Carl J. Calamia, Jr. Cathy Calamia Giancoatieri and Karen Calamia, Individually and as the Children of Carl J. Calamia, Sr. and Theresa Calamia Versus The Parish of Jefferson, Ferguson Enterprises, Inc., Doing Business as Louisiana Utilities Supply Company, a Ferguson Subsidiary, HSBC Holdings, Plc, and/or the Hongkong & Shanghai Banking Corporation Limited as Successors-In-Interest to the Asbestos Fiber Shipper/ Commodities Trader/ Merchant Bank Antony Gibbs & Co., Encana Corporation as Parent and Successor-In-Interest to Cassiar Resources Limited and Cassiar Asbestos Corporation Limited, Formosa Plastics Corporation U.S.a, Individually and as Parent, Alter-Ego and Successor-In-Interest to J-M Manufacturing Company, Inc., Individually and as Parent and Alter-Ego to J-M A/C Pipe Corporation, and Norca Corporation

• Court: Louisiana Court of Appeal
• Decided: December 30, 2019
• Docket: 19-CA-270
• Status: Unknown

Opinion

CARL J. CALAMIA, JR. ET AL NO. 19-CA-270

VERSUS FIFTH CIRCUIT

THE PARISH OF JEFFERSON, ET AL COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 732-538, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

December 30, 2019

HANS J. LILJEBERG JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

VACATED AND REMANDED HJL FHW JGG COUNSEL FOR PLAINTIFF/APPELLANT, CARL J. CALAMIA, JR., CATHY CALAMIA GIANCOATIERI AND KAREN CALAMIA, INDIVIDUALLY AND AS THE CHILDREN OF CARL J. CALAMIA, SR. AND THERESA CALAMIA Erin Bruce Saucier Caleb H. Didriksen, III

COUNSEL FOR DEFENDANT/APPELLEE, THE PARISH OF JEFFERSON Michael S. Futrell Matthew D. Moghis LILJEBERG, J.

Plaintiffs/appellants, Carl J. Calamia, Jr., Cathy Calamia Giancoatieri and

Karen Calamia, individually and as children of Carl J. Calamia, Sr. (collectively

referred to as “plaintiffs”), appeal the trial court’s January 29, 2019 judgment

granting an exception of prescription filed by defendant, Parish of Jefferson. On

appeal, plaintiffs argue their lawsuit is not prescribed because a similar lawsuit

pending against joint tortfeasors in Orleans Parish tolled the prescriptive period for

their claims against the Parish of Jefferson. As discussed more fully below,

however, the relevant pleadings from the Orleans Parish lawsuit were not admitted

into evidence and the trial court relied on these documents in rendering its decision

to grant the exception of prescription in favor of the Parish of Jefferson.

Accordingly, we must vacate the trial court’s judgment and remand for further

proceedings.

FACTS AND PROCEDURAL BACKGROUND

This matter arises from the death of Carl Calamia, Sr. on February 21, 2007,

following a diagnosis of malignant mesothelioma. On October 31, 2013, Mr.

Calamia’s children filed suit against the Parish of Jefferson and several other

defendants in the 24th Judicial District Court for the Parish of Jefferson raising

survivorship and wrongful death claims. In their petition, plaintiffs alleged that

Mr. Calamia contracted mesothelioma when he worked as an underground utilities

contractor installing, repairing and replacing asbestos-cement water pipes

throughout Jefferson Parish.

On October 26, 2018, the Parish of Jefferson filed an exception of

prescription arguing that plaintiffs’ survivorship and wrongful death claims, filed

more than six years after Mr. Calamia’s death, are untimely.1 In its exception, the

1 The Parish of Jefferson also filed an exception of no right of action pursuant to La. C.C.P. art 425(A), which provides that a “party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” The Parish of Jefferson argued that based on this provision,

19-CA-270 1 Parish of Jefferson explained plaintiffs would argue that the filing of an earlier

lawsuit against the Parish of Jefferson, and numerous other alleged joint

tortfeasors, in Orleans Parish Civil District Court on November 21, 2006 (“Orleans

Parish lawsuit”), served to toll the prescriptive period for their claims pending in

the current lawsuit pursuant to La. C.C. art. 2324(C).2 The Parish of Jefferson

argued that because plaintiffs filed the Orleans Parish lawsuit in an improper venue

according to La. R.S. 13:5107(B), and also failed to serve its registered agent for

service of process within the prescriptive period, La. C.C. art. 3462 required a

finding that the Orleans Parish lawsuit did not serve to interrupt the prescriptive

period with respect to plaintiffs’ claims against it. The Parish of Jefferson attached

to its supporting memorandum, a copy of the original and amended petition for

damages filed in the Orleans Parish lawsuit, as well as a copy of exceptions of

improper venue and improper service that it filed in response and a January 17,

2007 order dismissing plaintiffs’ claims against it in the Orleans Parish lawsuit

without prejudice.3

As expected, in response to Parish of Jefferson’s exception of prescription,

plaintiffs argued that pursuant to La. C.C. art. 2324(C), the Orleans Parish lawsuit

pending against the Parish of Jefferson’s alleged joint tortfeasors interrupted the

prescriptive period with respect to their claims in the present matter.

