ANTHONY HYGINUS NO. 24-CA-263
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC, ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 849-552, DIVISION "D" HONORABLE JOHN E. LEBLANC, JUDGE PRO TEMPORE, PRESIDING
January 29, 2025
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Jude G. Gravois, Scott U. Schlegel, and Timothy S. Marcel
AFFIRMED AS AMENDED TSM JGG SUS COUNSEL FOR PLAINTIFF/APPELLANT, ANTHONY HYGINUS Pius A. Obioha Joseph R. Barbie, Sr.
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC, OCHSNER CLINIC FOUNDATION, OCHSNER HEALTH FOUNDATION AND OCHSNER HEALTH NETWORK, L.L.C. T. Gregory Schafer Joseph J. Lowenthal, Jr. MARCEL, J.
In this case arising from damages allegedly caused by an alleged elevator
malfunction, plaintiff appeals a judgment of the district court granting defendants’
peremptory exception of prescription. For the following reasons, we amend and
affirm as amended the judgment of the district court.
BACKGROUND AND PROCEDURAL HISTORY
On December 22, 2021, plaintiff Anthony Hyginus was in an elevator at
Ochsner Hospital on Jefferson Highway when an alleged malfunction caused the
elevator to suddenly drop. This incident gave rise to three filings by plaintiff to
recover personal injury damages. The first petition, filed in the 24th Judicial
District Court on December 21, 2022, was voluntarily dismissed without prejudice
by plaintiff. A second petition, filed in the Orleans Parish Civil District Court on
December 22, 2022, was also voluntarily dismissed without prejudice by plaintiff.
The third petition, filed in the 24th Judicial District Court on December 6, 2023,
was dismissed on an exception of prescription, from which plaintiff appeals to this
Court.
Plaintiff’s dual filings in the 24th Judicial District Court and in the Orleans
Parish Civil District Court in December 2022 was attributable to confusion as to
whether the Ochsner Hospital building where the incident occurred is located in
Jefferson Parish or Orleans Parish. In response to plaintiff’s petition first filed in
the 24th Judicial District Court, Ochsner filed an exception of no cause of action on
grounds that plaintiff was its employee at the time of the alleged incident. Also
filed by Ochsner was an exception of vagueness and ambiguity to plaintiff’s
petition. On February 27, 2023, before a hearing on the Ochsner defendants’
exceptions, the district court granted plaintiff’s voluntary motion to dismiss his
December 21, 2022 petition without prejudice.
24-CA-263 1 In the Orleans Parish Civil District Court action, Ochsner excepted to
plaintiff’s petition on grounds of improper venue, no cause of action, and
vagueness and ambiguity. Another named defendant to that suit, TK Elevator
Corporation, also raised an exception of improper venue. A stay of proceedings
before a hearing on defendants’ exceptions was agreed upon by all parties.
Pending before an appellate court at that time was the question of proper venue for
cases involving Ochsner Hospital on Jefferson Highway. After a ruling that the
24th Judicial District Court is the proper venue in such cases, plaintiff filed an ex
parte motion to transfer the Orleans Parish Civil District Court action to the 24 th
Judicial District Court, which the Civil District Court judge signed. That ex parte
order was subsequently vacated on a joint unopposed motion; plaintiff
subsequently moved to dismiss the Civil District Court action without prejudice on
December 17, 2023.
The instant action for recovery of personal injury damages arising from the
afore-described elevator incident was filed by plaintiff in the 24th Judicial District
Court on December 6, 2023, where it was assigned the case number 849-852.
Named as defendants in this action are Ochsner Clinic, Ochsner Clinic Foundation,
Ochsner Health Foundation, Ochsner Health Network, L.L.C., ABC Elevator
Manufacturer Company, ABC Elevator Maintenance Company, and ABC
Insurance Company. It is asserted, without contravention, that the petition filed on
December 6, 2023 is a re-filing of the petition filed by plaintiff on December 21,
2022.
