Floyd Donley, Sr. VS Hudson's Salvage, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 1315 FLOYD DONLEY SR VERSUS S HUDSON SALVAGE LLC Judgment Rendered December 22 2010 Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No 20090004174 The Honorable Bruce C Bennett Judge Presiding Floyd Donley Jr PlaintiffAppellant Amite Louisiana Pro Se Jeffery Paul Robert Baton Rouge Louisiana Counsel for DefendantsAppellees s Hudson Salvage LLC Linda Cox Elaine Hingle Alan Spallinger Lois Peltier and Jerry Holifield BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J A patron of a discount store appeals a judgment sustaining a peremptory exception of prescription and dismissing his claims against the store and certain employees for personal injury false arrest and imprisonment defamation malicious prosecution and violation of his civil rights For the following reasons we affirm the judgment in part reverse it in part and remand this matter for further proceedings FACTS AND PROCEDURAL HISTORY The plaintiff Floyd Donley Sr was an occasional customer of the Dirt Cheap Store owned and operated by the defendant Hudson Salvage s LLC Hudson in Amite City Louisiana s Over the course of several weeks prior to September 24 2008 plaintiff purportedly contacted the s store management in Hattiesburg Mississippi to report what he considered to be unsafe products conditions and practices at the Amite City store On September 24 2008 plaintiff entered the store for the acknowledged purpose of photographing the purported safety violations and unsafe conditions Employees of the store objected to plaintiff actions s and demanded that he leave While in an area near the checkout counter plaintiff encountered Elaine Hingle the store manager who complained that plaintiff pushed or struck her in the chest with his fists after the employees confronted him According to plaintiff his path of exit from the store was impeded by Ms Hingle and a security guard Alan Spallinger who were acting under directions from Linda Cox the Hudson district manager s Plaintiff then fell or collapsed purportedly due to a panic attack and heart 1 Plaintiff by his own account is a retired public and private safety inspector and instructor who is well qualified to document and seek correction of the many s afety hazards that existed and continue to exist at the Dirt Cheap Store His professed motive in contacting the store management and in entering the store on the date of the s incident at issue was to champion the p right to be in a safe and sanitary s ublic shopping environment 2 trauma induced by his being confined and falsely imprisoned by Ms Hingle and Mr Spallinger Store employees telephoned the Amite City Police Department and an ambulance was also dispatched to the store based upon the reported injuries to plaintiff and Ms Hingle Plaintiff was eventually charged with battery of Ms Hingle According to plaintiff he was tried and convicted on December 3 2008 in Amite City Court on the battery charge but the conviction was reversed and the charge dismissed by the 21st Judicial District Court for the Parish of Tangipahoa on September 24 2009 On December 1 2009 plaintiff filed a pro se petition against s Hudson Ms Cox Ms Hingle and Mr Spallinger as well as Lois Peltier and Jerry Hollifield two Hudson managerial employees in its Hattiesburg s Mississippi headquarters office and an unidentified pseudonymous employee who allegedly videotaped the incident He alleged that after he contacted the headquarters office in Hattiesburg by telephone and e mail regarding the purported safety violations the Hattiesburg managerial employees dispatched Mr Spallinger to instigate a situation with him knowing that he would visit the store on September 24 2008 Plaintiff further alleged that as the result of his illegal confinement detention and false imprisonment on that date by the Amite store employees acting under the direction of the Hattiesburg managerial employees his civil rights were violated and he suffered physical and mental injuries including a panic attack heart trauma also described as a possible heart attack 2 According to plaintiffs brief he was acquitted in Amite City Court of battery upon Mr Spallinger There is some suggestion in plaintiff petition that he may also have been s charged with disturbing the peace but the exact nature of any such charge and its disposition cannot be ascertained from the record 3 aggravations of previous afflictions stress and consequential reduction of his life expectancy by six years Plaintiff also alleged in his petition among other things that Ms Cox refused to intervene to stop the police brutality of the Amite City Police Department officers after their arrival at the store to investigate the disturbance that by its actions and inactions through its employees or s Hudson contributed to the institution of the criminal proceeding for battery against him in Amite City Court that Ms Hingle falsely accused him of battery leading to his prosecution that Ms Cox Ms Hingle and Mr Spallinger lied under oath at the trial of December 3 2008 resulting in his conviction in Amite City Court and that Ms Cox Ms Hingle and Mr Spallinger wrote false narrative reports on December 8 2008 five days after the trial with the intent to defame p laintiff The defendants filed peremptory exceptions of prescription contending that on the face of plaintiffs petition his various causes of action were prescribed as of the date of the petition filing s exceptions were heard on February 19 2010 Defendants Following argument and s plaintiff proffer of multiple documents to which the defendants objected the trial court sustained the exceptions The trial court judgment dismissing s plaintiffs causes of action with prejudice was signed the same day Plaintiff now appeals 3 According to his petition plaintiff was 80 years old at the time of the incident at issue 4 The trial