Bruno v. CDC Auto Transp., Inc.

302 So.3d 8

Joshua L. BRUNO and Janice Bruno

v.CDC AUTO TRANSPORT, INC., Esperanza, Inc., Tony Doe and John Doe

NO. 2019-CA-1065

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 3, 2020

Thomas A. Robichaux, 1317 Milan Street, New Orleans, LA 70115, Henry Minor Pipes, III, Patrick J. Lorio, PIPES MILES BECKMAN, L.L.C., 1100 Poydras Street, Suite 1800, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLANT

Imtiaz A. Siddiqui, IAS LAW LLC, 900 Camp Street, Suite 435, New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods )

Judge Regina Bartholomew-Woods

The instant appeal involves a contractual provision as to venue. Because Appellee failed to raise a declinatory exception of improper venue prior to or along with the motion to set aside the preliminary default, as contemplated by La. C.C.P. art. 928, Appellee waived this exception.

FACTUAL BACKGROUND

Plaintiffs-Appellants, Joshua Bruno and his mother Janice Bruno ("Appellants"), are residents of New Orleans, Louisiana. Plaintiffs-Appellants purchased a 2007 Mercedes C-300 sedan ("the vehicle") from a car dealership in Bangor, Maine for Janice Bruno. Subsequent to the purchase of the vehicle, Mr. Bruno placed a solicitation on a website, UShip.com, in order to have a shipping company deliver the vehicle to Mr. Bruno's residence in New Orleans. UShip.com connected Mr. Bruno to the bid winner—CDC Auto Transport, LLC ("CDC"). Thereafter, Mr. Bruno entered into an agreement with CDC to ship the vehicle and paid CDC a deposit in the amount of one hundred dollars ($100.00).¹ Mr. Bruno further agreed to pay one thousand three hundred-fifty dollars ($1,350.00) as a fee for delivery of the vehicle.

At this point, the parties’ versions of events differ significantly. Mr. Bruno alleges that "without [his] knowledge or consent" CDC subcontracted the shipping of the vehicle to Defendant-Appellee, Esperanza, Inc. ("Esperanza"). Esperanza is a Massachusetts transportation services corporation with its principal place of business in Hampden County, Massachusetts. Contrarily, on or before October 8, 2018, Esperanza alleges that its dispatcher spoke to Mr. Bruno, via telephone. During said telephone conversation, Esperanza asserts that Mr. Bruno was specifically made aware of it being the subcontractor of CDC and in charge of the shipping. According to Mr. Bruno, prior to the delivery of the vehicle to New Orleans, he never spoke with anyone from Esperanza.

However, Esperanza asserts that during the telephone conversation, Mr. Bruno was informed that delivery could be made at any time and that payment was due at the time of delivery. More importantly, Esperanza asserts that it made Mr. Bruno aware of a Bill of Lading and its accompanying Terms and Conditions,² which included a forum selection clause³ that stated that all litigation or legal action must be initiated in state court in Hampden County, Massachusetts. On October 8, 2018, at the time the vehicle was picked up, Esperanza alleges that Mr. Bruno's "authorized representative" was presented with the Bill of Lading and Terms and Conditions⁴ ; that Mr. Bruno's authorized representative was afforded the opportunity to review the document and retained a copy; and that Mr. Bruno's authorized representative signed the Bill of Lading.

Contrarily, Mr. Bruno asserts that he was never made aware of the Bill of Lading nor of its Terms and Conditions. He further states that the Bill of Lading presented by Esperanza may not even be an authentic document because the customer's signature is illegible, there is no printed customer's name, and the document is not dated; moreover, he claims that it is impossible to determine who signed the Bill of Lading.

It is undisputed that the vehicle was placed on a transport and sent to New Orleans by an Esperanza driver. Esperanza designated "Tony"⁵ as a driver to deliver the vehicle. When Tony was several hours away from New Orleans, he text-messaged Mr. Bruno that he would be arriving during the early hours of the morning, at approximately 1:00 a.m., and that Mr. Bruno would need to leave his house and meet him near Interstate-10, as opposed to having the vehicle dropped off to him at his home. Mr. Bruno, who states that he is a single father, was unprepared to accept delivery of the vehicle at that time because he did not want to leave his young children home alone; he relayed this information to "Tony." Mr. Bruno asserts that he immediately contacted CDC—the entity with which he contracted—about the delivery issue and CDC assured him that the driver would wait until normal business hours, and deliver the vehicle for the same flat price of $1,350.00. According to Esperanza, however, the driver waited for several hours and was entitled to an additional fee for the resulting wait time, in accordance with its Terms and Conditions.

