Charles Cutler v. City of Sulphur

• Court: Louisiana Court of Appeal
• Decided: December 8, 2010
• Docket: CA-0010-0690
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-690

CHARLES CUTLER

VERSUS

CITY OF SULPHUR

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2009-162 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Gregory W. Belfour Jones, Tête, Fonti & Belfour, L.L.P. P. O. Box 1930 Lake Charles, LA 70602 (337) 439-8315 Counsel for Defendant/Appellee: City of Sulphur

Charles Cutler In Proper Person Hunt Correctional Center P. O. Box 174 St. Gabriel, LA 70776 (318) 649-2100 DECUIR, Judge.

This is pro se appeal from a grant of an exception of prescription in favor of the

defendant.

FACTS

On January 6, 2008, the Sulphur Police Department searched the residence of

Charles Cutler for illegal drugs. On January 12, 2009, Cutler filed suit against the

City of Sulphur seeking compensation for damages to his property sustained in that

search. The City filed an exception of prescription alleging that the suit was

prescribed on its face. The trial court agreed and granted the City’s exception. Cutler

lodged this appeal.

PRESCRIPTION

Cutler first claims that the trial court erred in finding his suit had prescribed.

We disagree. Ordinarily, when dealing with prescription, the burden of proof is on

the party pleading prescription; however, when the plaintiff's petition has clearly

prescribed on its face, as it has here, the burden shifts to the plaintiff to prove that

prescription has been suspended or interrupted. Younger v. Marshall Ind., Inc., 618

So.2d 866 (La.1993). Delictual actions are subject to a prescriptive period of one

year commencing from the date that the injury or damage is sustained. La.Civ.Code

art. 3492. Prescription may be interrupted by the commencement of an action against

the obligor. La.Civ. Code. art. 3462.

Cutler knew that his trailer was searched on January 6, 2008. He had until

January 6, 2009, to file his claim. His suit is prescribed on its face. Accordingly, the

burden of proof shifts to him to show interruption or suspension. He argues that the

discovery of new evidence on June 1, 2009 interrupted prescription. However, new evidence did not change the date on which he knew he had sustained damage and,

therefore, could not interrupt prescription.

Cutler also argues that his lawsuit was timely mailed while he was incarcerated

and, therefore, it did not prescribe by virtue of the “mailbox rule.” Shelton v.

Louisiana Department of Corrections, 96-348 (La.App. 1 Cir. 2/14/97), 740 So.2d

771. The supreme court has declined to extend the “mailbox rule” to all civil

proceedings. Skipper v. Boothe, 08-1292 (La. 10/3/08), 991 So.2d 462. We find it

to be inapplicable in this case.

Finally, Cutler argues that La.R.S. 9:5624 allowed him two years to file his

lawsuit against the City. That statute provides for an extended prescriptive period

when damage to private property was a necessary consequence of construction work

incidental to a public project, and not to those damages that result exclusively from

negligent acts or omissions. Elmer v. West Jefferson Levee District, 01-248 (La.App.

5 Cir. 11/27/01), 803 So.2d 229, 237, writ denied, 02-1032 (La. 6/14/02), 817 So.2d

1158. We find the statute inapplicable to this case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.