PALOWSKY III v. CORK OHC LLC (2025)

Appellants, Stanley R. Palowsky, III and Alternative Environmental Solutions, Inc., appeal the 4th Judicial District Court's April 18, 2024 judgment sustaining Dana Howard's renewed lack of personal jurisdiction exception and dismissing all claims against her with prejudice, and the District Court's July 2, 2024 judgment granting Anadarko Petroleum Corporation's Motion for Summary Judgment and dismissing all claims against it without prejudice. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Litigation began in 2013 when Stanley R. Palowsky, III, owner of Alternative Environmental Solutions, Inc. (“AESI”), filed a shareholder derivative suit on behalf of AESI against his former business partner W. Brandon Cork, along with Anthony White (“White”), White's company OHC Services, L.L.C. Palowsky subsequently amended the petition twice adding facts and additional defendants, namely Michael L. Holder and Holder's company, TP Environmental & Pipeline Services, L.L.C. Palowsky alleged that Cork had engaged in a kickback scheme with subcontractors to skim money from AESI invoices, while AESI was providing environmental services to Anadarko Petroleum Corporation (“APC”) on a project called the “Carpenter project” in Wyoming. In 2017, Cork was dismissed from the suit after a partial resolution was reached.

Based on information Palowsky learned during discovery, plaintiffs amended the petition again and filed a Restated Third Supplemental and Amending Petition for Damages (Third Amending Petition) in February 2017. The Third Amending Petition joined APC, who is domiciled in Texas, and Dana Howard, an employee of APC, as additional defendants. Plaintiffs alleged that Howard facilitated the kickback scheme, and alleged APC was vicariously liable for Howard's wrongdoing. A few months later, APC answered the petition – the answer did not include an objection to venue or reference APC's Master Service Contract (MSC) entered with AESI, which contained a “Choice of Law/Venue” provision. In October 2017, Howard filed a Declinatory Exception to Personal Jurisdiction.

On March 29, 2018, APC filed a Peremptory Exception of No Cause of Action, arguing that it could not be held vicariously liable for Howard's actions based on the facts alleged in the Third Amending Petition. The trial court sustained the exception of no cause of action and dismissed all claims against APC. On May 20, 2020, the first circuit affirmed the portion of the ruling sustaining the exception of no cause of action but reversed the portion of the judgment dismissing plaintiffs’ claims against APC. See Palowsky v. Cork, 19-148 (La. App. 1 Cir. 5/20/20), 304 So.3d 867, 877. The first circuit remanded the matter to the trial court to allow plaintiffs an opportunity to amend their petition to state a cause of action for vicarious liability against APC. Id.

On July 17, 2020, Palowsky filed his Restated Fourth Supplemental and Amending Petition for Damages (Fourth Amending Petition). Instead of filing an answer to the fourth amending petition, APC filed a Motion for Partial Summary Judgment which urged that the doctrine of “unclean hands” barred plaintiff, AESI, from pursuing any claims against APC. The trial court granted the partial motion for summary judgment and dismissed AESI's claims against APC. On March 16, 2022, this Court reversed that judgment and on June 8, 2022, the Louisiana Supreme Court denied APC's writ application. See Palowsky v. Cork, 21-435 (La. App. 5 Cir. 3/16/22), 337 So.3d 550, 562, writ denied, 22-646 (La. 6/8/22), 338 So.3d 1200.

Plaintiffs then engaged in jurisdictional depositions regarding whether personal jurisdiction existed over defendant Howard. APC filed the instant motion for summary judgment in May of 2023, seeking to enforce the MSC's forum selection clause. APC argued that plaintiffs should have filed this suit in Texas based on a “Choice of Law/Venue” provision in the MSC between AESI and APC. APC contended that the choice of law provision mandates the application of Texas law to this dispute and the forum selection provision obligates the parties to litigate this dispute in Harris County, Texas. APC argued that under Texas law, forum selection clauses carry a strong presumption of validity, and plaintiffs cannot satisfy the heavy burden necessary to overcome it. Thus, APC asserted that because the parties are bound to litigate disputes related to the Carpenter project in Texas, this lawsuit must be dismissed.

In July 2023, after depositions had been taken and in response to the fourth amending petition, Howard filed a renewed exception of lack of personal jurisdiction, arguing that there is no evidence in support of personal jurisdiction over her in Louisiana.

