Adrain A. Illes, Individually VS State of Louisiana, through the Division of Administration, Roman Catholic Church of the Diocese of Baton Rouge and Catholic Mutual Group, a/k/a Catholic Mutual Relief Society of America

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUff NO. 2014 CA 0689 ADRIAN A. ILLES, INDIVIDUALLY VERSUS STATE OF LOUISIANA, THROUGH THE DIVISION OF ADMINISTRATION, ROMAN CATHOLIC CHURCH OF THE DIOCESE OF BATON ROUGE AND CATHOLIC MUTUAL GROUP, NK/A CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA Judgment rendered December 23, 2014. ****** Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. C620618 Honorable Kay Bates, Judge ****** CHARLES V. GIORDANO ANTHONY J. MILAZZO, JR. METAIRIE, LA AND CHRISTOPHER LEE WHITTINGTON BATON ROUGE, LA AlTORNEYS FOR PlAINTIFF-APPELLANT ADRIAN ILLES DANIEL R. ATKINSON, JR. JOHN W. PERRY, III BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS-APPELLEES ROMAN CATHOLIC CHURCH OF THE DIOCESE OF BATON ROUGE AND CATHOLIC MUTUAL GROUP A/K/A CATHOLIC MUTUAL RELIEF SOOETY OF AMERICA ****** BEFORE: KUHN, PETIIGREW, AND WELCH, Jl. PElTIGREW, l. In this action alleging negligence; ,PI<?intiff. c:hallenges a trial court judgment sustaining a peremptory exception filed on behalf of defendants raising the objection of prescription and dismissing, with prejudice, plaintiffs claims. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY Plaintiff, Adrian Illes, and Katherine Sturgill divorced in 2007. They were awarded joint custody of their minor son, A. I., with Katherine designated.as domiciliary parent. On November 4, 2011, A. I., who was. nl~e ye(lr,s old. at the time, was injured while on a ' l school field trip to the Louisiana State Capital in East B~ton Rouge Parish. On January 4, 2012, Katherine filed suit against defendants, ' ' ~he Roman Catholic Church of the Diocese ; of Baton Rouge and Catholic Mutual Groljp, a/k/a Catholic .Mutual Relief Society of America ("Diocese"), and the State of Louisiana,. through the Division of Administration ("State"), on behalf of A.I. for his damages. consortium claim on her own behalf. She amended the suit to add a loss of However, Adrian did not file suit until April 12, 2013, against the same defendants, seeking his own claim for loss of consortium damages. In response to Adrian's petition, the Diocese filed a peremptory exception raising the objection of prescription. 1 The Diocese argued that a claim for loss of consortium damages pursuant to La. Civ, Code arts. 2315 and 2315.2 was delictual in nature and subject to a one year liberative prescriptive period pursuant to La. Civ. Code art. 3492. 2 ' ' The Diocese argued that prescription was evident on the face of Adrian's petition and . ' that Adrian could not meet his burderi of establishing that his claim was filed timely. Noting that Katherine's petition was a ·pleading filed in a separate suit, the Diocese 1 According to the record, the State filed a similar exception raising the objection of prescription to Adrian's petition. In a judgment signed August 30, 2013, the trial court sustained the State's exception and dismissed Adrian's claims against the State with prejudice. 2 Louisiana Civil Code article 3492 provides as follows with regard to delictual actions: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained." 2 ~- - ' .. ·~ -------------- ' maintained that Katherine's timely filed petition was irrelevant to the issues before the court and could not interrupt the running of prescription for the claims Adrian asserted in his petition. The matter proceeded to hearing ' on March 3 2014. I After hearing arguments and reviewing the evidence submittedf the trial court sustained the Diocese's exception and dismissed Adrian's claim with prejudice. In oral reasons for judgment, the trial court made the following findings: After careful review, the 'court hereby finds that the claim for loss of consortium is a claim for damag~sr qnd as such is a delictual action subject to a liberative one-year prescriptive period. Additionally, a claim for loss of consortium is a separate cau~e of action from that of the primary victim. Furthermore, the claim for loss of consortium is not an assertion of the victim's cause of action; therefore, it would have to stand consortium does not relate back to to reason that the claim for the the original claim of the victim. loss of On the face of the instant petition, the plaintiffs claim has prescribed. Furthermore, the claims asserted by [A.I.'s] mother, Katherine Sturgill, are still pending in a .wholly separate suit and does not reference Adrian Illes. The State could. not have known via the petition and amended petitions filed by _M$, Sturgill that the plaintiff in this matter possibly had a claim for damages arising out of the incident which occurred on November 4th, 2011. The claim for loss of consortium is separate from that of the victim, ·and the court finds it does not relate back to this suit filed on behalf of [AJ,], ... A judgment in accordance with these findings was signed on March 11, 2014. It is from this judgment that Adrian has appealed, arguing that the trial court erred in sustaining the Diocese's exception raising the objection of prescription. STANDARD OF REVIEW A trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong stc;~ndard of rexi~w;, Marin v. Exxon Mobil Corp., 2009. .. , ;. ·, ' 2368, p. 11 (La. 10/19/10), 48 So.3d 234, .244_-.245.; .sto,bart v. State tllrough Dept. ' - . . ' of Transp. and Development, 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobartl' 617 So.2d at 882-883. 