On January 24, 2024, defendants Ochsner Clinic, Ochsner Clinic
Foundation, Ochsner Health Foundation, and Ochsner Health Network, LLC,
(collectively, “Ochsner defendants”) filed a peremptory exception of prescription
wherein they argued that plaintiff’s delictual actions were subject to a one-year
prescriptive period pursuant to La. C.C. art. 3492 and that his previously filed suit
24-CA-263 2 did not serve to interrupt the running of that prescription. The matter came before
the trial court for hearing on March 12, 2024, and on March 25, 2024, the court
issued a judgment granting the peremptory exception and dismissing with
prejudice plaintiff’s suit.
DISCUSSION
On appeal, Mr. Hyginus raises only one assignment of error: whether the
trial court legally erred in its interpretation of the applicable Louisiana Civil Code
articles in its decision to grant the peremptory exception and dismiss the suit. This
presents a question of law. An appellate court reviews questions of law de novo to
determine whether the trial court was legally correct or incorrect. Lavigne v.
Braud, 21-508 (La. App. 5 Cir. 12/22/21), 335 So.3d 972, 974.
Liberative prescription is a mode of extinguishing a legal claim that has not
been filed by a creditor during a time period stipulated by law. La. C.C. art. 3447.
Prescription runs against all persons unless an exception is established by
legislation. La. C.C. art. 3467. The one year liberative prescriptive period for
delictual actions begins to run from the day the injury or damage is sustained. La.
C.C. art. 3492.1 Ordinarily, the party urging prescription bears the burden of proof
at the trial of the exception; however, if the petition is prescribed on its face, the
burden shifts to the plaintiff to show the action is not prescribed by showing
suspension, interruption, or renunciation of the prescription. Everhome Mortgage
Co. v. Lewis, 16-323 (La. App. 5 Cir. 12/7/16), 207 So.3d 646, 650; Knight v.
Imperial Trading Co., 19-41 (La. App. 5 Cir. 5/29/19), 274 So.3d 807, 810.
Prescription is interrupted when the obligee commences action against the obligor
in a court of competent jurisdiction and venue. La. C.C. art. 3462. If action is
commenced in an incompetent court, or in an improper venue, prescription is
1 As of July 1, 2024, this article has been repealed. La. C.C. art. 3493.1 provides for a two year liberative prescriptive period for all delictual actions arising after July 1, 2024.
24-CA-263 3 interrupted only as to a defendant served by process within the prescriptive period.
Id. If prescription is interrupted, the time that has run is not counted; prescription
begins to run anew from the last day of interruption. La. C.C. art. 3466.
Appellant’s arguments primarily concern the interruption of prescription and
the trial court’s application of La. C.C. art. 3463. The starting point in the
interpretation of any statute is the language of the statute itself, as what a
legislature says in the text of a statute is considered the best evidence of its intent
and will. Lavigne, supra. It is a fundamental principle of statutory interpretation
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ANTHONY HYGINUS NO. 24-CA-263
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC, ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 849-552, DIVISION "D" HONORABLE JOHN E. LEBLANC, JUDGE PRO TEMPORE, PRESIDING
January 29, 2025
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges Jude G. Gravois, Scott U. Schlegel, and Timothy S. Marcel
AFFIRMED AS AMENDED TSM JGG SUS COUNSEL FOR PLAINTIFF/APPELLANT, ANTHONY HYGINUS Pius A. Obioha Joseph R. Barbie, Sr.
COUNSEL FOR DEFENDANT/APPELLEE, OCHSNER CLINIC, OCHSNER CLINIC FOUNDATION, OCHSNER HEALTH FOUNDATION AND OCHSNER HEALTH NETWORK, L.L.C. T. Gregory Schafer Joseph J. Lowenthal, Jr. MARCEL, J.
In this case arising from damages allegedly caused by an alleged elevator
malfunction, plaintiff appeals a judgment of the district court granting defendants’
peremptory exception of prescription. For the following reasons, we amend and
affirm as amended the judgment of the district court.