court designated its judgment as a final judgment for purposes of appeal stating that it found no just reasons for delay pursuant to La C art 1915 Its P B certification however was unnecessary as the judgment dismissed all of plaintiffs claims and causes of action and was not a partial final judgment but a full and final judgment appealable without the need for certification See La C arts 1841 1911 P and 2083 A I DISCUSSION Delictual actions are generally subject to a liberative prescription of one year running from the day injury or damage is sustained La C art 3492 A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same Campo v Correa 01 2707 p 12 La 6 828 So 502 510 Emphasis supplied 02 21 2d At the hearing of a peremptory exception except one raising the objection of no cause of action evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition La C art 931 The defendants presented no P evidence at the hearing on their exceptions but instead argued that s plaintiff claims were prescribed on the face of his petition which was filed on December 1 2009 well over a year after the incident of September 24 2008 Plaintiff sought to introduce into evidence a file folder containing numerous documents but the defendants objected and the trial court allowed a proffer of the documents in globo Based upon our review of the proffered documents we agree with the defendants that all of the documents are inadmissible on the grounds of hearsay lack of proper authentication or irrelevance In light of the foregoing we will determine the merits of plaintiff s appeal based upon the allegations of his petition Generally in the absence of evidence the objection of prescription must be decided upon the facts alleged in the petition and those alleged facts are accepted as true Thomas v State Employees Group Benefits Program 05 0392 p 7 La App 1 st Cir 06 24 3 934 So 753 758 The latter principle applies only to properly 2d pleaded material allegations of fact as opposed to allegations deficient in k material detail conclusory factual allegations or allegations of law Kirby v Field 041898 p 6 La App 1st Cir 9 923 So 131 135 writ 05 23 2d denied 05 2467 La 3 925 So 1230 06 24 2d The Malicious Prosecution Claim An action for malicious prosecution of a criminal proceeding requires the following elements 1 the commencement or continuance of an original criminal proceeding 2 its legal causation by the present defendant against the plaintiff who was the defendant in the criminal proceeding 3 the bona fide termination of the criminal proceeding in favor of the present plaintiff 4 the absence of probable cause for the criminal proceeding 5 malice and 6 damage to the plaintiff conforming to legal standards Miller v E 2d Baton Rouge Parish Sheriff Dep 511 So 446 452 La 1987 s t Prescription on a cause of action for malicious prosecution does not begin to run until the underlying prosecution is dismissed Murray v Town of Mansura 06355 p 7 La App 3rd Cir 9 940 So 832 838 writ 06 27 2d denied 06 2949 La 2 949 So 419 cert denied 552 U 915 07 16 2d S 128 S 270 1 L 197 2007 Ct 69 Ed 2d Given the allegations of s plaintiff petition particularly his affirmative allegation that t 21st Judicial District Court in Amite and he the District Attorney dismissed the unfounded and unmerited charge proffered by Ms Hingle on Sept 24 2009 prescription on his ember cause of action for malicious prosecution did not begin to run until the latter date His petition filed on December 1 2009 was therefore timely as to that cause of action and the trial court erred in sustaining the defendants exceptions in that regard and dismissing that cause of action n The Defamation Claim The allegations of plaintiff petition sufficiently state a cause of s action for defamation against the defendants Ms Cox Ms Hingle and Mr Spallinger as well as their employer Hudson based upon the alleged false s testimony given at the trial in Amite City Court on December 3 2008 and the alleged false narrative reports of December 8 2008 As plaintiffs petition was filed within a year of the alleged defamatory statements plaintiffs cause of action for defamation based upon those statements was not prescribed and the trial court also erred in dismissing that cause of action Suspension ofPrescription on Other Claims A claim for false arrest and imprisonment is legally distinct and separate from a claim for malicious prosecution Murray 06355 at pp 78 940 So at 83839 Unlike a malicious prosecution claim a claim for false 2d arrest and imprisonment arises the day the false arrest and imprisonment occurs and is subject to the oneyear prescriptive period generally applicable to delictual claims Id 06355 at p 7 940 So at 838 2d On the face of his petition plaintiffs delictual causes of action for false arrest and imprisonment physical and mental injury and violation of his civil rights arising from the incident of September 24 2008 are prescribed When a cause of action is prescribed on its face the burden is upon the plaintiff to show that the running of prescription was suspended or interrupted in some manner Jonise v Bologna Bros 01 3230 p 6 La 02 21 6 820 So 460 464 Thus the burden of proof shifted to plaintiff 2d to establish that his causes of action for false arrest and imprisonment physical and mental injury and violation of his civil rights were not prescribed Thomas 05 0392 at pp 67 934 So at 758 2d 7 In his appellate brief plaintiff contends that Hudson and its s employees somehow fraudulently concealed the fact that their actions rather than those of the investigating police officers caused his alleged injuries and damages He also seems to claim in his petition and appellate brief that he suffered a lapse in memory of those events of September 24 2008 that occurred prior to his arrival at the emergency room of the hospital following the incident In his petition however he alleges that his memory