APC's motion for summary judgment and Howard's renewed exception of lack of personal jurisdiction were heard on January 19, 2024. After argument, the court took the matters under advisement. On April 18, 2024, the trial court sustained Howard's exception of lack of personal jurisdiction and dismissed all claims against Howard with prejudice. On July 2, 2024, the trial court signed a judgment granting the motion for summary judgment and dismissing all claims against APC without prejudice.¹

On July 12, 2024, Palowsky timely filed his Notice/Petition for Devolutive Appeal of the judgments in favor of Howard and APC.

ASSIGNMENTS OF ERROR

Appellants allege the following as assignments of error on appeal.

1. The trial court erred in applying Texas law. Plaintiff argues the lower court “with minimal analysis and no apparent consideration of Plaintiffs’ arguments about waiver of venue objections, applied Texas law to [APC's motion for partial summary judgment] and then granted it.”

2. The trial court erred when it found the Master Service Contract's venue provision was enforceable after APC failed to object to venue for six years.

3. The trial court erred in finding there were no genuine issues of material fact and granting APC's motion for summary judgment.

4. The trial court erred in finding that Plaintiffs failed to establish sufficient minimum contacts for personal jurisdiction over Dana Howard in Louisiana.

In its brief, APC counters the trial court correctly determined that the MSC forum selection clause “involves substantive contractual rights” which appellants are framing as a procedural issue. It furthers argues that treating forum selection clauses as procedural rights “would produce illogical and incongruent results.” APC urges that the trial court “correctly held the [clause] was applicable, valid, and enforceable” and found that there was no dispute of material fact. Finally, APC contends that if appellants are correct regarding their assertions that the trial court issued a procedural venue ruling, then this Court cannot exercise its appellate jurisdiction over an interlocutory ruling. APC further contends that the appeal cannot be converted to a writ application for supervisory review because the notice/petition for devolutive appeal was filed more than thirty days after the judgment at issue.²

With regards to the issue of personal jurisdiction, Howard contends that she lived and worked in Texas at all times relevant to appellants’ claims. Further, none of the alleged events concerning her occurred in Louisiana. She avers that all work related to the Carpenter Project occurred in Wyoming or Texas, and she did not perform any work on the Carpenter Project while in Louisiana. Howard argues that appellants have not proven that the trial court's judgment regarding her was manifestly erroneous, or clearly wrong, and they have not sustained their burden to prove all facts necessary to establish the exercise of personal jurisdiction over her by a Louisiana court by a preponderance of the evidence.

LAW AND DISCUSSION

APC Challenge of Venue through Motion for Summary Judgment

Appellants argue that the trial court erred when it allowed APC to object to venue via a motion for summary judgment to enforce a forum selection clause within the MSC naming Harris County, Texas as the proper place to bring any action (exclusive of maritime law) after failing to object to venue in six years of litigation. Citing Luffey ex rel. Fredericksburg Properties of Texas, LP v. Fredericksburg Properties of Texas, LP, 37,591, p. 9 (La. App. 2 Cir. 12/10/03), 862 So.2d 403, 408 (citing Lejano v. Bandak, 97-0388 (La. 12/12/97), 705 So.2d 158, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998).), APC counters that there are substantive rights at play here, and summary judgment is an appropriate vehicle to raise enforcement of a forum selection clause — we agree.

Appellants are correct – venue is a procedural matter unrelated to substantive causes of action. Tillis v. McNeil, 17-673, p. 6 (La. App. 5 Cir. 5/30/18), 249 So.3d 303, 308. However, Palowsky, AESI, and APC are litigating whether the forum selection clause is a valid, enforceable provision of the MSC. Thus, “it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case.” McCary v. Oceaneering Int'l, Inc., 17-1163, p. 4 (La. App. 1 Cir. 2/27/18), 243 So.3d 613, 615, citing Succession of Hickman, 16-1069 (La. App. 1 Cir. 4/12/17), 217 So.3d 1240, 1244. “In this case, the substantive law is based on interpretation of a contract.” Id. Therefore, the use of summary judgment here is appropriate.

Choice of Law

The MSC clause APC relies on to establish proper venue in Harris County, Texas, also contains a choice of law provision. The parties to the MSC agreed that Texas law would apply to resolve disputes unrelated to General Maritime Law. Appellants argue the trial court erred when it applied Texas law and did not consider their arguments that APC had waived its objection to venue. APC answered its Third Amending Petition on May 2017 without filing an exception to venue prior to filing its answer; and the answer did not reference an object to venue, or the MSC's “Choice of Law/Venue” provision. In their brief, Appellants state, APC filed an exception in March 2018 “based entirely on Louisiana statutes and jurisprudence [which] contained no mention of improper venue or Texas law.” (Emphasis in original).

