Opinion
2023 CA 0663
12-27-2023
VINCENT ALEXANDER AND VINCENT ALEXANDER INSURANCE AGENCY, LLC v. LOUISIANA DEPARTMENT OF INSURANCE, JAMES J. DONELON, J. DAVID CALDWELL AND DOMINIQUE JONES
Ernest Jones New Orleans, Louisiana Ronald L. Wilson New Orleans, Louisiana Counsel for Plaintiffs/Appellants Vincent Alexander and Vincent and Alexander Insurance Agency, LLC Harry J. Philips, Jr. Shelby G. LaPlante, Baton Rouge, Louisiana Counsel for Defendants/Appellees Louisiana Department of Insurance, James J. Donelon, J. David Caldwell, and Dominique Jones
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C723364 The Honorable Wilson E. Fields, Judge Presiding
Ernest Jones New Orleans, Louisiana Ronald L. Wilson New Orleans, Louisiana Counsel for Plaintiffs/Appellants Vincent Alexander and Vincent and Alexander Insurance Agency, LLC
Harry J. Philips, Jr. Shelby G. LaPlante, Baton Rouge, Louisiana Counsel for Defendants/Appellees Louisiana Department of Insurance, James J. Donelon, J. David Caldwell, and Dominique Jones
BEFORE: THERIOT, PENZATO, AND LANIER, JJ.
THERIOT, J.
Vincent Alexander and Vincent Alexander Insurance Agency, LLC appeal the 19th Judicial District Court's February 9, 2023 judgment, which dismissed their suit as prescribed. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellants in this matter are Vincent Alexander and Vincent Alexander Insurance Agency, LLC. On September 12, 2022, Appellants filed a "Petition for Damages for Deprivation of Rights," naming as defendants the Louisiana Department of Insurance ("LDI"); James J. Donelon, individually and in his official capacity as the Commissioner of Insurance for the State of Louisiana; J. David Caldwell, individually and in his official capacity as Executive Counsel for the Louisiana Department of Insurance; and Dominique Jones, individually and in her official capacity as Insurance Administrator of the Division of Insurance Fraud &Enforcement for the Louisiana Department of Insurance (collectively, "Appellees").
The petition alleged that Vincent Alexander is the owner and sole member of Vincent Alexander Insurance Agency, LLC, and that Mr. Alexander had been licensed by LDI as an insurance producer since January 7, 1988. The petition further alleged that, on September 16, 2020, LDI issued a notice of summary suspension, revocation, and cease and desist order relating to Mr. Alexander's insurance producer's license. According to the petition, LDI alleged that in four matters, an employee of Vincent Alexander Insurance Agency, LLC accepted premium payments for insurance policies but did not remit the premium payments to insurers.
Appellants appealed LDI's action and requested a stay of the revocation pending a decision on the appeal. Appellants assert that their request for stay was denied and the revocation of Mr. Alexander's license was affirmed by an administrative law judge on March 23, 2021 and by a trial court judge on November 16, 2021. This court affirmed the trial court's ruling on February 24, 2023. See Alexander v. Louisiana Dep't of Ins., 2022-0769 (La.App. 1 Cir. 2/24/23), 2023 WL 2196091 (unreported).
Appellants claim that, on May 6, 2022, an employee of LDI filed a lawsuit against LDI alleging specific information concerning the unlawful acts of the defendants in this matter, including specifically mentioning "the differential treatment of petitioners in paragraph 27 thereof." Appellants allege that named defendants Commissioner Donelon and Mr. Caldwell formulated an election strategy whereby they exploited LDI's fraud investigations to build Commissioner Donelon's image as being tougher on insurance fraud crimes. Appellants claim that this purported plot was intended to increase Commissioner Donelon's popularity in the Lafayette area. Appellants assert that they were targeted by the defendants "for harsher penalties because there was a belief that appearing 'tough' on an African-American activist would result in greater acceptance of [Commissioner] Donelon by a specific segment of the Lafayette area voters."
Appellants claimed that the purported scheme violated 42 U.S.C.A. § 1983, and La. Civ. Code art. 2315. Appellants alleged that they suffered the loss of community, professional standing, and reputation, as well as business income and financial opportunities. Appellants ultimately sought an order declaring the revocation of Mr. Alexander's insurance license void and unconstitutional, as well as an award of compensatory damages, punitive damages, and reasonable attorney's fees and costs.
On October 26, 2022, Appellees filed peremptory exceptions of prescription and no cause of action. A hearing on Appellees' exceptions was held on January 23, 2023, after which the trial court took the matter under advisement. On January 30, 2023, the trial court orally granted Appellees' peremptory exception of prescription. Because of its ruling, the trial court took no action on Appellees' peremptory exception of no cause of action. A written judgment to that effect was signed by the trial court on February 9, 2023. This appeal followed.
