Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,846-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ANDREW JOSEPH CARIERE Plaintiff-Appellant
versus
THE KROGER STORE Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 579,031
Honorable Ramon Lafitte, Judge
ANDREW JOSEPH CARIERE Plaintiff-Appellant, In Proper Person
THOMAS, SOILEAU, JACKSON, Counsel for Defendants- BAKER & COLE, L.L.P. Appellees, The Kroger By: Steven E. Soileau Store and Michael Schmidt
Before WILLIAMS, PITMAN, and GARRETT, JJ. PITMAN, J.
Plaintiff-Appellant Andrew Joseph Cariere appeals the trial court’s
granting of exceptions filed by Defendant-Appellee The Kroger Company
(“Kroger”). For the following reasons, we affirm.
FACTS
This case was previously before this court in Cariere v. The Kroger
Store, 50,637 (La. App. 2 Cir. 11/16/16), 208 So. 3d 987. This court
provided the following facts of the case and procedural history:
Andrew Cariere entered a Kroger grocery store in Shreveport, Louisiana, on August 22, 2013, and as he exited the store, he was detained by a store employee for allegedly shoplifting. . . . He was turned over to the police and arrested. Cariere was ultimately charged with theft-shoplifting in Shreveport City Court. . . . The record reflects that the charges were ultimately dismissed.
As a result of this incident, Cariere filed suit against Kroger making claims of assault, battery, torture, defamation, false arrest, and false imprisonment. . . . Subsequently, Kroger filed a motion for summary judgment on the grounds that Cariere could not prove the elements of battery, assault, torture, defamation, false arrest, and false imprisonment. . . . Cariere opposed Kroger’s motion for summary judgment alleging several disputed material facts, which Kroger maintains contradicted his deposition testimony. A hearing was held on the motion, and Kroger’s summary judgment was granted in part, denied in part. The trial court dismissed Cariere’s claims of assault, torture, defamation, false arrest, and false imprisonment, but ruled that an issue of material fact existed regarding Cariere’s battery claim.
This court affirmed the judgment of the trial court, finding that there
were questions of material fact as to whether Kroger’s employee’s actions
constituted reasonable force. This court found there was no evidence that
would indicate Kroger assaulted, tortured, falsely arrested, falsely
imprisoned or defamed Cariere and that he failed to carry his burden to
prevent the granting of summary judgment. On February 22, 2017, a trial was held on Cariere’s battery claim.
The trial court granted Kroger’s motion for involuntary dismissal. On
April 6, 2017, the trial court signed a judgment dismissing with prejudice
Cariere’s claims against Kroger. It stated that Cariere failed to prove by a
preponderance of the evidence that unreasonable force was used against him
and that he failed to prove damages.
On April 12, 2017, Cariere filed a motion for new trial. He
complained of intentional and conspiratorial actions by employees of the
First Judicial District Court, the Shreveport Police Department, and by
Kroger and its attorneys that resulted in the loss of his due process rights. A
hearing on this motion was held on June 19, 2017, and the trial court denied
his motion in open court.1 On July 10, 2017, the trial court filed a judgment
denying the motion for new trial.
On July 16, 2018, Cariere filed a petition to annul the February 22,
2017 judgment for fraud and ill practices. He alleged willful acts that
caused him injury and breaches of good faith and fiduciary duties by officers
of the court, public officials and employees of the City of Shreveport, the
Shreveport Police Department, Kroger’s employees and Kroger’s attorneys.
He stated that he raised these allegations in a separate lawsuit, i.e., Docket
No. 607,091, and requested that the trial court allow the prosecution of the
causes of action in his new lawsuit.