“Under Louisiana law, it is acceptable for contracting parties to make a choice of state law which will govern the agreement between them. That choice will be given effect, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under La. C.C. art. 3537.” THH Properties Ltd. P'ship v. Hill, 41,038 (La. App. 2 Cir. 6/2/06), 930 So.2d 1214, 1218, citing La. C.C. art. 3540. Contracts have the effect of law for the parties, and the interpretation of a contract is the determination of the common intent of the parties. See Moreno v. Entergy Corp., 17-182, p. 5 (La. App. 5 Cir. 11/15/17), 233 So.3d 176, 181. When the words of the contract are clear, unambiguous, and lead to no absurd consequence, no further interpretation may be made, or consideration of extrinsic evidence be had in search of the parties’ intent and the contract must be enforced as written. Id.; La. C.C. art. 2046. When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id.

The forum selection clause at issue in this case reads as follows:

12. Choice of Law/Venue – This Agreement shall be governed by and interpreted in accordance with General Maritime Law, but if General Maritime Law is not applicable, the laws of the State of Texas (exclusive of any principles of conflicts of laws which would direct application of the substantive law of another jurisdiction) shall govern. In the event of a dispute over the meaning or application of this Agreement, it shall be construed fairly and reasonably and neither more strongly for nor against either party. The Parties agree that in the event any litigation arises in connection with this Agreement or any Work, any action must be brought in Harris County, Texas.

(Emphasis in original). “The interpretation of the language of a contract is a question of law subject to de novo review, while factual determinations are subject to the manifest error standard of review.” Bodenheimer v. Carrollton Pest Control & Termite Co., 17-595, p. 7 (La. App. 4 Cir. 2/14/18), 317 So.3d 351, 357. Here, the language of the clause itself is unambiguous and easily interpreted. Because the contract between the parties provided Texas law would apply if a dispute should arise and any action should be instituted in Harris County, Texas, Texas law should be applied to resolve the substantive issues between the parties.

However, we find that use of Louisiana procedural law on summary judgment is appropriate. See THH Properties Ltd. P'ship v. Hill, 41,038, p. 6 (La. App. 2 Cir. 6/2/06), 930 So.2d 1214, 1218. Generally, state courts are free to follow the state's own procedural rules. Keramidas v. Profile Shipping Ltd., 00-1852, p. 5 (La. App. 5 Cir. 4/11/01), 785 So.2d 1004, 1007, writ granted, cause remanded, 01-1372 (La. 3/15/02), 811 So.2d 891, citing Lejano v. Bandak, 97-0388, p. 13 (La. 12/12/97), 705 So.2d 158, 166. Generally, questions of venue and the enforcement of forum selection clauses are essentially procedural, rather than substantive in nature. Id. Because the validity and interpretation of forum selection clauses are regarded as procedural, they are generally controlled by state law. Id.

Motion for Summary Judgment

“Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.” Segura v. Frank, 630 So.2d 714, 723 (La. 1994). “A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue as to material fact. Choina v. Melcher, 21-537, p. 4 (La. App. 5 Cir. 3/30/22), 337 So.3d 994, 997. Appellate courts review a judgment granting a motion for summary judgment on a de novo basis. Cargill, Inc. v. Syngenta Seeds, Inc., 21-681, p. 8 (La. App. 5 Cir. 12/7/22), 355 So.3d 103, 109. Thus, this Court uses the same criteria as the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. “After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

Here, the parties do not dispute the facts, but whether the “forum selection clause” of the MSC can be enforced at this stage of the litigation. However, whether to enforce the choice of venue provision must be informed by the procedural posture of the case. For reasons explained more fully below, we find the choice of venue provision cannot be enforced at this time.

Effect of MSC Choice of Law provision on waiver of venue analysis

The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Id., citing Muller v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885. Therefore, under the contract between the parties, we must use Texas law to determine whether the forum selection clause can be enforced at this stage.

At the hearing on the motion for summary judgment, APC argued that, per the MSC, the parties also agreed to litigate any disputes by applying Texas law. APC further argued that, under Texas law, the “forum selection clause” is presumed enforceable and Appellants “have a heavy burden to show that it's unreasonable.” It cited to In re ADM Inv'r Servs., Inc., 304 S.W.3d 371 (Tex. 2010), in support of its argument that the application of Texas law must lead to a finding that it did not waive its objection to venue.