ASSIGNMENTS OF ERROR
Appellants assign the following as error:
(1) The trial court erred in granting Appellees' exception of prescription and wrongfully denying Appellants the benefit of the judicially created exception to the doctrine of prescription, to wit, contra non valentem.
(2) The trial court erred in adopting and accepting Appellees' memorandum as its Reasons for Judgment.
STANDARD OF REVIEW
Prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished. Williams v. City of Baton Rouge, 20160932 (La.App. 1 Cir. 4/12/17), 2017 WL 1376582 at *2 (unreported). Ordinarily, the exceptor bears the burden of proof at the trial on the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Dumas v. Louisiana Bd. of Ethics, 2022-0994 (La.App. 1 Cir. 2/24/23), 361 So.3d 1035, 1039, writ denied, 2023-00435 (La. 5/16/23), 360 So.3d 836.
The standard of review of a judgment pertaining to an exception of prescription turns on whether evidence is introduced at the hearing on the exception. Louisiana Code of Civil Procedure article 931 expressly allows evidence to be introduced to support or controvert a peremptory exception, when the grounds thereof do not appear from the petition. If no evidence is submitted at the hearing, the exception must be decided upon the facts alleged in the petition with ail of the allegations accepted as true. In that case, the reviewing court is simply assessing whether the trial court erred as a matter of law. Dumas, 361 So.3d at 1039. In the instant matter, no evidence was introduced at the hearing and, thus, we must determine whether the trial court erred as a matter of law.
DISCUSSION
Assignment of Error # 1
In their first assignment of error, Appellants argue that the trial court erred in granting Appellees' exception of prescription and wrongfully denying Appellants' the benefit of contra non valentem.
When determining the applicable prescriptive period, courts first look to the character of the action disclosed in the pleadings. Williams, 2017 WL 1376582 at *2. Appellants' petition contains causes of action based on 42 U.S.C.A. § 1983 and La. Civ. Code art. 2315.
42 U.S.C.A. § 1983 provides a civil remedy for the violation of a person's constitutional rights and states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]Brown v. Bd. of Trustees-Mun. Police Employees' Ret. Sys., 2017-0295 (La.App. 1 Cir. 12/18/17), 234 So.3d 260, 267, writ denied, 2018-0102 (La. 3/2/18), 269 So.3d 711. Louisiana's one-year liberative prescription for delictual actions, set forth in La. Civ. Code art. 3492, provides the limitation period for § 1983 actions. See SS v. State ex rel. Dep't of Soc. Servs., 2002-0831 (La. 12/4/02), 831 So.2d 926, 931; see also El-Mumit v. Fogg, 1988-0356 (La.App. 1 Cir. 9/28/17), 232 So.3d 590, 596.
Louisiana Civil Code article 2315 provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The general one-year prescriptive period contained in La. Civ. Code art. 3492 governs Appellants' tort claims unless they can show an exception established by legislation. See SS, 831 So.2d at 931. Louisiana Civil Code article 3492 states in relevant part, "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injuiy or damage is sustained."
Appellees assert that the alleged injury in this case was sustained on September 16, 2020, the date LDI issued its notice of summary suspension, revocation, and cease and desist order relating to Mr. Alexander's insurance license. Accordingly, Appellees assert that Appellants had until September 16, 2021 to timely file their petition. Because the petition was not filed until September 12, 2022, Appellees assert that Appellants' petition is prescribed on its face.
Appellants argue in response that focusing solely on the date of injury and the date of filing is not dispositive of whether a claim has prescribed on its face. Appellants cite Abrams v. Herbert, 590 So.2d 1291, 1295 (La.App. 1 Cir. 1991), in which this court states that whether a pleading has prescribed on its face must be determined, in part, according to the date plaintiff alleged knowledge of the tortious act, the damage, and the causal relation between the wrongful act and the damage. We note that Abrams involves a medical malpractice suit. See Abrams, 590 So.2d 1291.
However, in East in v. Entergy Corp., 2003-1030 (La. 2/6/04), 865 So.2d 49, 54, an age discrimination case, the Supreme Court of Louisiana found several former employees' claims to be facially prescribed when each waited more than one year from the date the allegedly discriminatoiy decisions were made and communicated to them. Indeed, it is well-settled that the damage is sustained in any employment discrimination case at the earlier of the date the employee is informed of his termination or his actual separation from employment. See Bias v. Haley, 2023-0281 (La.App. 1 Cir. 11/3/23), ____So.3d____, 2023 WL 7272169 at *7, citing Eastin, 865 So.2d at 53-54.
