95 0413 La.App. 1 Cir. 11/9/95, Operational Technologies Corp. v. Environmental Contractors, Inc.
| Decision Date | 09 November 1995 |
| Parties | 95 0413 La.App. 1 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Nicholas Soileau, Baton Rouge, for Plaintiff/Appellee, Operational Technologies Corporation.
Emile Joseph, Jr., Lafayette, for Defendant/Appellant, Environmental Contractors, Inc.
Before LeBLANC, WHIPPLE and FOGG, JJ.
[95 0413 La.App. 1 Cir. 2] LeBLANC, Judge.
This appeal is from the trial court's denial of the declinatory exception raising the objection of improper venue brought by Environmental Contractors, Inc., defendant. We reverse.
In June 1991, Operational Technologies Corporation (OpTech), plaintiff, agreed to perform air monitoring services for an Environmental Contractors' construction project at Fort Polk, Louisiana. The agreement included terms for billing by OpTech for the services provided. Invoices were to be "issued every four weeks, payable upon receipt...."
In March 1994, OpTech filed suit in East Baton Rouge Parish against Environmental Contractors for the balance which remained due and owing, plus legal interest and attorney's fees. On the same day the petition was filed, OpTech also filed a request for admissions by the defendant. 1 Environmental Contractors did not respond to the request for admissions, but filed a declinatory exception raising the objection of improper venue. Environmental Contractors asserts Lafayette Parish is the proper venue, as it is a Louisiana corporation having its registered office in Lafayette Parish.
At the hearing on the exception, the unanswered request for admissions was deemed admitted. Consequently, the trial court held work was performed under the contract in East Baton Rouge Parish and, applying La.C.C.P. art. 76.1, denied defendant's improper venue exception. Environmental Contractors appeal, arguing the trial court erred in applying La.C.C.P. art. 76.1.
[95 0413 La.App. 1 Cir. 3] LAW AND DISCUSSION
The general rules of venue are contained in La.C.C.P. art. 42 which provides, in pertinent part:
The general rules of venue are that an action against:
* * * * * *
(2) A domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located.
La.C.C.P. art. 43 declares that "[t]he general rules of venue ... are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law." La.C.C.P. art. 76.1 provides:
An 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.
OpTech's suit is a suit on open account. It is so titled in its petition, and referred to as such in argument. Although a suit seeking payment for a balance due on an open account necessarily involves some type of contractual relationship between the parties, a suit on open account is different than a normal breach of contract claim. Olinde v. Couvillion, 94-1275, p. 3 (La.App. 4th Cir. 2/23/95), 650 So.2d 1241, 1242. The law has historically treated an open account unlike a contract, providing for different prescriptive periods, La.C.C. arts. 3494(4) and 3499, and providing for attorney's fees when the suit is one on open account, La.R.S. 9:2781A. In addition, an "open account" has been defined by the legislature in the Revised Statutes as "any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions ... [and] shall include debts incurred for professional services...." La.R.S. 9:2781C. There is no special legislation, however, which provides for venue for open account suits other than that provided in article 42. Olinde, 94-1275, at p. 3, 650 So.2d at 1242-43. Because we find the action before the court is a suit on open account, not a contract, we do not reach the application of La.C.C.P. art. 76.1 and pretermit discussion of the effect of the trial court's ruling declaring the unanswered requests were admitted.
[95 0413 La.App. 1 Cir. 4] We note in Jordan v. Central Louisiana Electric, 95-1270 (La. 6/23/95), 656 So.2d 988, the Louisiana Supreme Court recently stated the alternative provisions provided in Articles 71 through 85 are an "extension, supplement and legal part of the provisions of ...
To continue reading
Request your trial
-
Cong. Square Ltd. P'ship v. Polk
...rendered).3 "The law has [thus] historically treated an open account unlike a contract, " Operational Techs. Corp. v. Env't. Contractors, Inc., 665 So.2d 14, 15-16 (La. Ct. App. 1st Cir. 1995), and "[a] claim for breach of contract and a claim under the open account statute are considered d......
-
Parkcrest Builders, LLC v. Hous. Auth. of New Orleans
...of action. Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 174 (5th Cir. 2007) (citing Operational Tech. Corp. v. Envtl. Contractors, Inc., 665 So. 2d 14, 15 (La. App. 3d Cir. 1995)).(13) "The 'time and materials' contract is a form of open-ended cost reimbursement contract under......
-
Kennedy Marr Offshore Singapore PTE Ltd. v. Techcrane Int'l Inc.
...Cambridge Toxicology Grp. v. Exnicios, 495 F.3d 169, 174 (5th Cir. 2007) (citing Operational Tech. Corp. v. Envtl. Contractors, Inc., 665 So. 2d 14, 15 (La. Ct. App. 1st. Cir. 1995)). Louisiana courts have considered several factors when determining whether a course of dealings qualifies as......
-
Kennedy Marr Offshore Singapore Pte Ltd. v. Techcrane Int'l Inc.
...... Before the Court is a motion 1 for summary judgment and a motion 2 for partial ... Celotex Corp . v . Catrett , 477 U.S. 317, 323 (1986). The ... Upjohn Co ., 780 F.2d 1190, 1195 (5th Cir. 1986). Once the party seeking ... Contractors v . Neumeyer , 419 So. 2d 1, 5 (La. Ct. App. 4th ... v . Ballast Technologies , Inc . 436 F. App'x 297, 301 (5th Cir. 2011) ...2007) (citing Operational Tech . Corp . v . Envtl . Contractors , Inc ......