Helen Wells, Legal Tutor of Semeyon Alexander, a/k/a Semeyon Weber VS The City of Hammond and Daniel Bear Bryant
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0469 HELEN WELLS LEGAL TUTOR OF S A ak a S W VERSUS THE CITY OF HAMMOND AND DANIEL BEAN BRYANT Judgment Rendered November CJ Appealed Twenty 2 2007 from the First Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 2003 001809 Honorable M J Courtney Wilson Douglas Hughes Judge Attorney for Plaintiff Metairie LA Appellant Helen Wells Ashley E Sandage Attorney Defendant Shaan M Aucoin City Hammond LA BEFORE for CARTER C J Lp Appellee of Hammond PETTIGREW AND WELCH JJ WELCH J Plaintiff Helen Wells appeals judgment of the trial a court sustaining peremptory exception raising the objection of prescription and dismissing this lawsuit against the City of Hammond We reverse a tort and remand BACKGROUND On May 16 2002 plaintiff the legal tutor of S A filed a lawsuit on his behalf in the United States District Court for the Eastern District of Louisiana against the City of Hammond and Lieutenant Sal Mike on June 23 24 or incarcerated 2001 at the Daniel under 42 U S C S over all 1981 state knew Jail where the Plaintiff asserted and asserted et seq claims S A from on the theory that it s course civil Bryant s was damages sued to raped by cause of action the in the complaint individually and in his safety of S A because he as Lt Mike s state protect law claims liable because Lt Mike should have known of for emotional distress and all recover was of conduct and failed to course was to of conduct and failed to protect S A from to rights implicit or that Lt Mike whom she sued Bryant The City of Hammond employer a 17 year old was supplemental jurisdiction of the federal explicitly pled should have known of petition alleged that by the Hammond City Police and capacity acted with reckless indifference or Bryant arrested City Bryant Specifically plaintiff averred official was Hammond another inmate comi SA The Bryant Plaintiff sought which she may be entitled Lt Mike and the the federal proceeding City On of Hammond filed motions for summary judgment in January motions for summary judgment been filed and the compensatory and legal relief 9 2003 the federal district court observing that no memorandum in granted the opposition had Upon reviewing the memorandum and exhibits filed by the defendants applicable law the fact and that defendants court were found that there entitled to was no judgment 2 as a genuine issue matter of law of material The court dismissed all of plaintiff s claims against Lt Mike and plaintiff s official capacity claim against the City of Hammond On 15 April 2003 Stipulation Because this document does precisely what On and in the record there is 12 2003 Bryant in the 21 st plaintiff filed this action against again asserted that incarcerated at art the Hammond on June 23 2315 because its In the court stipulation jailors on 16 May were 2002 pending on was the City S A was sexually to was of Hammond Tangipahoa arrested and assaulted was by fellow liable under La C C protect S A from Bryant and all entitled res copy of the prescription 15 2003 She in federal court less than state court City of Hammond prescription and a was negligent in failing tolled April within the one year prescriptive filed way to discern on her state ill lawsuit from that disposition of the lawsuit which she claimed occurred by the incident sued upon and the The court petition plaintiff asserted that the timely filing of her lawsuit of dismissal were no damages for physical pain and suffering emotional distress date until the final claims 24 2001 City jail where he compensatory and legal reliefto which she federal or Bryant She claimed that the City of Hammond Plaintiff sought filed in federal Judicial District Court for the Parish of Therein she inmate was 1 accomplished through the stipulation of dismissal was May of Dismissal not appear a period filed judicata petition in In a urged that subtracting the one year had time her elapsed between the lawsuit and therefore her lawsuit was filed for delictual actions peremptory exception raising the objections of support of the exception the City of Hammond the federal litigation and the federal court s minute entry reflecting its order granting the motion for summary judgment In opposition plaintiff argued that her federal claims 9 1 We note that in brief the City of Hammond states were dismissed that it filed the on stipulation January of dismissal in the federal court proceeding and reserved all defenses in any state court proceeding 3 2003 but her state claims entered federal on nor action court A 15 April hearing her counsel 2003 Plaintiff did serving was held dismissed until the not were the peremptory on exception Thereafter on judgment sustaining the exception claims against the City of granted the appeal for the failure reinstated the 12 22 05 Hammond September on appeal 10 15 2003 On which neither plaintiff the trial signed at 7 2003 court of prescription and dismissed April estimated City v August Plaintiff filed 2003 to pay the Wells April was prescription argument written was copy of the a the basis for her as appeared submit not stipulation of