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Tillis v. McNeil

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

CEA TILLIS
v.
JAMAL MCNEIL & GENERAL INSURANCE COMPANY OF AMERICA

          ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 157-390, DIVISION "A" HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CEA TILLIS Eugene P. Redmann James A. Harry

          COUNSEL FOR DEFENDANT/APPELLEE, JAMAL MCNEIL & GENERAL INSURANCE COMPANY OF AMERICA Pamela S. Chehardy Croft

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore

          MARION F. EDWARDS, PRO TEMPORE JUDGE.

         Plaintiff/appellant, Cea Tillis, appeals two judgments. One judgment is from the Second Parish Court for the Parish of Jefferson dated May 23, 2013, and the other is from the First Parish Court for the Parish of Jefferson dated August 22, 2017. Both judgments, although rendered in different courts, arise from the same litigation and grant a defense exception of lack of jurisdiction.

         For reasons that follow, we find the judgment of May 23, 2013 is not before us on appeal, and will not be considered. We reverse the judgment of August 22, 2017 and remand the matter for further proceedings consistent with this opinion.

         Setting forth the procedural history of this matter presents a unique challenge for this Court. Cea Tillis filed this action in the Second Parish Court for the Parish of Jefferson on October 12, 2012 seeking damages sustained in an automobile accident that occurred on October 13, 2011 on Frenchmen Street in New Orleans. The petition is entitled, "Petition for Damages and Request for Admission of Fact." Named defendants in that action are Jamal McNeil, a resident of Orleans Parish, and his insurance company, Safe Co Insurance Company[1]. The petition asserts that venue is proper in Jefferson Parish pursuant to La. C.C.P. art. 74[2]. The admission of fact at the end of the petition states, "(p)lease admit each and every allegation in this Petition for Damages."

         On November 14, 2012, both Mr. McNeil and his insurance company filed a declinatory exception of lack of jurisdiction, asserting that both the site of the accident and the domicile of the defendant are outside of the territorial boundary of the court. The Second Parish Court heard the matter on April 26, 2013. At the hearing, plaintiff's counsel "handed" the judge a motion to transfer the matter to First Parish Court, but admitted that was incorrect and the motion should have requested a transfer to First City Court in Orleans Parish. Plaintiff acknowledged the petition was filed in an incorrect venue and asked the court to transfer the matter. Defense counsel objected to the transfer, arguing that the court lacked jurisdiction to take any action including a transfer to a court of proper venue. Ultimately, the court took the matter under advisement.

         The motion to transfer was not filed in the record, nor ruled on by the trial court. On May 23, 2013, the Second Parish Court rendered judgment granting an exception of lack of personal jurisdiction, based on a finding that the accident occurred in Orleans Parish and the defendant is domiciled in Orleans Parish. That judgment dismissed the action without prejudice.

         On June 5, 2013, plaintiff filed a motion for new trial. On August 27, 2013, the court granted the new trial and overruled defendants' exception of lack of personal jurisdiction. The trial judge indicated that he was reversing his decision because he confused venue with jurisdiction.

         On September 9, 2013, defendants filed a motion to re-set the hearing on the exception to jurisdiction based on the grant of the motion for new trial. On September 12, 2013, defendants filed a motion for new trial from the grant of plaintiff's new trial motion, and the resulting judgment overruling the grant of the exception of lack of jurisdiction. On October 9, 2013, plaintiff filed a motion to dismiss defendants' motion to re-set the exception of lack of jurisdiction as moot based on the trial court's ruling of August 27, 2013 granting the new trial and overruling the grant of the exception of lack of personal jurisdiction. On the same day, plaintiff also filed a motion to dismiss defendants' motion for new trial as untimely.

         On November 15, 2013, the court rendered judgment granting defendants' motion for new trial. On April 16, 2014, the Second Parish Court rendered a judgment in which it denied plaintiff's motion to dismiss defendants' motion to reset the exception of lack of jurisdiction, and plaintiff's motion to dismiss defendants' motion for new trial as untimely. In that same judgment, the Second Parish Court transferred the matter to the First Parish Court in Jefferson Parish. Subsequently, plaintiff filed a motion to transfer the lawsuit to First Parish Court for the Parish of Jefferson pursuant to that judgment. That motion was granted on April 8, 2015.

         On May 30, 2017, defendants filed exceptions of lack of jurisdiction, improper venue and prescription in First Parish Court. On August 22, 2017, the First Parish Court rendered judgment maintaining defendants' exception of subject matter and personal jurisdiction and dismissing plaintiff's action. The court did not rule on the exceptions of improper venue or prescription. Plaintiff filed a motion for appeal from that judgment on September 6, 2017.

         DISCUSSION

         Initially we note that the judgment of the Second Parish Court rendered on May 23, 2013 granting an exception of lack of personal jurisdiction was reversed after a grant of a motion for new trial. At that point, there was a valid judgment denying the exception of lack of personal jurisdiction. Rather than seeking review of that judgment in this Court, defendants filed a motion for new trial on the grant of the motion for new trial, a procedural device with which this Court is unfamiliar. Accordingly, we find that the judgment of May 23, 2013 granting the exception of lack of jurisdiction was never appealed and is not before us.

         Therefore, the only judgment properly before this Court on appeal is the judgment of First Parish Court dated August 22, 2017 in which the trial court granted defense exceptions of lack of personal and subject matter jurisdiction and dismissed the action for damages.

         The procedure and legal reasoning supporting the transfer of this matter from Second Parish Court for Jefferson Parish to First Parish Court for Jefferson Parish is not certain from the record.[3] Nevertheless, the judgment on appeal before us is a ruling on exceptions filed by defendants in First Parish Court on May 30, 2017. The pleading on which the judgment is based raised exceptions of lack of jurisdiction, improper venue and prescription.

         The judgment grants the exceptions of lack of personal and subject matter jurisdiction and is silent on the exceptions of improper venue and prescription. The transcript shows that the trial court granted the exceptions of lack of personal and subject matter jurisdiction based on the facts that the accident occurred in Orleans Parish and the domicile of the defendant is in Orleans Parish. Although the decision was based on principles of venue, the court granted an exception of lack of ...


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