Because there is no majority in Eastin, we recognize that Eastin is of limited precedential value. See Eastin, 865 So.2d at 57; see also Williams v. The Library, 2012-0220 (La.App. 1 Cir. 11/2/12), 111 So.3d 356, 360.
The scenario before us, wherein Mr. Alexander's license to procure insurance was revoked by LDI, is more analogous to an employment discrimination case than a medical malpractice case. Accordingly, we find that the alleged damage in the present case was sustained on September 16, 2020, when LDI issued a notice of summary suspension, revocation, and cease and desist order relating to Mr. Alexander's insurance producer's license. Appellants' last day to timely file their petition was September 16, 2021. Therefore, prescription is evident on the face of the petition.
Because prescription is evident on the face of the pleadings, the burden shifts to Appellants to show the action has not prescribed. Dumas, 361 So.3d at 1039. Appellants do not dispute that a one-year prescriptive period is applicable to their claims. Instead, they argue that the legal doctrine of contra non valentem applies and suspended prescription in the present case.
The doctrine of contra non valentem provides that prescription does not run against one who is ignorant of the facts upon which their cause of action is based and applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. See Dumas, 361 So.3d at 1039-40. The Supreme Court of Louisiana has recognized four limited situations where the doctrine applies to prevent the running of prescription. See Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d 206, 211. The only arguments raised by Appellants in this area relate to the fourth element, which is known as the "discovery rule" and provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Dumas, 361 So.3d at 1040; Wimberly, 635 So.2d at 211.
The remaining three categories are (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. Wimberly, 635 So.2d at 211.
Under the discovery rule, prescription begins to run when a party has "actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort." Babineaux v. State ex rel. Dept, of Transp. and Development, 2004-2649 (La.App. 1st Cir. 12/22/05), 927 So.2d 1121, 1123. An injured party has constructive notice when he possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry. The prescriptive period commences when enough notice to call for an inquiry of a claim exists, not when an inquiry reveals the facts or evidence to sufficiently prove the claim. Dumas, 361 So.3d at 1040.
The alleged injury in this case is the September 16, 2020 notice of summary suspension, revocation, and cease and desist order. Appellants assert that they were not aware of the unlawful motive behind the revocation until May 6, 2022, when an LDI employee allegedly filed suit against LDI and referenced Appellants in her petition. Appellants argue as a result that prescription did not begin to run until May 6, 2022, which they assert is the first day that they could have known about the alleged discrimination.
The "discovery rule" is only to be applied in extreme or exceptional circumstances. The Supreme Court of Louisiana has clarified that the principle of contra non valentem will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. See Marin v. Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234, 245-46. However, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription, unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by tortious acts. The overriding issue is the reasonableness of the plaintiffs act, after considering his education and level of intelligence, in light of the nature of the defendant's conduct. Oil Ins. Ltd. v. Dow Chern. Co., 2007-0418 (La.App. 1 Cir. 11/2/07), 977 So.2d 18, 22.
Contra non valentem does not suspend prescription when a litigant is perfectly able to bring his claim, but fails to do so. Moreover, courts refuse to apply the doctrine when the failure to timely assert a cause of action is based on a lack of diligence by the plaintiff and the facts giving rise to the cause of action are "reasonably knowable" within the prescriptive period. Williams v. The Library, 2012-0220 (La.App. 1 Cir. 11/2/12), 111 So.3d 356, 360.
Importantly, in Eastin, 865 So.2d at 56, the Supreme Court of Louisiana stated:
We recognize a distinct difference between learning of a lawsuit, learning of others being terminated for age-related reasons, and the situation we have here, where the causes of action accrue at the termination and prescription immediately commences yet the aggrieved party does nothing for years to determine if they have a cause of action. It is important to note that the first two situations, learning of another's law suit or discriminatory practices occasioned upon another, do not give rise to one's own rights to or the knowledge that one has a cause of action. On the other hand, learning of one's own termination does give rise to the knowledge of a cause of action and starts the proverbial clock's ticking.Eastin, 865 So.2d at 56.