dismissal 7 a motion for a plaintiff s appeal which 2004 the trial court dismissed of costs of Hammond appeal This court however 2004 2273 La App 1st Cir unpublished opinion PRESCRIPTION Under La one is year from the on the party petition a tort action is raising the objection of prescription the plaintiffs claims the burden shifts to the the prescriptive period Lima v plaintiff 764 So 2d 1041 prescription years on That a prescriptive period her state court after the incident state provision the facts prescribed a on of suspension 99 0459 lawsuit was lawsuit was complained 16 6 1367 d states that in for the a 00 the or interruption 1992 App 1st Cir of Doyle 3 31 00 765 So 2d 338 prescribed having been filed of interrupted during S La supporting the face of the Schmidt 595 So 2d 624 628 La plaintiff s lawsuit and cites 28 U S C timely are 1044 writ denied 2000 1265 La On its face two to to prove to prove Mitsubishi Motor Sales of America Inc nearly subject day the injury or the damage is sustained Ordinarily the burden If however objection v C C art 3492 Plaintiff contends that the pendency of the federal proposition that instant lawsuit is federal lawsuit in which supplemental jurisdiction is exercised the period of limitations shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless 4 State law provides for a longer tolling period City of Hammond Plaintiff insists that her not was January 15 the date but remained pending dismissal was filed in federal pursuant to 28 U lawsuit was filed until dismissed in the S C on 2003 to file her 12 2003 within this 30 d 30 s day period because we 3462 was a court of proper the 1367 d S venue or No venue the federal claim Moreover there is in the federal lawsuit plaintiff s court state claims that action The competent interrupted of interruption time that has run state lawsuit dismissed 1983 Burns 513 v to the one City Thus v even continues venue art 3466 when prescription Therefore the out of the venue one from the date if the 2002 179 La January 9 5 as same controversy claims were jurisdiction and over state proper in the federal was long as on of action suit in a the suit is prescription year to is run anew App 5th Cir 2003 summary La the from the to file which the federal action 1140 a pending interrupted prescriptive period 1138 a supplemental jurisdiction commences Cazayoux 430 So 2d of Kenner longer tolling prescriptive period for the state year under timely that the federal court prescription resulting from the filing run anew Garrity disputes arose both a S action is commenced in an City of Hammond is not counted and began See the Under La C C day of the interruption one provide indication that any no Because and in the proper court La C C art 3463 last against and because this Louisiana Civil Code article that the federal court had claims asserted in the lawsuit that reserved 512 US C state over as competent jurisdiction and from that date conclude that the lawsuit is provides that prescription is interrupted when court of stipulation of under 28 U S C timely articles 3462 and 3463 of the Louisiana Civil Code which period than the 30 day period of28 days judgment day period it is timely We need not decide whether this lawsuit is 1367 which the on law action state against the 9 2003 summary She claims that she had 30 court 1367 d S May April law claim state a was App 1st Cir 7 30 02 824 So 2d judgment dismissing plaintiff s claims against the City of Hammond served one year to trigger the running of the prescriptive period rather than the later stipulation would have had until Hammond January This lawsuit filed is therefore timely Accordingly 9 2004 to file the state action on May 12 2003 The trial court erred in we the reverse the trial court one year of period granting the exception of prescription judgment of the trial for further proceedings plaintiff against the City well within that peremptory exception raising the objection of prescription to of dismissal court The sustaining the case is remanded 2 CONCLUSION For the foregoing reasons the judgment sustaining the City of Hammond peremptory exception raising the objection of prescription is reversed This remanded amount of to the trial court to for 188 50 are further assessed to the proceedings City Costs of this case appeal in s is the of Hammond REVERSED AND REMANDED 2 The City of Hammond s exception raising the objection of resjudicata was not ruled on Since the exception is not properly before this court we cannot consider the by However on remand the exception should be considered exception by the trial court the trial court 6 HELEN WELLS LEGAL TUTOR OF S A A1KA S W NO 2007CA0469 STATE OF LOUISIANA VERSUS COURT OF APPEAL THE CITY OF HAMMOND AND DANIEL BEAN BRYANT FIRST CIRCUIT CARTER C l concuning I respectfully that the concur in the result reached petition is prescribed on its face by Thus the as the party peremptory exception raising the objection of prescription defendant s burden of defendant did reverse not do and remand proving that the so Therefore I suit is prescribed respectfully I majority concur disagree urging the it was the I submit that the in the decision to
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