1 Also taken up at this hearing was a motion to revoke Cariere’s pauper status filed by Kroger’s counsel, who alleged that Cariere’s frivolous filings and requests for 30 subpoenas were an abuse of the judicial system. Noting that Cariere had filed 14 lawsuits, the trial court stated, “I am not going to revoke your status, but if you file anything close to what has happened here today, I will revoke it and order that you pay everything from day one including all those subpoenas that were just issued.” 2 On July 23, 2018, Kroger filed exceptions of no right of action, no
cause of action and prescription. It stated that Cariere had no right or cause
of action because he filed his petition to annul under the same docket
number as the judgment he complained of, i.e., Docket No. 579,031, rather
than in a new and separate proceeding. Regarding the exception of
prescription, Kroger stated that more than one year had passed since Cariere
knew or should have known of the alleged fraud or ill practices.
On December 26, 2018, Cariere filed an opposition to Kroger’s
exceptions. He contended that his petition was not untimely because the
judgment denying his motion for new trial was not mailed until July 13,
2017 at the earliest, and he filed his petition to annul on July 16, 2018. He
stated that the deputy clerk of court should have noticed and corrected the
error and assigned a new docket number to his petition to annul.
On January 7, 2019, a hearing was held on Kroger’s exceptions. The
trial court found that Cariere’s petition was untimely and granted Kroger’s
exceptions.2 It also signed a judgment maintaining and granting Kroger’s
exceptions, dismissing with prejudice Cariere’s claims and assessing costs to
Cariere.
Cariere appeals the January 7, 2019 judgment.
DISCUSSION
Timeliness of Petition to Annul
In his first assignment of error, Cariere argues that the trial court erred
in ruling that his petition to annul was untimely. He contends that the trial
court incorrectly treated the date the judgment denying his motion for new
2 The trial court also rejected a second request by Kroger’s attorney to revoke Cariere’s pauper status. 3 trial was mailed, i.e., July 12, 2017, as the starting of the one-year period to
file the petition to annul. He states that it was not until after the February
22, 2017 trial that he discovered inconsistencies in the medical records of his
physician who testified at trial. He contends that he filed his July 16, 2018
petition to annul within one year of discovering the inconsistencies and the
actions of Kroger that formed the basis of his petition to annul.
Kroger argues that the trial court correctly granted the exceptions of
no right of action and prescription. It contends that Cariere’s claims based
upon fraud and ill practices prescribed because more than one year had
passed from the time he was aware of the claims to the time he filed the
petition to annul.
A final judgment obtained by fraud or ill practices may be annulled.
La. C.C.P. art. 2004(A). An action to annul a judgment on these grounds
must be brought within one year of the discovery by the plaintiff in the
nullity action of the fraud or ill practices. La. C.C.P.
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Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,846-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ANDREW JOSEPH CARIERE Plaintiff-Appellant
versus
THE KROGER STORE Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 579,031
Honorable Ramon Lafitte, Judge
ANDREW JOSEPH CARIERE Plaintiff-Appellant, In Proper Person
THOMAS, SOILEAU, JACKSON, Counsel for Defendants- BAKER & COLE, L.L.P. Appellees, The Kroger By: Steven E. Soileau Store and Michael Schmidt
Before WILLIAMS, PITMAN, and GARRETT, JJ. PITMAN, J.
Plaintiff-Appellant Andrew Joseph Cariere appeals the trial court’s
granting of exceptions filed by Defendant-Appellee The Kroger Company
(“Kroger”). For the following reasons, we affirm.
FACTS
This case was previously before this court in Cariere v. The Kroger
Store, 50,637 (La. App. 2 Cir. 11/16/16), 208 So. 3d 987. This court
provided the following facts of the case and procedural history:
Andrew Cariere entered a Kroger grocery store in Shreveport, Louisiana, on August 22, 2013, and as he exited the store, he was detained by a store employee for allegedly shoplifting. . . . He was turned over to the police and arrested. Cariere was ultimately charged with theft-shoplifting in Shreveport City Court. . . . The record reflects that the charges were ultimately dismissed.
As a result of this incident, Cariere filed suit against Kroger making claims of assault, battery, torture, defamation, false arrest, and false imprisonment. . . . Subsequently, Kroger filed a motion for summary judgment on the grounds that Cariere could not prove the elements of battery, assault, torture, defamation, false arrest, and false imprisonment. . . . Cariere opposed Kroger’s motion for summary judgment alleging several disputed material facts, which Kroger maintains contradicted his deposition testimony. A hearing was held on the motion, and Kroger’s summary judgment was granted in part, denied in part. The trial court dismissed Cariere’s claims of assault, torture, defamation, false arrest, and false imprisonment, but ruled that an issue of material fact existed regarding Cariere’s battery claim.