BACKGROUND AND PROCEDURAL HISTORY
On December 22, 2021, plaintiff Anthony Hyginus was in an elevator at
Ochsner Hospital on Jefferson Highway when an alleged malfunction caused the
elevator to suddenly drop. This incident gave rise to three filings by plaintiff to
recover personal injury damages. The first petition, filed in the 24th Judicial
District Court on December 21, 2022, was voluntarily dismissed without prejudice
by plaintiff. A second petition, filed in the Orleans Parish Civil District Court on
December 22, 2022, was also voluntarily dismissed without prejudice by plaintiff.
The third petition, filed in the 24th Judicial District Court on December 6, 2023,
was dismissed on an exception of prescription, from which plaintiff appeals to this
Court.
Plaintiff’s dual filings in the 24th Judicial District Court and in the Orleans
Parish Civil District Court in December 2022 was attributable to confusion as to
whether the Ochsner Hospital building where the incident occurred is located in
Jefferson Parish or Orleans Parish. In response to plaintiff’s petition first filed in
the 24th Judicial District Court, Ochsner filed an exception of no cause of action on
grounds that plaintiff was its employee at the time of the alleged incident. Also
filed by Ochsner was an exception of vagueness and ambiguity to plaintiff’s
petition. On February 27, 2023, before a hearing on the Ochsner defendants’
exceptions, the district court granted plaintiff’s voluntary motion to dismiss his
December 21, 2022 petition without prejudice.
24-CA-263 1 In the Orleans Parish Civil District Court action, Ochsner excepted to
plaintiff’s petition on grounds of improper venue, no cause of action, and
vagueness and ambiguity. Another named defendant to that suit, TK Elevator
Corporation, also raised an exception of improper venue. A stay of proceedings
before a hearing on defendants’ exceptions was agreed upon by all parties.
Pending before an appellate court at that time was the question of proper venue for
cases involving Ochsner Hospital on Jefferson Highway. After a ruling that the
24th Judicial District Court is the proper venue in such cases, plaintiff filed an ex
parte motion to transfer the Orleans Parish Civil District Court action to the 24 th
Judicial District Court, which the Civil District Court judge signed. That ex parte
order was subsequently vacated on a joint unopposed motion; plaintiff
subsequently moved to dismiss the Civil District Court action without prejudice on
December 17, 2023.
The instant action for recovery of personal injury damages arising from the
afore-described elevator incident was filed by plaintiff in the 24th Judicial District
Court on December 6, 2023, where it was assigned the case number 849-852.
Named as defendants in this action are Ochsner Clinic, Ochsner Clinic Foundation,
Ochsner Health Foundation, Ochsner Health Network, L.L.C., ABC Elevator
Manufacturer Company, ABC Elevator Maintenance Company, and ABC
Insurance Company. It is asserted, without contravention, that the petition filed on
December 6, 2023 is a re-filing of the petition filed by plaintiff on December 21,
2022.
On January 24, 2024, defendants Ochsner Clinic, Ochsner Clinic
Foundation, Ochsner Health Foundation, and Ochsner Health Network, LLC,
(collectively, “Ochsner defendants”) filed a peremptory exception of prescription
wherein they argued that plaintiff’s delictual actions were subject to a one-year
prescriptive period pursuant to La. C.C. art. 3492 and that his previously filed suit
24-CA-263 2 did not serve to interrupt the running of that prescription. The matter came before
the trial court for hearing on March 12, 2024, and on March 25, 2024, the court
issued a judgment granting the peremptory exception and dismissing with
prejudice plaintiff’s suit.
DISCUSSION
On appeal, Mr. Hyginus raises only one assignment of error: whether the
trial court legally erred in its interpretation of the applicable Louisiana Civil Code
articles in its decision to grant the peremptory exception and dismiss the suit. This
presents a question of law. An appellate court reviews questions of law de novo to
determine whether the trial court was legally correct or incorrect. Lavigne v.
Braud, 21-508 (La. App. 5 Cir. 12/22/21), 335 So.3d 972, 974.
