Piercing the Corporate Veil, Misrepresentation, and Unfair or Deceptive Practices against companies owned by the relators, including Dubois, and companies owned by Dubois and family members involved in those companies. The respective companies and family members were domiciled in four different parishes. That petition was filed in the Twelfth Judicial District Court, Avoyelles Parish, on January 13, 2016. Cottonport Bank asserted there was a single elaborate scheme devised by Dubois to conceal assets constituting the collateral. Therefore, rather than file four separate lawsuits in four separate parishes regarding the same set of facts, Cottonport Bank filed its lawsuit in Avoyelles Parish. Cottonport Bank acknowledged it was not aware of where the wrongful conduct occurred; thus, it filed suit in Avoyelles Parish, contending that was the site where the damages were sustained. They maintain this complies with La.Code Civ.P. art. 74, which allows suit to be filed where the damages were sustained or where the wrongful conduct occurred.

         In response, the relators filed respective exceptions of improper venue.[1] A hearing was held on April 4, 2016, and the matter was taken under advisement. On June 6, 2016, the trial court denied the exceptions in a written judgment and issued written reasons for ruling. The trial court specifically noted there were "limited facts presented in this case." The trial court concluded the record was devoid of any evidence of any wrongful conduct occurring or damages sustained "in any other parish than Avoyelles Parish."

         On June 16, 2016, the relators filed a motion for new trial for the purpose of allowing the trial court to reconsider its ruling in light of this court's ruling in D&D Drilling & Exploration, Inc. v. XTO Energy, Inc., 15-626, 15-631 (La.App. 3 Cir. 5/4/16), 191 So.3d 1166, writ denied, 16-1540 (La. 11/18/16), __So.3d__. The relators also filed a motion to stay the proceeding. In lieu of a formal hearing, a telephone conference on the motions was held on July 7, 2016, and both motions were denied. The relators then filed a writ application seeking review of the trial court's denial of the exceptions of improper venue. The writ was called up on the court's regular docket and argued before a panel of this court.

         ANALYSIS

         Initially, we note Cottonport Bank filed a "Motion to Supplement Appellate Record, or in the Alternative, to Lift the Stay, and Allow the Trial Court to Supplement the Record." Specifically, due to error, two affidavits executed by the private process server to be filed with the service return were not made part of the record by the trial court. Cottonport Bank seeks to supplement the record with the affidavits. This motion ...


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