The Fourth Circuit Court of Appeal held that an Exception of Venue did not constitute a general appearance pursuant to Louisiana Code of Civil Procedure article 7 and allowed the plaintiff to obtain an ex parte motion of dismissal pursuant to Louisiana Code of Civil Procedure article 1671.
Article 7, which clearly delineates, by negative implication, the actions that constitute a general appearance, provides in pertinent part:
Plaintiff contends that the Exception of Improper Venue is not a general appearance because it falls under sub-part five of article 7. We disagree and cite with approval the reasoning of the First Circuit Court of Appeal in Clark v. Clark, 600 So.2d 880 (La. App. 1st Cir.1992):
Therefore, we conclude that the Exception of Improper Venue filed by the Succession of Jennifer Leslie constituted a general appearance.
The trial court granted plaintiffs' Partial Motion to Dismiss the succession of Jennifer Leslie ex parte. Article 1671, governing voluntary dismissal, provides that:
The article clearly leaves the decision to dismiss a party without prejudice to the discretion of the trial court. In the present case, the trial court set aside the dismissal by the duty judge, but permitted plaintiffs leave to file a contradictory motion requesting dismissal of the party without prejudice.
Thus, we reverse the judgment of the court of appeal and reinstate the judgment of the trial court dated December 21, 1995.
JOHNSON, J., not on panel.