Hamilton Medical Group v. Ochsner Health Plan

• Decision Date: 22 September 1989
• Docket Number: No. 89-407,89-407
• Citation: 550 So.2d 290
• Parties: HAMILTON MEDICAL GROUP, Plaintiff-Appellee, v. OCHSNER HEALTH PLAN d/b/a Hamilton Health Plan, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 290

550 So.2d 290

HAMILTON MEDICAL GROUP, Plaintiff-Appellee, v. OCHSNER HEALTH PLAN d/b/a Hamilton Health Plan, et al.,

Defendants-Appellants.

No. 89-407.

Court of Appeal of Louisiana,

Third Circuit.

Sept. 22, 1989.

Perret, Doise, Daigle, Longman, Russo & Zaunbrecher, Douglas C. Longman, Jr., Lester J. Zaunbrecher, LaFayette, for plaintiff-appellee-mover.

Monroe & Lemann, Benj. R. Slater, Jr., Richmond M. Eustis, Gerard A. Bos, New Orleans, for defendants-appellants-respondents.

Before STOKER, KNOLL and KING, JJ.

KING, Judge.

Plaintiff-appellee, Hamilton Medical Group, moves to dismiss the appeal of defendants-appellants, Ochsner Health Plan d/b/a Hamilton Health Plan, Ochsner Service Corporation, Ochsner Clinic, and William H. Townsend, on the ground that appellants seek a review of an unappealable judgment, the denial of exceptions of improper venue and vagueness. Alternatively, appellee moves for an expedited hearing.

This Court on its own motion hereby converts defendants-appellants' appeal into a supervisory writ application and renders a decision on the merits for the following reasons.

A judgment that does not determine the merits but only preliminary matters is an interlocutory judgment. La.C.C.P. Art. 1841. An appeal can be taken from an interlocutory judgment which may cause irreparable injury. La.C.C.P. Art. 2083. A decision denying an exception of improper venue creates the possibility of irreparable injury because the appellate court, subsequent to a trial on the merits, has no practical means of correcting an incorrect ruling since the trial will have already taken place in an improper venue. In many instances, the trial will have been an absolute nullity since venue is also jurisdictional and may not be waived. La.C.C.P. Art. 44. For this reason, it has been recognized that the denial of an exception of improper venue is an appealable interlocutory judgment since it might cause irreparable injury. Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Succession of Thompson v. Harrington, 489 So.2d 458 (La.App. 3rd Cir.1986). While we concede that there is authority for the proposition that an exception of improper venue can be appealed we do not believe that a mechanical application of this legal authority in this instance is logical or consistent with good judicial policy, or is fair. As the Fourth Circuit Court of Appeal stated in Laborde v. DeBlanc, 532 So.2d 829 (La.App. 4th Cir.1988):

"A denial of an exception of improper venue does not result in a final judgment, but rather is an interlocutory order. The proper remedy is therefore an application for a supervisory writ, not an appeal. Henry v. Ford Motor Co., Inc et al., 519 So.2d 845 (La.App. 4th Cir.1988). In Henry, this court used a two-part test to determine if a writ will be granted in such a case: (1) if there is no remedy on appeal and (2) if the Relator will suffer irreparable harm if the writ is not granted. If the trial court incorrectly overrules an exception of venue and the case is tried in the wrong venue, then there exists no remedy to correct that fact on appeal. Thus, the Relator will suffer irreparable harm if the writ is not granted. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981); Lapeyrouse v. United Services Auto. Ass'n, 503 So.2d 627 (La.App. 4th Cir.1987). The practical result is that a writ must be granted to review the merits of any declinatory exception of venue, whether the exception is granted or denied. However unpalatable that is, it is preferable to the alternative review by appeal. Footnote one in Henry, supra, discussing the problems caused by footnote one in Herlitz, supra, is more explicit:

"1. Herlitz footnote one uses a denial of an exception of venue as an example. While the example is mere dicta, it exists as a persuasive argument in the absence of a clearer more definite statement by the Supreme Court specifying exceptions of venue. Thus, it has unfortunately led to a situation in which appeals are being routinely granted below for denials of exceptions of venue. Thus litigants can halt the orderly process of trial for a year by seeking appeals from denial of venue exceptions.... In Herlitz, the Supreme Court was properly annoyed with a mechanical application of a standard that resulted in erroneous denials of meritorious writ applications. Further, the appellate court in Herlitz was applying the wrong standard. The two-fold test recited by the appellate court in Herlitz is: (1) where there is palpable error in the ruling complained of and (2) only if irreparable injury will ensue. If the appellate court had applied the 'where there is no remedy on appeal' prong of the test, then it would have seen that once the trial court overrules an exception of venue and the case is tried in the wrong venue, then there exists no remedy to correct that fact on appeal, hence a writ should be granted if the venue is wrong. The only result of Herlitz's footnote one is that it now takes over a year to do what once was done within a few days."

We believe it to be bad judicial policy to make litigants wait for a long period of time for disposition of a pending appeal because of the docketing delays for appellate hearings present in some of our Louisiana appellate courts, such as the delay in the Third Circuit of approximately fifteen months from the date the appeal is docketed, and to then have the appellate court also find that the exception of improper venue had no merit. This could encourage a defendant to file a meritless exception of improper venue which the trial court would overrule, to then appeal the trial court's ruling, only to then have the appellate court ultimately sustain the trial court's ruling. Such action by a defendant could delay discovery and trial of a suit for over a year and a half. The result of this mechanical application of the law would result in defendant's obtaining an undue delay of trial of a suit by legal technicalities which would be the epitome of the expression "Justice delayed is Justice denied." For this reason, we chose, as the Fourth Circuit has done, to dismiss this appeal and then rule on the merits of the exceptions of improper venue and vagueness, since they have already been briefed, by considering the appeal as an application for supervisory writs under our supervisory authority as an appellate court. Laborde v. DeBlanc, supra; Henry v. Ford Motor Co., Inc., supra.

ON THE MERITS

Plaintiff filed the instant suit in Lafayette Parish, Louisiana. The defendants responded by filing the Dilatory Exceptions of Vagueness and of Improper Venue. After a hearing on these exceptions, the trial court overruled both exceptions. It is from this ruling that defendants are seeking an appellate review.

Improper Venue

The plaintiff argues that the Ochsner Health Plan's office in Lafayette had supervision over the matters at issue in this suit, therefore, venue is proper under the provisions of La.C.C.P. Art. 77. The trial court agreed and denied the exception.

La.C.C.P. Art. 77 states as follows:

Art. 77. Action against person doing business in another parish

An action against a person having a business office or establishment in a parish other than that where he may be sued under Article 42, on a matter over which this office or establishment had supervision, may be brought in the parish where this office or establishment is located.

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