This court affirmed the judgment of the trial court, finding that there
were questions of material fact as to whether Kroger’s employee’s actions
constituted reasonable force. This court found there was no evidence that
would indicate Kroger assaulted, tortured, falsely arrested, falsely
imprisoned or defamed Cariere and that he failed to carry his burden to
prevent the granting of summary judgment. On February 22, 2017, a trial was held on Cariere’s battery claim.
The trial court granted Kroger’s motion for involuntary dismissal. On
April 6, 2017, the trial court signed a judgment dismissing with prejudice
Cariere’s claims against Kroger. It stated that Cariere failed to prove by a
preponderance of the evidence that unreasonable force was used against him
and that he failed to prove damages.
On April 12, 2017, Cariere filed a motion for new trial. He
complained of intentional and conspiratorial actions by employees of the
First Judicial District Court, the Shreveport Police Department, and by
Kroger and its attorneys that resulted in the loss of his due process rights. A
hearing on this motion was held on June 19, 2017, and the trial court denied
his motion in open court.1 On July 10, 2017, the trial court filed a judgment
denying the motion for new trial.
On July 16, 2018, Cariere filed a petition to annul the February 22,
2017 judgment for fraud and ill practices. He alleged willful acts that
caused him injury and breaches of good faith and fiduciary duties by officers
of the court, public officials and employees of the City of Shreveport, the
Shreveport Police Department, Kroger’s employees and Kroger’s attorneys.
He stated that he raised these allegations in a separate lawsuit, i.e., Docket
No. 607,091, and requested that the trial court allow the prosecution of the
causes of action in his new lawsuit.
1 Also taken up at this hearing was a motion to revoke Cariere’s pauper status filed by Kroger’s counsel, who alleged that Cariere’s frivolous filings and requests for 30 subpoenas were an abuse of the judicial system. Noting that Cariere had filed 14 lawsuits, the trial court stated, “I am not going to revoke your status, but if you file anything close to what has happened here today, I will revoke it and order that you pay everything from day one including all those subpoenas that were just issued.” 2 On July 23, 2018, Kroger filed exceptions of no right of action, no
cause of action and prescription. It stated that Cariere had no right or cause
of action because he filed his petition to annul under the same docket
number as the judgment he complained of, i.e., Docket No. 579,031, rather
than in a new and separate proceeding. Regarding the exception of
prescription, Kroger stated that more than one year had passed since Cariere
knew or should have known of the alleged fraud or ill practices.
On December 26, 2018, Cariere filed an opposition to Kroger’s
exceptions. He contended that his petition was not untimely because the
judgment denying his motion for new trial was not mailed until July 13,
2017 at the earliest, and he filed his petition to annul on July 16, 2018. He
stated that the deputy clerk of court should have noticed and corrected the
error and assigned a new docket number to his petition to annul.
On January 7, 2019, a hearing was held on Kroger’s exceptions. The
trial court found that Cariere’s petition was untimely and granted Kroger’s
exceptions.2 It also signed a judgment maintaining and granting Kroger’s
exceptions, dismissing with prejudice Cariere’s claims and assessing costs to
Cariere.
Cariere appeals the January 7, 2019 judgment.
DISCUSSION
Timeliness of Petition to Annul
In his first assignment of error, Cariere argues that the trial court erred
in ruling that his petition to annul was untimely. He contends that the trial
court incorrectly treated the date the judgment denying his motion for new
2 The trial court also rejected a second request by Kroger’s attorney to revoke Cariere’s pauper status. 3 trial was mailed, i.e., July 12, 2017, as the starting of the one-year period to
file the petition to annul. He states that it was not until after the February
22, 2017 trial that he discovered inconsistencies in the medical records of his
physician who testified at trial. He contends that he filed his July 16, 2018
petition to annul within one year of discovering the inconsistencies and the
actions of Kroger that formed the basis of his petition to annul.