of many of the incidents returned upon receiving a video and documents signed by Ms Cox and Ms Hingle in August 2009 He contends that these circumstances justify a tolling of prescription thereby implicitly invoking the doctrine of contra non valentem Contra non valentem non currit praescriptio is Louisiana a jurisprudential doctrine under which prescription may be suspended Carter v Haygood 040646 p 11 La 1 892 So 1261 1268 05 19 2d the doctrine circumstances in exceptional See Renfroe v State ex rel Dep of Transp t Dev 01 is of equitable origin it Because only applies 1646 p 9 La 2 809 So 947 953 There are four recognized 02 26 2d categories of this doctrine 1 where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff action 2 where there was some condition coupled with the s contract or connected with the proceedings which prevented the creditor from suing or acting 3 where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of 5 In his appellate brief plaintiff states that he filed suit against the Amite City Police Department offficers on September 22 2009 two days shy of prescription He claims that he did not know until after that suit was filed that his injuries and damages may have been caused by the defendants actions Elsewhere in his brief however plaintiff concedes that he first suspected that he might have a claim against Hudson sic during the testimony of Elaine Hingle and Mr Spallinger at the c c trial on ity ourt 08 03 12 8 action and 4 where the cause of action is not known or reasonably knowable by the plaintiff even though this ignorance is not induced by the defendant Carter 040646 at pp 11 1 892 So at 1268 2 2d Given the facts of the present action as recited in plaintiffs petition the first and second categories of the contra non valentem doctrine are not relevant for our purposes The third listed category encompasses situations where an innocent plaintiff has been lulled into a course of inaction in the enforcement of his right by some concealment or fraudulent conduct on the part of the defendant Carter 040646 at p 12 892 So at 1269 2d The fourth category commonly known as the discovery rule is an equitable pronouncement that statutes of limitation do not begin to run against a person whose cause of action is not reasonably known or discoverable by him even though his ignorance is not induced by the defendant Teague v St Paul Fire Marine Ins Co 07 pp 11 12 La 2 974 So 1384 08 l 2d 1266 1274 In his brief plaintiff expressly argues the applicability of fraudulent concealment and the discovery rule in his favor As the party asserting the benefit of contra non valentem plaintiff bore the burden of proof of its requisite elements and applicability See Fitness LLC v Hibernia Corp 07 Peak Performance Physical Therapy 2206 p 8 La App 1st Cir 6 992 So 527 531 writ denied 08 08 2d 1478 La 10 992 So 1018 08 3 2d In his petition and appellate brief plaintiff claims that Hudson and its employees somehow deliberately s concealed the events of September 24 2008 from him and intentionally created impediments to his ability to discover their alleged fault in causing his injuries However no competent evidence supporting his contentions was presented at the hearing nor does his petition or any document within the proffer provide material factual support of those contentions W Plaintiff did not testify at the hearing but simply presented argument In short plaintiff failed to prove that he was prevented from reasonably knowing or discovering or that he could not have known or discovered the facts supporting his claims against Hudson and the other named defendants s prior to September 24 2009 and that his ignorance in that regard was attributable to the defendants actions Similarly there are no material allegations in the petition and no competent evidence in the record that plaintiff was unable to reasonably know or learn of his alleged causes of action against the defendants based upon legal incompetency or a medical condition that prevented discovery of the relevant facts within a year of the incident Louisiana Code of Civil Procedure Article 934 provides as follows When the grounds of the objection pleaded by the 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 If the grounds of the objection raised through the exception cannot be so removed or if plaintiff fails to comply with the order to amend the action claim demand issue or theory shall be dismissed In the context of an objection of prescription the jurisprudence has interpreted the foregoing provision to mean that where a plaintiff cause of s action is prescribed on its face and the plaintiff has the opportunity but fails to offer any evidence at the hearing of a peremptory exception that his claim was filed timely he has failed to adequately establish that amendment of his petition might remove the grounds of the objection Thomas 05 0392 at p 9 934 So at 759 See also Whitnell v Menville 540 So 304 309 La 2d 2d 1989 Plaintiff failed to offer any competent legal evidence at the hearing Thus he was not entitled to amend his petition after the exceptions were 10 sustained and those causes of action other than malicious prosecution and defamation were properly dismissed DECREE The judgment of the trial court sustaining the peremptory exceptions of the defendants Hudson Salvage LLC Linda Cox Elaine Hingle Alan s Spallinger Lois Peltier and Jerry Holifield and dismissing the claims of the plaintiff appellant Floyd Donley Sr is reversed in part as to the plaintiff s appellant claims for malicious prosecution and defamation and affirmed in all other respects This matter is remanded to the trial court for further proceedings The costs of this appeal are assessed in equal proportions of onehalf to the plaintiff appellant and onehalf to the defendants appellees AFFIRMED REMANDED IN PART REVERSED IN PART AND
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