Opinion
NUMBER 2018 CA 1378
04-17-2019
BIENVENIDO SANTANA-PEGUERO AND GERARDO VERAS-DIAZ v. NICHOLAS A. BAYER AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Lillian A. Williams Jevan S. Fleming Ron A. Austin Gretna, LA Counsel for Plaintiffs/Appellants, Bienvenido Santana-Peguero & Gerardo Veras-Diaz Tucker F. Giles Baton Rouge, LA Sherona Graham Alexis Metairie, LA Counsel for Defendants/Appellees, State Farm Mutual Automobile Insurance Company & Nicholas A. Bayer
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number C665588 Honorable William A. Morvant, Judge Presiding Lillian A. Williams
Jevan S. Fleming
Ron A. Austin
Gretna, LA Counsel for Plaintiffs/Appellants,
Bienvenido Santana-Peguero &
Gerardo Veras-Diaz Tucker F. Giles
Baton Rouge, LA
Sherona Graham Alexis
Metairie, LA Counsel for Defendants/Appellees,
State Farm Mutual Automobile
Insurance Company & Nicholas A.
Bayer BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
On February 8, 2016, plaintiffs, Bienvenido Santana-Peguero and Gerardo Veras-Diaz, were involved in an automobile accident in East Baton Rouge Parish with defendant, Nicholas A. Bayer. On February 6, 2017, plaintiffs filed a petition for damages against Bayer and his insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), in the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson. After discovering that only the first and fourth pages of the original petition were transmitted with the original filing, plaintiffs filed an amended petition for damages on February 14, 2017, again in Jefferson Parish. The petition and amended petition were served upon Bayer on March 6, 2017, and upon State Farm on March 7, 2017.
Bayer and State Farm, collectively "State Farm," responded by filing an exception of improper venue, contending that the action was improperly filed in Jefferson Parish where: (1) the accident occurred in East Baton Rouge Parish; (2) Bayer is a resident of Ascension Parish; (3) venue was proper as to State Farm as a foreign insurer in East Baton Rouge Parish; and (4) plaintiff, Bienvenido Santana-Peguero, who was operating a vehicle owned by Gerardo Veras-Diaz, was a resident of Terrebonne Parish. Prior to the hearing on the exception, plaintiffs filed an unopposed motion to transfer the matter to the Nineteenth Judicial District Court in and for East Baton Rouge Parish.
An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. LSA-C.C.P. art. 74.
An action against an individual who is domiciled in the state shall be brought in the parish of his domicile. LSA-C.C.P. art. 42(1).
An action against a foreign or alien insurer shall be brought in the parish of East Baton Rouge. LSA-C.C.P. art. 42(7).
Once the matter was transferred, State Farm filed a peremptory exception of prescription, contending that the original petition for damages filed by plaintiffs did not plead any facts and did not state a cause of action so as to place anyone on notice of the claims being filed against them as required by LSA-C.C.P. art. 891(A). State Farm contended that because the document filed prior to the tolling of prescription did not meet the pleading requirements of this State, it failed to interrupt prescription. State Farm further averred that the filing of the amended petition after prescription had tolled did not relate back to the original filing, as the original filing contained no facts as to which it could relate. State Farm thus contended that the filing of the original petition in a parish of improper venue did not serve to interrupt prescription, as prescription was only interrupted as to any defendant served with process during the prescriptive period pursuant to LSA-C.C. art. 3462, and that because defendants were served after prescription had tolled, plaintiffs' lawsuit and claims had prescribed.
Louisiana Code of Civil Procedure article 891(A) provides, in part, that:
The petition shall ... set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; ... and shall conclude with a prayer for judgment for the relief sought.
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. LSA-C.C. art. 3492.
Louisiana Civil Code article 3462 provides that:
Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.
Following a hearing, the trial court rendered judgment on June 28, 2018, maintaining the exception of prescription and dismissing plaintiffs' claims and lawsuit with prejudice, at plaintiffs' costs, based on its finding that prescription was not interrupted because the original petition was filed in a parish of improper venue and the defendants were not served until after the prescriptive period had tolled.
Plaintiffs then filed the instant appeal, contending that the trial court erred in maintaining the exception of prescription where the defendants had tacitly renounced their right to re-urge the exception of improper venue by not opposing, or otherwise consenting to, the transfer of venue to East Baton Rouge Parish.
Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. LSA-C.C. art. 3464. Such an acknowledgment is not subject to any particular formality. It may be written or verbal, express or tacit. Titus v. IHOP Restaurant, Inc., 2009-951 (La. 12/1/09), 25 So. 3d 761, 765. Acknowledgment involves an admission of liability, either through explicit recognition of a debt owed, or through actions of the debtor that constitute a tacit acknowledgment. Bracken v. Payne and Keller Company, Inc., 2006-0865 (La. App. 1st Cir. 9/5/07), 970 So. 2d 582, 588. A tacit acknowledgment arises from a debtor's acts of reparation or indemnity, unconditional offers or payments, or actions which lead the creditor to believe that the debtor will not contest liability. Duet v. Landry, 2017-0937 (La. App. 1st Cir. 4/30/18), 250 So. 3d 918, 925.
In Riley v. Louisiana I - Gaming, 98-1106 (La. App. 5th Cir. 3/10/99), 732 So. 2d 541, writ denied, 99-0997 (La. 5/28/99), 743 So. 2d 674, a case which is factually and procedurally similar to the instant case, plaintiff filed suit against Boomtown Casino for damages allegedly sustained in a trip-and-fall accident within the one-year prescriptive period in a court of improper venue. Service was not made on Boomtown until seventeen months later, i. e., well after prescription had run. Following Boomtown's filing of an exception of improper venue, plaintiff filed an unopposed motion to transfer venue. After the matter was transferred, Boomtown filed an exception of prescription, arguing that plaintiff's state law claims had prescribed. Riley v. Louisiana I - Gaming, 732 So. 2d at 543-544. In response, plaintiff therein argued that: (1) prescription was interrupted because Boomtown only filed an exception to venue initially and did not file its exception of prescription at that time; and (2) Boomtown waived its right to plead prescription by consenting to the transfer of venue of the case. Riley v. Louisiana I - Gaming, 732 So. 2d at 544. The trial court granted Boomtown's exception of prescription as to plaintiff's state law claims. On appeal, the Fifth Circuit affirmed, rejecting both of plaintiff's arguments and finding that:
Once the 1 [sic] year prescriptive period had run and Boomtown had been neither sued in a court of competent jurisdiction and venue, nor served, prescription had run. Boomtown could have committed an act that might have waived their exception to venue, but they did not. They timely filed the venue exception. As a result, plaintiff admitted to the improper venue and moved, without objection, to have the case transferred to the Twenty-Fourth Judicial District Court, a court of proper venue. Thereupon, Boomtown asserted their prescription exception. The exception of prescription may be pleaded at any time prior to submission of the case for decision. La. C.C.P. art. 928. Prescription, having tolled, was not interrupted by the transfer of the case. Mayeux v. Martin, 247 So. 2d 198 (La.App. 3rd Cir. 1971).Riley v. Louisiana I - Gaming, 732 So. 2d at 544.
On review, we find no merit to plaintiffs' argument that the defendants' consent or failure to object to plaintiffs' motion to transfer venue herein constitutes a tacit acknowledgment of the plaintiffs' rights, or the defendants' liability, so as to interrupt prescription. See Riley v. Louisiana I - Gaming, 732 So. 2d at 544. Instead, we agree with the trial court's finding that plaintiffs' lawsuit, filed in a parish of improper venue, did not serve to interrupt prescription, and that prescription could have only been interrupted by serving a defendant with process during the prescriptive period. See LSA-C.C. art. 3462. Because the prescriptive period tolled on February 8, 2017, and the defendants were not served until March of 2017, the trial court correctly determined that plaintiffs' suit was prescribed. See LSA-C.C. art. 3492.
To the extent that plaintiffs rely on Foster v. Breaux, 270 So. 2d 526 (La. 1972), we find the facts and procedural posture of Foster distinguishable from the instant case. --------
Accordingly, after a thorough review of the record and relevant jurisprudence, we find no error in the trial court's determination that the plaintiffs' filing of a lawsuit in a parish of improper venue did not serve to interrupt prescription. Accordingly, we hereby affirm the June 28, 2018 judgment of the trial court. This memorandum opinion is issued in accordance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B). Costs of this appeal are assessed to the plaintiffs/appellants, Bienvenido Santana-Peguero and Gerardo Veras-Diaz.
AFFIRMED.