In ADM Inv'r Servs., a Texas appellate court found that the trial court abused its discretion when it found that ADM waived venue by filing an answer, a motion to dismiss – which relied on a choice-of-law and forum-selection clause in an agreement between the parties – and alternatively a motion to transfer venue at the same time.³

The test articulated in ADM Inv'r Servs. is as follows:

A trial court abuses its discretion in refusing to enforce a forum-selection clause unless the party opposing enforcement of the clause can clearly show that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial.

Id.

The Supreme Court of Texas also stressed that “the burden of proof is heavy for the party challenging “enforcement” of a forum-selection clause. Id. Additionally, the Supreme Court of Texas “[has] consistently refused to close the door to the possibility that exceptional circumstances could exist” that warranted non-enforcement of a forum selection clause in the event the challenger proves that being forced to litigate in the chosen forum would be “unreasonable or unjust, or seriously inconvenient”, but instead has chosen not to address such circumstances in earlier cases. Id. at 375-376, citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Int'l Profit Assocs., 274 S.W.3d 672, 679–80 (Tex. 2009); In re Lyon Financial Services, Inc., 257 S.W.3d 228, 231–32 (Tex. 2008); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 793 (Tex. 2005).

In Texas, “[f]orum-selection clauses, which are presumptively valid and enforceable unless shown to be unreasonable, are enforced through a motion to dismiss.” Xia v. Floyd, 638 S.W.3d. 821, 825.

However, the ADM Inv'r Servs. Court also stated that a party waives a forum selection clause by substantially invoking the judicial process to the other party's detriment or prejudice, but there is a strong presumption against such waiver, and “merely participating in litigation does not categorically mean the party has invoked the judicial process so as to waive enforcement.” ADM, 304 S.W.3d at 374. Further, “[w]aiver can be implied from a party's unequivocal conduct, but not by inaction.” Id.

In the case before us, APC appeared before the court via 1) an answer the Third Amending Petition; 2) a Peremptory Exception of No Cause of Action to the Third Amending Petition; 3) a motion for partial summary judgment based on doctrine of “unclean hands in response to the Fourth Amending Petition;” and 4) a motion for summary judgment on the enforceability of the MSC forum selection clause in response to the Fourth Amending Petition. We find that the motion for partial summary judgment based on the Louisiana “unclean hands” doctrine and the motion for summary judgment were invocations of the judicial process sufficient to waive APC's objection to venue. See ADM Inv'r Servs, supra. In the motion for partial summary judgment, APC argued that plaintiff AESI was barred from pursuing a claim against APC because the alleged fraudulent conduct of AESI's president, Brandon Cork, must be imputed to AESI and therefore, AESI cannot recover against APC, due to its unclean hands. We find this could be construed as an answer, which essentially denies plaintiffs’ allegations, and it is seeking relief – dismissal.

Further, the motion for summary judgment sought enforcement of the forum selection clause in the MSC contract, which is seeking relief – again, dismissal. Because APC failed to object to venue before “substantially invoking the judicial process to the other party's detriment or prejudice”, we find that it waived its objection to venue based on the Choice of Law/Venue provision in the MSC. See ADM Inv. Servs., 304 S.W. 3d at 374.

Further, Texas jurisprudence distinguishes forum-selection clauses from contractual venue-selection clauses. Xia v. Floyd, 638 S.W.3d 821, 825 (Tex. App. 2021). “A forum-selection clause contractually selects the adjudicative body in which jurisdiction is properly invoked, generally a nation or state; [but,] a venue-selection clause selects the geographic place of trial.” Id. at 826.⁴ However, “a contractual venue-selection clause is enforced through a timely motion to transfer venue or the issue is waived.” Id. at 825 (emphasis added); Tex. R. Civ. P. 86(1); See also Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., 455 S.W.3d 573, 576 (Tex. 2014) (citing Tex. R. Civ. P. 86 and finding “objections to improper venue must be made at the outset of the case.”). In this case, the MSC provision is captioned “12. Choice of Law/Venue” and specifies “any action should be brought in Harris County, TX.” (Emphasis added.) Thus, under Texas law, we find the provision must be construed as a “contractual venue selection clause”, and APC did not timely file a motion to transfer venue.