Kroger argues that the trial court correctly granted the exceptions of
no right of action and prescription. It contends that Cariere’s claims based
upon fraud and ill practices prescribed because more than one year had
passed from the time he was aware of the claims to the time he filed the
petition to annul.
A final judgment obtained by fraud or ill practices may be annulled.
La. C.C.P. art. 2004(A). An action to annul a judgment on these grounds
must be brought within one year of the discovery by the plaintiff in the
nullity action of the fraud or ill practices. La. C.C.P. art. 2004(B).
The burden of proof is on the party seeking the nullity to establish that
the action was brought within one year of the discovery of fraud or ill
practices. Burkett v. Prop. of Douglas, 575 So. 2d 888 (La. App. 2 Cir.
1991), citing Gennuso v. State, 339 So. 2d 335 (La. 1976). The one-year
limitation of La. C.C.P. art. 2004(B) is considered a period of peremption
rather than prescription. See Burkett v. Prop. of Douglas, supra.
Appellate review of the record following a hearing on exceptions is
governed by manifest error when evidence has been introduced at the
hearing. Cooksey v. Heard, McElroy & Vestal, L.L.P., 44,761 (La. App.
2 Cir. 9/23/09), 21 So. 3d 1011.
4 In the case sub judice, the trial court did not err in granting Kroger’s
exception of prescription, although the time limitation in La. C.C.P.
art. 2004(B) is a peremptive period, not a prescriptive one. The inquiry in
this case is whether Cariere filed his July 16, 2018 petition to annul within
one year of when he discovered the alleged fraud or ill practices. A review
of the record demonstrates that he did not file the petition within one year of
the alleged discovery. The facts forming the basis for Cariere’s allegations
occurred between 2014 and the February 22, 2017 trial on his battery claim.
They were raised in letters to the trial court and Kroger and in his April 12,
2017 motion for new trial. Using the date of his motion for new trial as the
very latest date that Cariere knew that he had a cause of action under La.
C.C.P. art. 2004, his claims are clearly preempted. Therefore, the trial court
did not commit manifest error in granting Kroger’s exception of
prescription.
Accordingly, this assignment of error lacks merit.
New Action
In his second assignment of error, Cariere argues that the trial court
erred in ruling that his petition filed in Docket No. 607,091 was not itself a
timely petition to annul. Kroger argues that while the lawsuit in Docket
No. 607,091 might be deemed a petition to annul, it is not before the court
on appeal and has no bearing on whether the petition to annul in Docket
No. 579,031 was filed properly or timely.
Any arguments made by Cariere about his claims asserted in Docket
No. 607,091 are not properly before this court and will not be addressed by
this court.
5 Pauper Status and Sanctions
Kroger argues that Cariere’s pauper status should be revoked and/or
that other sanctions should be imposed against him. It contends that Cariere
has abused the integrity of the judicial process with his frivolous pleadings.
The trial court denied two requests made by Kroger’s counsel to
revoke Cariere’s pauper status. Although we find that Cariere’s filings are
frivolous, we decline to interfere with the trial court’s exercise of discretion
on these rulings. We do note that, although declining to revoke Cariere’s
pauper status, the trial court did not relieve Cariere of the responsibility of
payment of costs simply because he was granted pauper status, and it
assessed all costs to him. Although not liable for the advancement of costs
or as they accrue, an indigent party may ultimately be responsible for the
cost of an unsuccessful lawsuit. La. C.C.P. arts. 5185–5188; Matlock v.
Gen. Motors Corp., 584 So. 2d 1190 (La. App. 2 Cir. 1991).
Accordingly, we order that Cariere pay all costs incurred on appeal.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s granting of
exceptions filed by Defendant-Appellee The Kroger Company. Costs of this
appeal are assessed to Plaintiff-Appellant Andrew Joseph Cariere, in
accordance with La. C.C.P. art. 5188.
AFFIRMED.