Liberative prescription is a mode of extinguishing a legal claim that has not
been filed by a creditor during a time period stipulated by law. La. C.C. art. 3447.
Prescription runs against all persons unless an exception is established by
legislation. La. C.C. art. 3467. The one year liberative prescriptive period for
delictual actions begins to run from the day the injury or damage is sustained. La.
C.C. art. 3492.1 Ordinarily, the party urging prescription bears the burden of proof
at the trial of the exception; however, if the petition is prescribed on its face, the
burden shifts to the plaintiff to show the action is not prescribed by showing
suspension, interruption, or renunciation of the prescription. Everhome Mortgage
Co. v. Lewis, 16-323 (La. App. 5 Cir. 12/7/16), 207 So.3d 646, 650; Knight v.
Imperial Trading Co., 19-41 (La. App. 5 Cir. 5/29/19), 274 So.3d 807, 810.
Prescription is interrupted when the obligee commences action against the obligor
in a court of competent jurisdiction and venue. La. C.C. art. 3462. If action is
commenced in an incompetent court, or in an improper venue, prescription is
1 As of July 1, 2024, this article has been repealed. La. C.C. art. 3493.1 provides for a two year liberative prescriptive period for all delictual actions arising after July 1, 2024.
24-CA-263 3 interrupted only as to a defendant served by process within the prescriptive period.
Id. If prescription is interrupted, the time that has run is not counted; prescription
begins to run anew from the last day of interruption. La. C.C. art. 3466.
Appellant’s arguments primarily concern the interruption of prescription and
the trial court’s application of La. C.C. art. 3463. The starting point in the
interpretation of any statute is the language of the statute itself, as what a
legislature says in the text of a statute is considered the best evidence of its intent
and will. Lavigne, supra. It is a fundamental principle of statutory interpretation
that when a law is clear and unambiguous and its application does not lead to
absurd consequences, the law shall be applied as written, and no further
interpretation may be made in search of the intent of the legislature. La. C.C. art. 9.
La. C.C. art. 3463 states:
A. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending.
B. Interruption is considered never to have occurred if the plaintiff abandons the suit, voluntarily dismisses the suit at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. The dismissal of a suit pursuant to a compromise does not constitute a voluntary dismissal.
In examining this statute, the Louisiana Supreme Court has stated:
This statute could not be clearer: “Interruption of prescription is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, …” Because interruption is considered never to have occurred, that means the second suit was never interrupted, and it does not matter when the second suit was filed.
Sims v. Am. Ins. Co., 12-0204 (La. 10/16/12), 101 So.3d 1, 6. (Emphasis in
original.)
In light of this clear and unambiguous language, we find no error in the
district court's granting of defendants' peremptory exception. Because plaintiff
voluntarily dismissed his first filed actions, there was no interruption of the
24-CA-263 4 running of prescription, and therefore his December 6, 2023 petition filed nearly
two years after the date of the alleged incident is untimely and prescribed.
Finally, we note that the record before us indicates that the exception of
prescription was filed only by the Ochsner defendants or less than all of the
defendants named in the petition. Thus, the judgment is properly considered as a
partial final judgment under La. C.C.P. art. 1915(A). We amend the language of
the judgment to state:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claims filed by the plaintiff, Anthony Hyginus, against defendants Ochsner Clinic, Ochsner Clinic Foundation, Ochsner Health Foundation and Ochsner Health Network, LLC are hereby dismissed, with prejudice.
With this amended language, we affirm the judgment of the district court.
AFFIRMED AS AMENDED
24-CA-263 5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-263 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JOHN E. LEBLANC (DISTRICT JUDGE) HONORABLE JACQUELINE F. MALONEY (DISTRICT JUDGE) JOSEPH R. BARBIE, SR. (APPELLANT) PIUS A. OBIOHA (APPELLANT) JOSEPH J. LOWENTHAL, JR. (APPELLEE) T. GREGORY SCHAFER (APPELLEE)
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