Dugas v. Durr

707 So. 2d 1368, 1998 WL 100303
CourtLouisiana Court of Appeal
DecidedMarch 6, 1998
Docket96-744
StatusPublished
Cited by8 cases

This text of 707 So. 2d 1368 (Dugas v. Durr) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dugas v. Durr, 707 So. 2d 1368, 1998 WL 100303 (La. Ct. App. 1998).

Opinion

707 So.2d 1368 (1998)

Mark DUGAS, et ux., Plaintiffs-Respondents,
v.
Richard DURR, et al., Defendants-Relators.

No. 96-744.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1998.

James L. Piker, Baton Rouge, for Mark and Darlene Dugas, Indiv. etc.

Patrick A. Juneau, Jr., Lafayette, for Richard Durr, et al.

Before DECUIR, PETERS and GREMILLION, JJ.

DECUIR, Judge.

The plaintiffs, Mark and Darlene Dugas, filed suit against various defendants, including Sedric Breaux, alleging the rape of their minor daughter while she was in Breaux's care. Breaux filed a peremptory exception of prescription, arguing that a one-year prescriptive period applied under the facts of this case. The trial court denied the exception, finding that the three-year liberative prescriptive period set out in La.Civ. Code art. 3496.1 applied. Breaux sought supervisory writs from this court. A divided five-judge panel granted the writ, finding that the trial court erred in applying the three-year prescriptive period instead of the one-year period. The Dugases applied for a writ of certiorari from the supreme court, which remanded the case to this court for briefing, argument, and a full opinion.

FACTS

On June 28, 1994, the plaintiffs, Mark and Darlene Dugas, individually and on behalf of their minor child, Angel Faye Dugas, filed suit against Richard Durr, Janet Francis Durr, and Sedric Breaux. They alleged that some time between July 16, 1993 and August 9, 1993, their daughter, Angel, who was fourteen years old, was invited to stay overnight with Brittany, Breaux's minor daughter. At approximately 9:30 p.m., two other minors, David Durr and Trent Boudreaux, arrived at the Breaux residence and, subsequently, were left unattended and unsupervised *1369 with Angel and Brittany. The Dugases allege that Angel was raped by David during that time. The Dugases further allege that because they left Angel under the care and supervision of Breaux and his wife, Lynette, a special relationship existed between them. They argue that because of this special relationship, Breaux owed an independent duty to protect Angel, which was breached when he left her alone with David and Trent. They claim that this breach of duty was the proximate cause of the damages sustained by Angel. On November 17, 1995, the Dugases filed a first supplemental and amending petition, alleging that David had reached maturity and adding him as a defendant.

In response to the Dugases' petition, Breaux filed a peremptory exception of prescription, alleging that the events complained of actually occurred prior to June 27, 1993. Thus, he alleged that under the one-year prescriptive period allowed for delictual actions under La.Civ.Code art. 3492, plaintiffs' action had prescribed since their petition was not filed until June 28, 1994. In support of this exception, Breaux filed the affidavits of Trent and his mother, Kimrenee. In his affidavit, Trent stated that the visit when the alleged rape took place occurred prior to his family's vacation, which was between June 27, 1993 and July 2, 1993. Kimrenee testified that during that vacation, she overheard Trent and David, who had accompanied them, discussing the Dugas family's intent to charge David with rape. Also attached as an exhibit were the hotel receipts from the Boudreauxs' vacation, dated July 2, 1993. Breaux answered the Dugases' petition on December 29, 1995, denying their allegations and again arguing that their claims had prescribed.

In their opposition to Breaux's exception of prescription, the Dugases reaffirmed that Angel's visit to Brittany occurred either the last week in July or the first week in August 1993. In her affidavit, Darlene Dugas stated that she related that visit with a vacation to which Angel was invited by the Breauxs, planned for August 10, 1993. She further stated she remembered the visit because when Angel returned home, she noticed that Angel had blisters on her feet. Mrs. Dugas further stated that she did not learn about the rape until November 20, 1993. Mark Dugas also stated that the visit occurred in the last week of July or the first week of August 1993, and that he did not learn about the rape until November 20, 1993. Erica, Angel's older sister, stated in her affidavit that she learned of the incident the day after it occurred, which she testified was subsequent to her sixteenth birthday. Erica's birthday was July 6, 1993.

The Dugases also attached to their affidavits statements made to the Vermilion Parish Sheriff's Office by Trent, Kimrenee, and Lynette. They argue that these prior statements were inconsistent with the affidavits introduced by Breaux. Trent's statement indicates that the incident complained of occurred in July 1993. The Dugases argue that since they did not learn about the rape until November 20, 1993, Trent and David could not have been discussing their intentions to charge David with rape during the time Kimrenee allegedly overheard them on vacation. They also introduced Lynette's statement which indicates that the visit occurred in July 1993, and that she learned on November 20, 1993, that Erica had not informed her parents of the rape.

In support of his peremptory exception of prescription, Breaux introduced the affidavits of his wife, Lynette, and Amanda Hebert. Lynette stated David visited her home only once, on June 12 or 13, 1993. David and Trent arrived at their home at approximately 9:30 to 10:00 p.m. that evening, after which time she and her husband retired for the night at 10:30 p.m. Lynette stated that she heard the doorbell ring at about 11:00 p.m. The next morning, she heard Angel crying and found out that David had "tried to get in her pants" the night before. She attempted to tell Angel's mother on the phone, but was prevented from doing so by Erica. Lynette later learned from Brittany and Amanda, her cousin, that Amanda and Chad Gaspard came to her home and requested David's help. Lynette testified that she learned in November 1993, that the Dugases were charging David with rape. She also stated that the vacation to which Angel was invited was scheduled for July 12-16, 1993. Lynette explained that she listed July as the month in which Angel visited Brittany because that *1370 date was suggested to her by the persons investigating the rape. However, upon further reflection and upon receiving information concerning Gaspard's and Amanda's visit to her home on the evening in question, she determined that the correct date was June 12 or 13, 1993.

Amanda testified that she and Gaspard went to the Breaux residence at approximately 11:00 p.m. on June 12 or 13, 1993, to ask David to accompany them in the assistance of a matter concerning Jay Meche. Meche had earlier confronted Gaspard outside a store. Both David and Trent left with Amanda and Gaspard to confront Meche. When they, along with others, challenged Meche outside his apartment, Meche's sister called the police. As a result, Amanda, Gaspard, and Gaspard's brother were picked up for questioning. A copy of the police report lists the date of this complaint as June 13, 1993, at 11:37 p.m.

A hearing on the peremptory exception of prescription was held on March 4, 1996. In a judgment, dated March 22, 1996, the trial court denied Breaux's exception. On March 12, 1996, Breaux filed a second peremptory exception of prescription. Attached to this exception were all of the affidavits previously filed under the prior exception.

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Cite This Page — Counsel Stack

Bluebook (online)
707 So. 2d 1368, 1998 WL 100303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugas-v-durr-lactapp-1998.