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Carr and Associates, Inc. v. Jones

Court of Appeals of Louisiana, First Circuit

December 27, 2019

CARR AND ASSOCIATES, INC.
v.
ROSELLE JONES

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2018-10569 Honorable William J. Knight, Judge Presiding

          David L. Browne Cynthia M. Cimino New Orleans, Louisiana Counsel for Plaintiff/ Appellee Defendant In Intervention Carr and Associates, Inc.

          Robert C. Lehman Mandeville, Louisiana Intervenor/ Appellant In Proper Person

          Bruce M. Danner Madisonville, Louisiana Counsel for Defendant/ Appellee Roselle Jones

          BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

          MCCLENDON, J.

         Intervenor appeals the trial court's judgment granting defendant's Exception of Prescription and dismissing all claims against defendant. For the reasons that follow, we reverse and remand with instructions.

         FACTUAL AND PROCEDURAL BACKGROUND

         Roselle Jones ("Ms. Jones") was the owner of property located at 1817 Napoleon Avenue in New Orleans, Louisiana, when it was damaged by a fire. Ms. Jones hired Carr & Associates, Inc., ("Carr") to perform appraisal and estimating services in connection with her resulting insurance claim. The contract was memorialized in writing and set Carr's fees at the rate of $300.00 per hour. Carr submitted a final invoice to Ms. Jones reflecting that Carr last performed work on the contract on February 18, 2014, and that Ms. Jones owed Carr a total of $55, 335.00 for the work performed during the insurance appraisal process and subsequent litigation. Ms. Jones paid $5, 000.00 of the total amount due.

         On June 30, 2014, Carr filed suit against Ms. Jones in the Civil District Court for the Parish of Orleans ("CDC trial court"). Carr's petition alleged that "in accordance with the remuneration agreed upon between the parties, the compensation due to petitioner on open account is $50, 335.00." Service on Ms. Jones was unsuccessful. A curator was subsequently appointed, though additional attempts at service were also unsuccessful. On May 8, 2015, the CDC trial court granted summary judgment in favor of Carr against Ms. Jones.

         On June 5, 2017, Ms. Jones filed a petition to nullify the May 8, 2015 judgment. Ms. Jones alleged that she had never been served with process, had not waived service, and had not waived objection to jurisdiction. Further, Ms. Jones asserted that there had been no basis to appoint a curator because Carr's counsel, Robert Lehman, had originally requested service at an incorrect address. On August 4, 2017, the CDC trial court executed a judgment of nullity as to the May 8, 2015 judgment.

         Following the CDC trial court's judgment of nullity, Mr. Lehman requested service on Ms. Jones through her counsel, Bruce Danner. Ms. Jones was then properly served. Ms. Jones filed a Declinatory Exception of Improper Venue, arguing that St. Tammany Parish was the only parish of proper venue for Carr's suit because Carr and Ms. Jones were both domiciled in St. Tammany Parish, and because Carr did not perform any work on the contract in Orleans Parish. Mr. Danner prepared, and Mr. Lehman signed, a judgment on the Exception of Improper Venue. The below judgment was executed by the CDC trial court on November 3, 2017 ("the November 3, 2017 judgment"):

         (Image Omitted)

         After the November 3, 2017 judgment on the Exception of Improper Venue had been executed by the CDC trial court, and on the same day, Carr filed a Motion to Substitute requesting the withdrawal of Mr. Lehman and substitution of David Browne and Cynthia Cimino as counsel of record on Carr's behalf; the CDC trial court executed the accompanying Order enrolling Mr. Browne and Ms. Cimino as counsel of record; and Carr filed a Memorandum in Opposition to the Exception of Improper Venue through his new counsel. Upon discovering that the CDC ...


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