Considering the foregoing, we find the trial court correctly determined Texas law should be applied in analysis of the substantive issues but erred when it determined the MSC “Choice of Law/Venue” provision could be enforced in its entirety at this stage of the proceedings. We further find the result is the same in this case, regardless of whether Texas or Louisiana law is followed.⁵ We find APC waived its objection to venue, and appellants’ assignment of error regarding the enforcement of the forum selection clause has merit. Accordingly, we reverse the trial court's judgment granting summary judgment on the issue of enforcement of the choice of venue provision of the MSC.

Howard and Personal Jurisdiction

Appellants argue they established sufficient minimum contacts in this matter, as Dana Howard managed multiple remediation sites in Louisiana for APC, served as the remediation project manager at the Branch and Sarepta, Louisiana sites for APC from 2008 through 2014, and was a project manager at another site during that same period. During her deposition, Howard stated that she usually communicated by phone and email with AESI and would occasionally come to Louisiana for project meetings. Appellants allege she “directed and concealed environmental liabilities in Louisiana.” They further allege that Howard's hiring of a Louisiana company to work on the Carpenter project in Louisiana is a contact with the State significant enough to support the exercise of personal jurisdiction. Appellants contend Howard's actual contacts with the State, in addition to her participation in out-of-state “tortious activities” that led to “seriously harmful” in-state consequences, justify overruling her exception. They contend the trial court erred when it found Howard was not “at home” in Louisiana and therefore could not be sued here.

Appellants also urge “APC took steps to destroy AESI” after Palowsky informed the company of the scheme Howard facilitated. They argue their “mere economic loss within the state was sufficient to support exercise of personal jurisdiction”, citing Lifecare Hosps., Inc. v. B & W Quality Growers, Inc., 39,065 (La. App. 2 Cir. 10/27/04), 887 So.2d 624, writ denied, 04-2935 (La. 2/4/05), 893 So.2d 872. (Emphasis added by appellants).

Dana Howard maintains that she was a Texas citizen and domiciliary at all relevant times; she had no contacts with Louisiana regarding the Carpenter project; Appellants’ contention that she visited Louisiana related to the Carpenter project was false; and her other projects did not require significant contact with Louisiana. She also argues that the standard of review of the trial court's decision is manifest error, not de novo, and the trial court placed the correct evidentiary burden on Appellants. Lastly, she asserts the court lacked general and specific jurisdiction over Howard, she did not have minimum contacts with the forum, and appellants’ claims did not arise from or relate to her limited contacts with Louisiana.

Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Eng'g Dynamics, Inc. v. Massachusetts Inst. of Tech., 05-295, p. 7 (La. App. 5 Cir. 11/29/05), 917 So.2d 1168, 1174. However, the trial court's factual findings underlying the decision are reviewed under the manifest-error standard of review. Id.

A court's exercise of personal jurisdiction may be “specific” or “general.” A court may exercise specific jurisdiction over a defendant when the alleged cause of action arises out of or is related to the Defendant's purposeful contacts with the forum state. Id. A court may exercise general jurisdiction over a defendant when the defendant has engaged in “continuous and systematic contacts” with the forum, but the contacts are not necessarily related to the lawsuit. Id. at 1173-74. In a general jurisdictional case, the threshold for these contacts is higher and more substantial than required in a specific jurisdictional case. Id.

“The original long-arm statute, La. R.S. 13:3201, listed specific activities by a defendant which would subject it to the personal jurisdiction of this state ⁶ [.]” Alonso v. Line, 02-2644, p. 5 (La. 5/20/03), 846 So.2d 745, 749, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d. 311 (2003). “Now, under the express wording of the present Long-arm Statute, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements.” Id., citing Petroleum Helicopters, Inc. v. Avco Corp., 513 So.2d 1188, 1192 (La. 1987). However, the specific contacts listed in La. R.S. 13:3201A, which once set out the limits of Louisiana's long-arm jurisdiction, now serve as a “valuable list of ․ contacts sufficient to give rise to in personam jurisdiction.” Id., citing Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 2.3, p. 15 (1991) (citing La. R.S. 13:3201, cmt. 1987).

The test has evolved into a two-part test, 1) the “minimum contacts” prong, which is “satisfied by a single act or actions by which the plaintiff shows the defendant ‘purposefully’ avails [herself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws”; then 2) after the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness arises” and the burden then shifts to the defendant to prove the exercise of jurisdiction “would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant's minimum contacts with the forum.” Alonso, 846 So.2d at 750-51.