3 . l. •I'' PRESCRIPTION At the trial of a peremptory exception, evidence may be introduced to support or controvert the defense of prescription{ if _its grounds do not appear from the petition. ': . La. Code Civ. P. art. 931. ·: ' ' Gener.aiiyf. ir'l th.e absence of evidence, the objection of ' _, ' prescription must be decided based upon the facts alleged in the petition, which must be accepted as true. Kirby v. Field, 2004-1898, p. 6 (La. App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 (Lq. 3/24/06), 925 So.2d 1230. The plea of prescription must be specifically pleaded and may not be supplied by the court. La. Code Civ. Proc. art. 927(E3), Ordinarily, the party pleading the exception of prescription bears the burden of proving the. claim has prescribed. Chevron USA, Inc., 2009-2632, p~ ' Hogg v. 7 (Lq. · ?/6r10); 45 So.3d 991, 998; Quality Gas . . ._, '· ; Products, Inc. v. Bank One Corp., :2003.,1859; ·p ..4 (Lc;~. App. 1 Cir. 6/25/04), 885 So.2d 1179, 1181. However, if prescriptio9 is evident onthe face of the pleadings, the burden shifts to the plaintiff to show the ac:tion has_ not prescribed. Carter v. Haygood, 2004-0646, p. 9 (La. 1/19/05), 892 SQ.2d 1261, 1267. DISCUSSION ) '. On appeal, Adrian cites Louviere v. Shell Oil Co., 440 So.2d 93 (La. 1983), as support for his position that his claims and Katherine's claims are based on the same cause of action for the negligence of the Diocese, and, thus, the timely filed petition by Katherine interrupted the prescriptive period for his claims. Katherine's suit against the Diocese put them He further asserts that 6n notice that "a loss of consortium claim was being made by one parent and ·sure!y:·a·subsequent claim for loss of consortium ~Adri~:lri argues finally that his and should be expected from the· ·ciher ·'parent:j,-.: Katherine's claims for loss of consortium' are't~'e ~arrie, . He maintains that the "close connexity [sic] in relationship between [Katherine] and [him] and the identity of interest as a result of their claims for loss .of consortium C!i'e sufficient to satisfy the test set forth by the Louisiana Supreme Court to interrupt the prescriptive period,'' We find no merit to Adrian's arguments on appeal. 4.. ' t• .• In Louviere, the Louisiana Supreme .Court held that when several parties share a single cause of action, suit by one interrupts prescription as to all. Louviere, 440 So.2d at 96. However, the Louviere court did not sto'p there, adding: [W]hen a suit by a second party states,"a different cause of action than the suit by the first party, although each c,au~e of ac~ion ts based in part on common facts, the first suit does not Hitetrupt prescription as to the subsequent cause of action ... See Gjp(jry ~~~; Theriot, 377 Sq.2d 319 (La. 1979), in which this court held that betause the wrongful death and survival actions are based on two ~epa rate ~m::l distinct causes of action, a timely survival action does not inte"rrupt ·prescription as to the wrongful death claim. lei. ' ·' ' . ., : .~ This court has previously held that .a. ~'claim for loss of consortium is, beyond question, a cause of action separate from any da!m Qf the primary ;,l.!' · •. ; • ·. ". Discovery Homes, Inc., .2009-15651 p.}.,(~,~l~.APP'. '.. : ; ' ~.. . ~ victim:~ Allemand v. • l. Cir.. 5/28/10), 38 So3d 1183, ; 1187. Adrian's claim for loss of consortium was a separate and different cause of action than that filed by Katherine. Accordingly, Katherine's suit could not serve to interrupt prescription as to Adrian's cause of actiono After a thorough review of the evidence and applicable law, we find the record demonstrates that the decision of the trial court was not manifestly erroneous. We are satisfied that a reasonable factual basis exists for the tnal court's finding that Adrian's suit was prescribed. The trial court did not err in granting the Diocese's exception raising the objection of prescription and dismissing Adrian's claim with prejudice. DECRE~ (:ourt~s March .11, 2014 For the foregoing reasons, the trial ' , ' , ' •· ·.' '. j ' I ', judgment is affirmed. ' All costs associated with this appeai. ar:e assessed ,against plaintiff-appellant, Adrian ' Illes. ' • ' ' : • • ~ • '~ .·... '. AFFIRMED. 5 .. !: 1• '• ·~ .. ' . ... ' • '

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