STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
21-196
HEBERT’S HOLDINGS, L.L.C.
VERSUS
STATE FARM FIRE AND CASUALTY COMPANY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2019-7831 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
CHARLES G. FITZGERALD JUDGE
Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.
AFFIRMED. R. Scott Iles Post Office Box 3385 Lafayette, Louisiana 70502 (337) 234-8800 Counsel for Plaintiff/Appellant: Hebert’s Holdings, L.L.C.
Katherine Paine Martin Gretchen Heider Mayard Post Office Box 81338 Lafayette, Louisiana 70598-1338 (337) 291-2440 Counsel for Defendant/Appellee: State Farm Fire and Casualty Company FITZGERALD, Judge.
The issue on appeal is whether the trial court erred in sustaining the general
liability insurer’s exception of prescription.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Hebert’s Holdings, L.L.C., owns a commercial office building in
Lafayette, Louisiana. The building was insured by a general liability policy issued
by Defendant, State Farm Fire and Casualty Company.
On August 8, 2017, a thunderstorm producing wind and hail allegedly caused
damage to the roof. Glenn Hebert, who is the president of Hebert’s Holdings,
submitted a claim to State Farm in the amount $18,755. This amount represented
the cost to replace the roof. Several months later, State Farm denied the claim,
explaining that the damage resulted from ordinary “wear and tear” rather than the
storm. State Farm also explained that the roof shingles were defective.
In response, on December 18, 2019, Hebert’s Holdings filed a petition for
damages against State Farm for the replacement cost of the roof. The petition also
claimed penalties and attorney fees pursuant to La.R.S. 22:1892 for State Farm’s
alleged failure to properly adjust the claim.
Nearly two months later, State Farm filed its answer. Then, in September
2020, State Farm filed a combined exception of prescription and motion for partial
summary judgment. The exception of prescription was directed at the damages
claim for roof replacement, whereas the motion for partial summary judgment
sought the dismissal of the claim for penalties and attorney fees.
The hearing on prescription and summary judgment was held on November 9,
2020. From the bench, the trial court sustained the exception of prescription and
granted the motion for partial summary judgment, thereby dismissing all claims of Hebert’s Holdings. The ruling was reduced to written judgment signed that same
day. It is from this judgment that Hebert’s Holdings appeals.
In its sole assignment of error, Hebert’s Holdings asserts that the trial court
erred in sustaining State Farm’s exception of prescription. Since this assignment is
limited to prescription, we will not address the trial court’s grant of partial summary
judgment.
LAW AND ANALYSIS
“Generally, prescription statutes are strictly construed against prescription and
in favor of the claim sought to be extinguished by it. The burden of proof on the
prescription issue lies with the party asserting it unless the plaintiff’s claim is barred
on its face, in which case the burden shifts to the plaintiff.” Bailey v. Khoury, 04-
620, p. 9 (La. 1/20/05), 891 So.2d 1268, 1275 (citation omitted).
At the hearing on the exception of prescription, evidence may be introduced
to support or to controvert the exception. La.Code Civ.P. art. 931. “If no evidence
is introduced, the reviewing court simply determines whether the trial court’s finding
was legally correct.” Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5 (La.App.
3 Cir. 4/6/11), 61 So.3d 826, 829-30. “In the absence of evidence, the exception of
prescription must be decided on the facts alleged in the petition, which are accepted
as true.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d
84, 88.
Here, the record is clear that no evidence was introduced at the hearing on
State Farm’s exception of prescription. No witnesses were called to testify; no
exhibits were admitted into evidence; no stipulations of fact were recited to the court;
and the court did not take judicial notice of any adjudicative facts or legal matters.
While counsel for State Farm did attempt to make an evidentiary offering of
the documents attached to its supporting memorandum, the transcript reflects that 2 the trial court was never afforded the opportunity to rule on the admissibility of these
documents. There was no colloquy between the trial court and opposing counsel
regarding this evidentiary offering. And there was no ruling by the trial court
admitting the documents into evidence. Thus, the documents attached to State
Farm’s supporting memorandum were not properly and officially introduced into
evidence for the exception of prescription.