The next morning, after several attempts to contact Tony, Mr. Bruno alleges that he finally received two messages from Tony advising him that he was at the corner of Claiborne Avenue and Octavia Street. Tony requested that Mr. Bruno meet him there with the shipping cost and an additional three hundred-fifty dollars ($350.00)⁶ , or else, the vehicle would be returned to Massachusetts. When Mr. Bruno arrived on-site, Esperanza asserts and Mr. Bruno agrees that he refused to pay the additional fee (as stated in the Terms and Conditions) for the resulting wait time. Consequently, Tony refused to release possession of the vehicle and Esperanza was unable to consummate delivery. As a result, Esperanza, pursuant to the Terms and Conditions, retained possession of the vehicle. Mr. Bruno asserts that Esperanza or Tony, or both, have secreted the vehicle since the date that delivery was supposed to have been consummated.

PROCEDURAL HISTORY

On December 4, 2018, Appellants filed a petition for damages against CDC; Esperanza; Tony Doe, the driver for Esperanza; and John Doe, Esperanza's secondary driver. Appellants alleged that Defendants were jointly, severally, and in solido liable to them for damages, including the full and complete value of the vehicle. On February 18, 2019, Esperanza was served with the petition via the Long Arm Statute through a commercial courier on its agent. On March 28, 2019, Appellants filed a motion for preliminary default against CDC and Esperanza due to their failure to respond to the petition within the time delays provided by law. La. C.C.P. art. 1701.⁷ Also, Appellants simultaneously filed the affidavit of service into the record and on the same date, the trial court signed the order granting a preliminary default.

In response, Esperanza filed a motion and incorporated memorandum to set aside or vacate the preliminary default, arguing that the preliminary default was premature because Appellants failed to comply with the procedural requirements outlined in La. R.S. 13:3205.⁸ Subsequently, on April 24, 2019, Esperanza filed an ex parte motion for extension of time to file a responsive pleading to the petition.⁹ The trial court granted the motion, extending the deadline for a response until May 29, 2019. Subsequently, on May 29, 2019, Esperanza filed a declinatory exception of improper venue. On July 23, 2019, Appellants filed a motion to continue the hearing on the exception, which was reset to September 27, 2019. Appellants also filed a memorandum in opposition to the exception of improper venue on September 18, 2019. Esperanza filed a reply memorandum in further support of its exception of improper venue on September 25, 2019.

A hearing on the exception was held on September 27, 2019, and the trial court rendered a judgment on October 1, 2019, maintaining Esperanza's declinatory exception of improper venue while dismissing Appellants’ claims without prejudice. Subsequently, Appellants filed a motion and order for suspensive appeal on October 3, 2019, from the trial court's maintenance of the exception of venue.

DISCUSSION ¹⁰

Appellants appeal the trial court's judgment maintaining Esperanza's declinatory exception of improper venue, asserting that: 1) Esperanza waived its right to contest venue by making a general appearance on April 9, 2019; and 2) Esperanza's Terms and Conditions contained in the Bill of Lading are invalid and unenforceable.

STANDARD OF REVIEW

This Court has held that "[e]xceptions of improper venue are reviewed using the de novo standard of review, as venue is a question of law." Matthews v. United Fire & Casualty Insurance Company Doctor Pipe, Inc. , 2016-0389, p. 3 (La. App. 4 Cir. 3/8/17), 213 So.3d 502, 505. We are allowed to "render judgment on the record without deference to the legal conclusions of the [trial court]." Land v. Vidrine , 2010-1342, p. 3 (La. 3/15/11), 62 So.3d 36, 39 (quoting Louisiana Municipal Association v. State , 04-0227, pp. 35-36 (La. 1/19/05), 893 So.2d 809, 836–37 ).

ANALYSIS

Louisiana Code of Civil Procedure article 44(C) provides:

Except as otherwise provided in this article or by other law, any objection to the venue, including one based on any article in this Chapter, is waived by the failure of the defendant to plead the declinatory exception timely as provided in Article 928.

Further, La. C.C.P. art. 928 provides:

The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment....

Appellants argue that Esperanza's motion and order to set aside or vacate the preliminary default is not one of the enumerated pleadings listed in La. C.C.P. art. 928, and therefore, Esperanza's motion constituted a general appearance. Further, Appell...