The court in Eastin further distinguished the case before it from those in which the doctrine has traditionally been applied: those cases involving medical malpractice actions (In Re Medical Review Panel of Howard, 573 So.2d 472 (La. 1991); Branch v. Willis-Knighton Medical Center, 92-3086 (La. 4/28/94), 636 So.2d 211, overruled on other grounds by David v. Our Lady of the Lake Hosp., Inc., 2002-2675 (La. 7/2/03), 849 So.2d 38 [Prescriptive period did not commence until plaintiffs discovered the damage, the delict and their relationship, when disease was diagnosed]); long-latency diseases (Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524 (5 Cir. 1995) [Plaintiff cannot leam of damages suffered until many years after exposure]; Cole v. Celotex, 620 So.2d 1154 (La. 1993) [Damage is considered to have been sustained only when it has manifested itself with sufficient certainty to support the accrual of the cause of action]; Watkins v. J. Ray McDermott, Inc., 466 So.2d 636 (La.App. 5 Cir. 1985), Richardson, Jr. v. Avondale Shipyards, Inc., 600 So.2d 801 (La.App. 5 Cir. 1992) [Where a progressive occupational disease is involved, prescription begins to run when the disease has manifested itself and the victim is aware of it]); or torts involving juveniles (Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So .2d 206 [Doctrine of contra non valentem suspended running of prescription until parents of molested child learned about molestation]). The court in Eastin noted that the above cases are easily distinguishable because the plaintiffs in those cases were prevented from knowing of their damages until some time after the action or inaction of the defendant, i.e. the damages manifested at a later date. See Eastin, 865 So.2d at 55, n.4.
We find that the information immediately available to Appellants was sufficient to create excitement, incite curiosity, and/or a reasonable desire to make further inquiry into the cause of the accident. See Babineaux, 927 So.2d at 1125. We note that Mr. Alexander has already engaged in litigation relating to the revocation of his license to procure insurance and that this court affirmed the revocation, finding that Mr. Alexander's actions demonstrated incompetence, untrustworthiness, or financial irresponsibility in the conduct of business such as might endanger the public. See Alexander, 2023 WL 2196091 at *5.
Further, even accepting the facts alleged in the petition as true, the record before us contains no evidence of the alleged lawsuit that Appellants claim gave them notice of the discrimination, nor did Appellants present any evidence at the hearing on Appellees' exception of prescription. The trial court's ruling was legally correct. This assignment of error lacks merit.
When the grounds of a peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934 (emphasis added). Here, the judgment is silent on whether Appellants' petition could be amended to remove the grounds of prescription; we interpret this silence as the trial court's refusal to allow the amendment. Where a plaintiffs cause of action is prescribed on its face, and the plaintiff had an opportunity but failed to introduce evidence at the hearing of a peremptory exception that its claim was timely filed, the plaintiff fails to adequately establish that amendment of its petition might remove the grounds of the objection. We find no reason to grant Appellants an opportunity to amend the petition. See All. Hosp., L.L.C, v. Esquivel, 2020-0807 (La.App. 1 Cir. 2/24/21), 322 So.3d 253, 257-58; see also Thomas v. State Emps. Grp. Benefits Program, 2005-0392 (La.App. 1 Cir. 3/24/06), 934 So.2d 753, 759.
Assignment of Error # 2
In their second assignment of error, Appellants argue that the trial court erred in adopting and accepting Appellees' memorandum as its Reasons for Judgment. Appellants argue that the reasons for judgment should be disregarded as a result. We note that oral or written reasons for judgment form no part of the judgment, and appellate courts review judgments, not reasons for judgment. See Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572.
The better course is for a trial court to author any reasons for judgment itself, thereby giving us the benefits of its thoughts and insights into the litigation under consideration. It is one thing for victorious counsel to prepare a judgment comprised of the stark, final determinations of a case. It is quite another for a counsel to present as the inner thoughts of a judge what amounts to a well-written brief. See King v. Allen Ct. Apartments II, 2015-0858 (La.App. 1 Cir. 12/23/15), 185 So.3d 835, 839, writ denied, 2016-0148 (La. 3/14/16), 189 So.3d 1069. This court in King declined to rule on whether the trial court's adoption of a party's memoranda as reasons complies with the mandate of La. C.C.P. art. 1917(A). See King, 185 So.3dat 838.
Having resolved the issues raised in this appeal without reliance on the memorandum in support of Appellees' exception of prescription, which the trial court adopted as reasons, we find it unnecessary to address this issue and pretermit such a discussion. See People for the Ethical Treatment of Animals v. Bd. of Supervisors of Louisiana State Univ., 2022-0976 (La.App. 1 Cir. 9/19/23), ____So.3d_____, 2023 WL 6119352 at *9 n.13.
DECREE
For the above and foregoing reasons, we affirm the 19th Judicial District Court's February 9, 2023 judgment dismissing Vincent Alexander and Vincent Alexander Insurance Agency, LLC's suit as prescribed. Costs of the appeal are assessed to Appellants, Vincent Alexander and Vincent Alexander Insurance Agency, LLC.
AFFIRMED.