“Evidence not properly and officially offered and introduced cannot be
considered, even if it is physically placed in the record. Documents attached to
memoranda do not constitute evidence and cannot be considered as such on appeal.”
Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.
And “[w]hile the legislature has provided special rules addressing documents
which may be considered on motions for summary judgment without formal
introduction into evidence, no such rules exist for exceptions of prescription.” Desi
v. Thomas Jefferson Constr. Corp., 19-502, p. 4 (La.App. 5 Cir. 10/5/20), 304 So.3d
1068, 1072.
In the end, because no evidence was introduced at the hearing on State Farm’s
exception of prescription, the standard of our review is de novo; and in determining
the appropriateness of the trial court’s judgment, we will limit our review to the facts
alleged by Hebert’s Holdings in its petition, and the alleged facts will be accepted as
true.
The petition was filed on December 18, 2019, and alleges that Hebert’s
Holdings owns the office building at issue; that State Farm insured the office
building under a policy of general liability coverage, including structure coverage;
and that the damage to the building (roof damage) occurred on August 8, 2017.
The prescription statute that is applicable to this type of claim is La.R.S.
22:1311, which provides a two-year prescriptive period commencing from the date 3 of loss. Thus, on the face of the petition, Hebert’s Holdings filed its claim against
State Farm more than two years after the date of loss. This means that the burden of
proof on the prescription issue shifted to Hebert’s Holdings to prove that its damages
claim had not prescribed.
To this end, Hebert’s Holdings argues that prescription was interrupted
because its president, Glenn Hebert, filed a previous lawsuit against State Farm for
the same damages. There are two problems with this argument.
First, no evidence of the previously filed suit was introduced at the hearing on
the exception of prescription. This previous suit, according to the appellate briefs,
was filed by Glenn Hebert in his personal capacity; and even though it was filed in
the same district court as the case before us, the two suits were filed under
completely different docket numbers. Because no documentation of the previous
suit was admitted into evidence at the hearing on prescription, we are precluded from
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
21-196
HEBERT’S HOLDINGS, L.L.C.
VERSUS
STATE FARM FIRE AND CASUALTY COMPANY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2019-7831 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
CHARLES G. FITZGERALD JUDGE
Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.
AFFIRMED. R. Scott Iles Post Office Box 3385 Lafayette, Louisiana 70502 (337) 234-8800 Counsel for Plaintiff/Appellant: Hebert’s Holdings, L.L.C.
Katherine Paine Martin Gretchen Heider Mayard Post Office Box 81338 Lafayette, Louisiana 70598-1338 (337) 291-2440 Counsel for Defendant/Appellee: State Farm Fire and Casualty Company FITZGERALD, Judge.
The issue on appeal is whether the trial court erred in sustaining the general
liability insurer’s exception of prescription.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Hebert’s Holdings, L.L.C., owns a commercial office building in
Lafayette, Louisiana. The building was insured by a general liability policy issued
by Defendant, State Farm Fire and Casualty Company.
On August 8, 2017, a thunderstorm producing wind and hail allegedly caused
damage to the roof. Glenn Hebert, who is the president of Hebert’s Holdings,
submitted a claim to State Farm in the amount $18,755. This amount represented
the cost to replace the roof. Several months later, State Farm denied the claim,
explaining that the damage resulted from ordinary “wear and tear” rather than the
storm. State Farm also explained that the roof shingles were defective.
In response, on December 18, 2019, Hebert’s Holdings filed a petition for
damages against State Farm for the replacement cost of the roof. The petition also
claimed penalties and attorney fees pursuant to La.R.S. 22:1892 for State Farm’s
alleged failure to properly adjust the claim.
Nearly two months later, State Farm filed its answer. Then, in September
2020, State Farm filed a combined exception of prescription and motion for partial
summary judgment. The exception of prescription was directed at the damages
claim for roof replacement, whereas the motion for partial summary judgment
sought the dismissal of the claim for penalties and attorney fees.