Here, we find Appellants have not established that Dana Howard has had sufficient minimum contacts with Louisiana to establish general jurisdiction. Appellants’ allegations do not rise to a level of finding that Howard's “affiliations with the State are so ‘continuous and systematic’ as to render [her] essentially at home in the forum State.” See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011), citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Likewise, we find Appellants have failed to meet the lower threshold required for the exercise of specific jurisdiction. The record only shows that phone calls and emails were exchanged between Appellants and Howard regarding the Carpenter project specifically, which is the activity from which Appellants’ cause(s) of action arise. Therefore, we find that this assignment of error is without merit.

DECREE

Based on the foregoing, the trial court judgment granting APC's Motion for Summary Judgment is reversed, and the judgment sustaining Dana Howard's Peremptory Exception of Personal Jurisdiction is affirmed. Accordingly, the matter is remanded for further proceedings consistent with this opinion.

REVERSED IN PART; AFFIRMED IN PART; REMANDED

FOOTNOTES

1.   Before the trial court handed down its judgment, APC also filed suit against AESI in federal court in the Southern District of Texas, claiming that any dispute between the parties had to be litigated in Texas pursuant to a forum selection clause in the Master Service Contract (MSC) between the parties. The Texas federal district court denied AESI's motion for stay pending a final judgment on the APC motion for summary judgment and subsequently granted summary judgment in favor of APC on another issue. That judgment is being appealed to the U.S. Fifth Circuit Court of Appeals.

2.   The July 2, 2024 judgment granted APC's motion for summary judgment and dismissed all of plaintiffs’ claims against APC without prejudice. Thus, regardless of the parties’ arguments, because the July 2, 2024 judgment dismissed all of plaintiffs’ claims against APC, the judgment is a valid, final judgment, subject to this court's appellate review. See La. C.C.P. arts. 1841, 1911, 1915, and 2083.

3.   We observe that a Louisiana court would have reached a similar result under the facts of that case: a motion to dismiss, alternatively a motion to transfer venue, does not waive an objection to venue, particularly when filed along with (or prior to) the answer, finding otherwise would be legal error. See Judge Steven R. Plotkin, Ret., Mary Beth Akin, J.D., 2 La. Prac. Civ. Proc., Art. 928. Time of pleading exceptions., (2025 ed.); Bickham v. Sub Sea Int'l, Inc., 617 So.2d 483, 484 (La. 1993).

4.   Compare with Fidelak v. Holmes European Motors, L.L.C., 13-691, p. 3 (La. 12/10/13), 130 So.3d 851, 853 (“A forum selection clause is a provision in a contract that mandates a particular state, county, parish, or court as the proper venue in which the parties to an action must litigate any future disputes regarding their contractual relationship.”) (Emphasis added).In Louisiana, on the other hand, the terms “forum selection clause” and “venue selection clause” are used interchangeably. See Police Jury of Calcasieu Par. v. Indian Harbor Ins. Co., 24-449, p. 8 (La. 10/25/24), 395 So.3d 717, 724-725, reh'g denied, 24-449 (La. 12/12/24), 397 So.3d 424; Richard's Clearview, LLC v. Starr Surplus Lines Ins. Co., 24-114, p. 4 (La. App. 5 Cir. 6/5/24), 391 So.3d 739, 743, writ granted, cause remanded, 24-864 (La. 2/5/25), 400 So.3d 95, and writ denied, stay denied, 25-462 (La. 4/23/25), 407 So.3d 619.

5.   The Motion for Partial Summary Judgment based on “unclean hands” and Motion for Summary on the enforceability of the MSC forum selection clause filed in response to the Fourth Amending Petition are “pleading[s] seeking relief” as contemplated by Article 928. Therefore, we pretermit discussion of whether APC's answer to the Third Amending Petition effectively waived its right to object to venue after Appellants filed the Fourth Amending Petition.Objections to venue are waived by the failure of the defendant to timely plead the declinatory exception as provided by Article 928. La. C.C.P. art. 44(C). Declinatory exceptions “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 signing of a default judgment.” La. C.C.P. art. 928. [Emphasis added.]

6.   La. R.S. 13:3201 originally stated:A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the non-resident's:(a) transacting any business in this state:(b) contracting to supply services or things in this state;(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or(e) having an interest in, using, or possessing a real or immovable property in this state. Alonso, 846 So.2d at 749-50.

JOHNSON, J.