Wendell K. Johnson VS City of Baton Rouge Through Baton Rouge Police Department, Cpl. Kenneth J. Camallo, Jr., Cpl. James R. Cutrer, Sgt. D. Brim, Lt. R. Cowart, Joseph LeDuff in His Official Capacity as Chief of Police, East Baton Rouge Sheriff's Office and Sgt. J. Sandridge
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1112 WENDELL K JOHNSON VERSUS CITY OF BATON ROUGE THROUGH BATON ROUGE POLICE DEPARTMENT CPL KENNETH J CAMALLO JR CPL JAMES R CUTRER SGT D BRIM LT R COWART JOSEPH LEDUFF IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE EAST BATON ROUGE SHERIFF OFFICE SGT 1 SANDRIDGE December 23 2009 Judgment Rendered Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 570 773 Honorable Terry L Bonnie Baton Rouge Timothy LA E Kelley Judge Counsel for Plaintiff Appellant Wendell K Johnson Arlene C Edwards Counsel for Asst Defendants City Parish Attorney Baton Rouge LA City Appellees of Baton Rouge Rouge through Police Dept Chief Jeff Baton Leduff Cpl Camallo Jr R Cutrer Kenneth J Cpl Sgt James D Brim and Lt R Cowart Tara L Johnston Counsel for Baton Defendants Rouge LA EBRP Sheriffs Office and BEFORE CARTER C J Sgt J Sandridge GUIDRY AND PETTIGREW n GUIDRY J Plaintiff Wendell K Johnson the exception raising against the Baton For the reasons appeals judgment sustaining a a peremptory objection of prescription and dismissing his suit for damages Rouge Police Department and various law enforcement officers that follow we affirm FACTS AND PROCEDURAL HISTORY On misdemeanor citation Parish Prison another on an plaintiff with the man and the was outstanding 2006 in the warrant issued issued East Baton plaintiff was released Almost petition was for not a Rouge Rouge Sheriffs Orange County Sheriffs Office in Florida had verified Florida a being by the State of Florida against Rouge Police Department the plaintiff plaintiff filed of Several hours later after law enforcement satisfaction that warrant course arrested and booked into East Baton same name officers with the Baton Office 10 about November or the same person identified in the a year later damages against the City on to their outstanding November 7 2007 of Baton Rouge the Baton Rouge Police Department and various law enforcement officers under docket number 560 922 in the Nineteenth Judicial District Court A request for service petition but the request did A document was on providing filed with the trial September on not all the named defendants provide addresses for addresses court over eight months later 22 2008 the trial court plus plaintiff the East Baton filed another signed Sandridge an prejudice any of the named defendants on order Rouge Sheriffs Office peremptorily excepted 2 on June 19 2008 Thereafter dismissing the petition Prior petition against named defendants except the East Baton James included with the whereby the named defendants could be served under docket number 560 922 without suit however was to filed the dismissal of the first all of the September 17 same 2008 defendants All of the Rouge Parish Sherriffs Office and Sgt to the second suit on the basis of prescription I Following a hearing and dismissed the exception on plaintiffs the trial exception the second suit with sustained the court prejudice on March 18 2009 It is from this March 18 the trial court erred in the earlier suit finding and that the second on judgment voluntarily did petition the peremptory that La R S to ruling pursuant jointly purpose of ruling 2009 plaintiff appeals asserting that when the 13 5107 D parties moved for dismissal of that suit relate back not to the first petition to and in for the exception urging prescription DISCUSSION Plaintiff alleges that the trial court committed provisions of La R S not interrupt the running this allegation because contrary I to determine that the of prescription to that the first suit acknowledged 2 13 51 07 D as to what the was legal error plaintiff states We find the trial no court the request of the at applied the filing of the first suit did the second suit dismissed when it merit in expressly plaintiff As exception raising the objections of lack of procedural capacity no cause of action and prescription was filed by the East Baton Rouge Parish Sheriffs Office and Sgt Sandridge on March 3 2009 the day after the trial court heard arguments on the objection of prescription urged in the peremptory exception filed by the other defendants Consequently the objections raised in the exception filed by the East Baton Rouge Sheriffs Office and Sgt Sandridge are not the subject ofthe March 18 2009 judgment 2 An Louisiana Revised Statutes 13 51 07 D l In all suits in which the state officer provides a state agency or thereof is named political subdivision or any service of citation shall be employee party requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state a state agency or political subdivision or any officer or employee thereof as a party This requirement may be expressly waived by the defendant in such action by any or as a written waiver 2 If service is not action requested by shall be dismissed the without party filing prejudice the action within that provided or political subdivision or any officer or contradictory motion after in Code of Civil Procedure Article 1672 C employee period as the as to the state state agency thereof who has not been served 3 When the state employee a state agency thereof is dismissed as a or a political subdivision party pursuant shall not interrupt or suspend the against as to the state state agency or political subdivision or running prescription any officer or employee thereof however the effect of interruption of prescription as to other persons shall continue Emphasis added the action even as other defendants any officer or to this Section the filing of or of 3 the trial court own explained It independent action t amendment It wasn an to find that the wasn t a prescription as to plaintiffs interrupted the running of prescription p is rescription in obligor rely a interrupted court the not Thus to reserve to serve on provisions interrupt of La R S the running of should have found that the first action court the second action based to as Louisiana Civil Code article 3462 3462 its second suit Plaintiff also argues that the trial art request of the first suit did filing on that you filed and you dismissed your first the record shows that the trial court did not 13 51 07 D the second suit stands plaintiff counsel for the s an because it action to when of competent the obligee jurisdiction and in states on La pertinent part action commences C C that against the However La C C art venue 3463 further provides An in a interruption competent court of prescription resulting and in the proper from the venue filing continues as of a suit long as the suit is occurred pending Interruption is considered never to have if the plaintiff abandons voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter fails or to prosecute the suit at the trial Emphasis added When a law is clear and unambiguous absurd consequences the law shall be plainly art admits that he 3463 voluntarily is considered applied as that any never written interruption to have filing suit as was untimely of the second suit of the second suit tortious conduct sued upon occurred 3 was 3 filed 4 to La C C prescription resulting as a result of was deemed plaintiff never to before the dismissal of the first more than a year after the Accordingly the trial See La C C art 3492 lead Plaintiff Consequently occurred even not La C C art 9 having voluntarily dismissed the first suit Since interruption have occurred the does application dismissed the first suit unambiguously provides from the first suit and its court did alleged not err in sustaining the peremptory exception second suit with plaintiffs on the basis of prescription or in dismissing prejudice CONCLUSION For the reasons court and dismissing costs affirm the March 18 we sustaining the peremptory exception raising trial All stated herein of this the suit filed appeal are by plaintiff cast to the on September plaintiff AFFIRMED 5 the 2009 objection 17 judgment of of prescription 2008 with Wendell K Johnson prejudice
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