LOUISIANA MACHINERY COMPANY, L.L.C. NO. 22-C-471 VERSUS FIFTH CIRCUIT DON BIHM EQUIPMENT CO., INC. AND COURT OF APPEAL DONALD RAY BIHM STATE OF LOUISIANA

November 17, 2022 Linda Wiseman First Deputy Clerk

IN RE DON BIHM EQUIPMENT CO., INC. AND DONALD RAY BIHM APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SHAYNA BEEVERS MORVANT, DIVISION "M", NUMBER 829-350

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg

WRIT GRANTED FOR LIMITED PURPOSE; REMANDED Relators, Don Bihm Equipment Co., Inc. and Donald Ray Bihm, seek review of the trial court’s August 25, 2022 judgment that overruled their declinatory exception of improper venue in favor of Respondent, Louisiana Machinery Company, L.L.C. (“Louisiana Machinery”). In their exception, Relators sought dismissal of Respondent’s action against them on the bases that: they are domiciled in West Baton Rouge Parish, and all of the business done with them was conducted in their West Baton Rouge Parish office; and, the equipment leased from Louisiana Machinery is located on the site of their West Baton Rouge Parish business, which is where the maintenance and repairs were done. Relators asserted that nothing in Louisiana Machinery’s petition indicated that any transaction between the parties occurred in Jefferson Parish. Louisiana Machinery opposed the exception, arguing there was a specific transaction in Jefferson Parish whereby Relators purchased and took delivery of certain parts from Louisiana Machinery in Harvey, Louisiana.

At the hearing on the exception, Louisiana Machinery introduced an affidavit of Jason Maurin in support of their contention that venue is proper in Jefferson Parish, which was accepted by the trial court. In opposition to Louisiana Machinery’s evidence, Relators offered the live testimony of Donald Bihm. 1 The trial court prohibited the introduction of Mr. Bihm’s live testimony, citing noncompliance with Uniform Rules—District Courts, Rule 9.8(a).

Venue is a question of law, which is reviewed de novo by an appellate court.

Ameriprint, LLC v. Canon Solutions America, Inc., 21-94 (La. App. 5 Cir. 5/24/21), Relators also sought to introduce documentation, which was denied by the trial court on the basis that the documents were not certified. --- So.3d ----, 2021WL2093283. Evidence may be presented at a hearing on a declinatory exception. Id.; La. C.C.P. art. 930. If evidence is admitted at a hearing on a declinatory exception, the exception must be resolved on the evidence presented, rather than on the allegations in the petition. Id. For purposes of a venue exception, the allegations of the plaintiff’s petition are taken as true; however, when evidence is offered at a trial on the exception, the court is not bound to accept the allegations of the petition as true. Id. La. C.C.P. art. 930 permits the presentation of evidence to support or controvert any objection pleaded. 2 Because La. C.C.P. art. 930 allows the presentation of evidence and admissible evidence can be considered in resolving the exception of improper venue, we find that the trial court erred in prohibiting Relators’ presentation of live testimony. (Compare, Burke v. Cohen, 19-544 (La. App. 5 Cir. 5/28/20), 296 So.3d 1231, 1236, where this Court held that noncompliance with Uniform Rules—District Courts, Rule. 9.9(d) did not preclude the defendants from arguing or presenting evidence at the trial on the peremptory exception of prescription to support their position.).

Accordingly, we grant the writ application for a limited purpose, reverse the trial court’s August 25, 2022 judgment that overruled the Relators’ declinatory exception of improper venue, and remand the matter for further proceedings.

Gretna, Louisiana, this 17th day of November, 2022.

MEJ SMC HJL

“The Louisiana Code of Civil Procedure takes precedence over the District Court Rules.” Uniform Rules—District Courts, Rule 9.8, Comment (a).

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 11/17/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-471 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Shayna Beevers Morvant (DISTRICT JUDGE) Michael C. Drew (Respondent) Graham H. Ryan (Respondent) MAILED Charles E. Griffin (Relator) Attorney at Law Post Office Box 1817 St. Francisville, LA 70775 • Complete Items 1, 2, and 3. • Print your name and ad<hss on the reverse so that we can return the card to you. • Attach this card to the back of the mallplece, or on the front If space permits.

1. Article Addressed to: Cbirl~ ·E. Griffin At~·atLaw Poli Office Box 1817 St. .Erancisville, LA 70775 22-C,.i:J71 11-17-22

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