Sam Haynes VS Andrew Hunter and Colby Lavelle
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0657 SAM HAYNES VERSUS ANDREW HUNTER AND COLBY LAYELLE Judgment On Appeal from the Rendered Twenty December 21 2007 First Judicial District Court In and For the Parish of Livingston State of Louisiana Docket No 106974 Honorable Ernest G Drake Jr D Blayne Honeycutt Denham Springs Louisiana Elizabeth B Powell Baton Rouge Louisiana Judge Presiding Counsel for Plaintiff Appellant Sam Haynes Counsel for Defendant Appellee State Farm Fire and Casualty Company Keith L Richardson Baton Rouge Louisiana Wayne Stewart Livingston Louisiana A BEFORE Counsel for Defendant Colby Appellee Lavelle Counsel for Defendant Appellee Andrew Hunter GAIDRY McDONALD AND McCLENDON JJ McCLENDON J This is an appeal from trial a judgment sustaining court For the exception raising the objection of prescription we peremptory a reasons that follow affirm FACTS AND PROCEDURAL HISTORY On and his property on to as the February filed to the would on physical December 18 structure as well Casualty subsequently named was Lavelle filed lawsuit 27 2006 and the matter parties and the the doctrine of on maintain the was contra non was exception of court erred in on as a for peremptory exception was the set two judgment stating valentem for was hearing on memorandums and Lavelle Haynes On March that misplaced Haynes s and that it Judgment sustaining the peremptory rendered on 12 May denial of his motion for reconsiderationnew trial that the trial a submitted reasons exception exception of prescription The depositions 2006 the trial court issued reliance fire State Farm Fire and insurer s objection of prescription the by Lavelle the to a Hunter 1 In response raising defendants started said property on State Farm defendant Haynes filed suit against Andrew Sam resulting in damage trees numerous Company 15 17 2005 Colby Lavelle alleging that 2003 as February 2006 Following the Haynes appealed asserting finding that his claim had prescribed DISCUSSION A pmiy urging an the burden of proving prescribed its face on 04 2918 p 1 State Farm 5 La was insurer of Lavelle s exception raising facts to named as a objection of prescription has support the exception unless the petition is Cichirillo 1129 05 the v Avondale Industries 917 So 2d 424 defendant in its grandmother Mary 428 capacity as Inc When the face of the the homeowner E Loti with whom Lavelle resided 2 04 2894 s liability petition reveals that the plaintiff s claim is prescribed the burden shifts the plaintiff In re 788 So 2d 1173 prescription suspended was for Claim of Moses reviewed under the manifest Babineaux App State v 1 Cir 12 22 05 The or is cause strictly construed of action revealed on case February 17 its face that 2005 3492 art La person who cannot 1 19 05 jurisprudentially 892 created doctrine is based on effectually prevented will This bring his So 2d the premise from This statute 3 one was means interrupted that Carter 1268 to the be some suspended enforcing his rights non in favor of 4 927 So 2d at Haynes filed petition v Haygood non rules of non currit not run 04 0646 p valentem IS because the reasons a The prescription circumstances for bore suspended valentem Babineaux 04 2649 at p 4 927 So 2d at 1124 3 or prescription does Contra general that in like all Consequently Haynes run suit 1261 exception justice require that prescription own p is the judice fourteen months later Thus the prescription praescriptio is applicable herein 11 of fact 04 2649 December 18 2003 on Haynes contends that the doctrine of contra a hearing findings against prescription and prescription had the burden of establishing that against sub Babineaux 04 2649 at p In this matter the fire occurred on at the La 1123 is sustained LSA C C statutes maintaining the his lawsuit s and Dev Transp 927 So 2d 1121 court 6 p prescription for delictual actions commencing the day the damage prescription 1124 of Dept prescriptive period applicable in the year liberative injury reI ex 00 2643 wrong standard of review clearly error interrupted or When evidence is introduced 1177 peremptory exception of prescription the trial on a La demonstrate that Medical Review Panel 5 25 01 are to to equity and plaintiff was external to his The supreme doctrine of liberative 1646 p contra contra applies applies Renfroe valentem so State v 809 So 2d 947 non in this recognized four factual situations valentem La 2 26 02 category of rule non prescription 9 has court persons who started the fire until from the probation officer of contacted an Dept prevent the running of of Transp to as 01 the discovery ascertain the identities of the not January of 2005 when he of the defendants one and Dev argues that the fourth Haynes commonly referred because he could case to as 953 in which the received Thereafter a call Haynes attorney and filed suit in February of 2005 However the doctrine of contra valentem non only applies exceptional circumstances and in order for the fourth type of situation apply his a own plaintiffs ignorance willfulness could have lemned 9 10 809 So 2d Haynes names 2 or non or plaintiff is deemed diligence Babineaux 04 2649 at p although know what he Renfroe 01 1646 their officers from legal cause taking cognizance of was some was in trying unable to to learn the do so which or prevented the courts acting on the plaintiffs action 2 where there connected with the or was some proceedings condition which coupled with the prevented the creditor contract from or suing acting 3 where the debtor himself has done prevent the creditor from 4 knowable by the where the by the availing cause plaintiff himself of his some cause act nor though plaintiffs ignorance defendant Renfroe 01 1646 at p 9 809 So 2d at 953 4 effectually of action of action is neither known even at pp 5 927 So 2d at 1124 diligence he to applies where there to of action cannot be attributable to claims he exercised reasonable valentem 1 a reasonable of the perpetrators of the fire Contra cause neglect that is through at 953 of his in to or reasonably is not induced within one year of the fire about the fire the However the record it occurred and in fact his evening firefighters dispatched the to His scene evening that he believed that two persons Further Haynes admitted in his that other than exception mechanical the defendants at contacting Haynes made of the identity deposition a no arrested for at as of the son was one also informed well as Haynes that starting the fire the hearing on other effort office s his to to to ask him to obtain to trial get information ascertain their to identify identity hearing Haynes He He also testified that he assumed that he personally did office sheriffs office the district attorney entity by telephone letter 3 the efforts of these two individuals to detennine on perpetrators or a neighbor who apparently would hear from the proper officials when the individuals arrested brought the friend of his who worked in the the local courthouse try admitted that he relied the were investigation report and having connections had son section of the fire marshal safety copy of the clearly shows that Haynes knew or otherwise s not contact office or regarding the fire were the fire marshal s any other official or the individuals who started it We find that it inquiry Further from within we one find inquiring not was reasonable for year of the fire to nothing into the to fail to make identify the defendants in this in the record identity Haynes to of the suggest that Haynes perpetrators and was even investigation by Haynes should have revealed their identities simply failed to knowable show that the Therefore we identity of the defendants 3 matter prevented a simple Haynes has not reasonably Haynes has failed was agree with the trial court that further Haynes testified that a couple of weeks after the fire he did personally speak with the investigator assigned to this matter to ask him for a copy of the fire marshal s report but was told that he could not get a copy ofthe report because it had already had been sent to the Livingston Parish District Attorney s Office Haynes further testified that he never contacted the district attorney s office 5 to establish that the doctrine of interrupt prescription on contra his claim for non valentem applies in this case to damages CONCLUSION Based cOUli was on our not thorough review of the record clearly wrong in sustaining raising the objection of prescription of the trial court All costs of this Lavelle Accordingly appeal Haynes AFFIRMED 6 we are s conclude that the trial peremptory exception we assessed affirm the to the judgment plaintiff Sam
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