Following a hearing on January 16, 2019, the trial court granted the

exception of prescription and found that prescription was not interrupted because

the Orleans Parish lawsuit “was filed initially in an improper venue, [and] that

plaintiffs should be barred from bringing the current lawsuit because they chose to maintain their lawsuit in Orleans Parish. Due to its decision to grant the Parish of Jefferson’s exception of prescription, the trial court ruled the exception of no right of action was moot. 2 La. C.C.P. art 2324(C) provides as follows: “Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” 3 The Parish of Jefferson claims that plaintiffs voluntarily dismissed it from the Orleans Parish lawsuit prior to a hearing on its exceptions.

19-CA-270 2 there was no proper service within the prescriptive period.” On January 29, 2019,

the trial court signed a written judgment granting the exception of prescription and

dismissing all of plaintiffs’ claims against the Parish of Jefferson with prejudice.

On February 25, 2019, plaintiffs filed a timely motion for devolutive appeal,

which the trial court granted on March 7, 2019.

DISCUSSION

On appeal, plaintiffs ask this Court to overturn the trial court’s judgment

granting the exception of prescription because the Orleans Parish lawsuit pending

against the Parish of Jefferson’s joint tortfeasors tolled the prescriptive period

pursuant to La. C.C. art 2324(C). The Parish of Jefferson argues, on the other

hand, that pursuant to La. C.C. art. 3562, the Orleans Parish lawsuit, filed in an

improper venue and served on an improper agent for service of process did not

interrupt the prescriptive period.

Both parties relied on the pleadings from the Orleans Parish lawsuit when

presenting their arguments regarding the exception of prescription to the trial court.

It is also apparent from the reasons cited above that the trial court also relied on

these pleadings to determine the Orleans Parish lawsuit did not interrupt the

prescriptive period in the present matter. However, our review of the record

indicates these documents were not admitted into evidence.4

Evidence not properly offered and introduced cannot be considered, even if

it was physically placed in the record. Denoux v. Vessel Management Services,

Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. When considering an exception of

prescription, documents simply attached to memoranda do not constitute evidence

and cannot be considered as evidence on appeal. In Re Spurlock, 18-666 (La. App.

4 The transcript and record from the January 16, 2019 hearing indicates that the only documents entered into evidence were documents from the Louisiana Secretary of State regarding the Parish of Jefferson’s agent for service of process, which the Parish of Jefferson offered into evidence.

19-CA-270 3 5 Cir. 4/24/19), 271 So. 3d 338, 341 (finding the trial court erred by granting an

exception of prescription in the absence of properly admitted evidence).5

Upon our review of the record in this matter, we determine that the parties

failed to introduce, and the trial court did not admit, the Orleans Parish pleadings

into evidence. Consequently, there was no properly admitted evidence for the trial

court to consider when it determined that the Orleans Parish lawsuit did not serve

to interrupt prescription in this matter. Accordingly, we find the trial court erred

by granting the exception of prescription in the absence of properly admitted

evidence.

DECREE

For the foregoing reasons, we vacate the trial court’s judgment on the

exception of prescription and remand for further proceedings.

VACATED AND REMANDED

5 An exception exists with respect to summary judgment motions. La. C.C.P. art. 966(D)(2) permits a court to “consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made.” See Wood Materials, LLC v. City of Harahan, 17-142 (La. App. 5 Cir. 10/2/17), 228 So.3d 293, 295 fn.2.

19-CA-270 4 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. 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 DECEMBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-270 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE) ERIN BRUCE SAUCIER (APPELLANT) MICHAEL S. FUTRELL (APPELLEE) JANICE M. CULOTTA (APPELLEE) WILLIAM PETER CONNICK (APPELLEE) ALEXANDER A. LAURICELLA MATTHEW D. MOGHIS (APPELLEE) (APPELLANT)

MAILED CALEB H. DIDRIKSEN, III (APPELLANT) GAYLA M. MONCLA (APPELLEE) ATTORNEY AT LAW ATTORNEY AT LAW 3114 CANAL STREET 400 CONVENTION STREET NEW ORLEANS, LA 70119 SUITE 700 BATON ROUGE, LA 70802