The hearing on prescription and summary judgment was held on November 9,
2020. From the bench, the trial court sustained the exception of prescription and
granted the motion for partial summary judgment, thereby dismissing all claims of Hebert’s Holdings. The ruling was reduced to written judgment signed that same
day. It is from this judgment that Hebert’s Holdings appeals.
In its sole assignment of error, Hebert’s Holdings asserts that the trial court
erred in sustaining State Farm’s exception of prescription. Since this assignment is
limited to prescription, we will not address the trial court’s grant of partial summary
judgment.
LAW AND ANALYSIS
“Generally, prescription statutes are strictly construed against prescription and
in favor of the claim sought to be extinguished by it. The burden of proof on the
prescription issue lies with the party asserting it unless the plaintiff’s claim is barred
on its face, in which case the burden shifts to the plaintiff.” Bailey v. Khoury, 04-
620, p. 9 (La. 1/20/05), 891 So.2d 1268, 1275 (citation omitted).
At the hearing on the exception of prescription, evidence may be introduced
to support or to controvert the exception. La.Code Civ.P. art. 931. “If no evidence
is introduced, the reviewing court simply determines whether the trial court’s finding
was legally correct.” Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5 (La.App.
3 Cir. 4/6/11), 61 So.3d 826, 829-30. “In the absence of evidence, the exception of
prescription must be decided on the facts alleged in the petition, which are accepted
as true.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d
84, 88.
Here, the record is clear that no evidence was introduced at the hearing on
State Farm’s exception of prescription. No witnesses were called to testify; no
exhibits were admitted into evidence; no stipulations of fact were recited to the court;
and the court did not take judicial notice of any adjudicative facts or legal matters.
While counsel for State Farm did attempt to make an evidentiary offering of
the documents attached to its supporting memorandum, the transcript reflects that 2 the trial court was never afforded the opportunity to rule on the admissibility of these
documents. There was no colloquy between the trial court and opposing counsel
regarding this evidentiary offering. And there was no ruling by the trial court
admitting the documents into evidence. Thus, the documents attached to State
Farm’s supporting memorandum were not properly and officially introduced into
evidence for the exception of prescription.
“Evidence not properly and officially offered and introduced cannot be
considered, even if it is physically placed in the record. Documents attached to
memoranda do not constitute evidence and cannot be considered as such on appeal.”
Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.
And “[w]hile the legislature has provided special rules addressing documents
which may be considered on motions for summary judgment without formal
introduction into evidence, no such rules exist for exceptions of prescription.” Desi
v. Thomas Jefferson Constr. Corp., 19-502, p. 4 (La.App. 5 Cir. 10/5/20), 304 So.3d
1068, 1072.
In the end, because no evidence was introduced at the hearing on State Farm’s
exception of prescription, the standard of our review is de novo; and in determining
the appropriateness of the trial court’s judgment, we will limit our review to the facts
alleged by Hebert’s Holdings in its petition, and the alleged facts will be accepted as
true.
The petition was filed on December 18, 2019, and alleges that Hebert’s
Holdings owns the office building at issue; that State Farm insured the office
building under a policy of general liability coverage, including structure coverage;
and that the damage to the building (roof damage) occurred on August 8, 2017.
The prescription statute that is applicable to this type of claim is La.R.S.
22:1311, which provides a two-year prescriptive period commencing from the date 3 of loss. Thus, on the face of the petition, Hebert’s Holdings filed its claim against
State Farm more than two years after the date of loss. This means that the burden of
proof on the prescription issue shifted to Hebert’s Holdings to prove that its damages
claim had not prescribed.
To this end, Hebert’s Holdings argues that prescription was interrupted
because its president, Glenn Hebert, filed a previous lawsuit against State Farm for
the same damages. There are two problems with this argument.
First, no evidence of the previously filed suit was introduced at the hearing on
the exception of prescription. This previous suit, according to the appellate briefs,
was filed by Glenn Hebert in his personal capacity; and even though it was filed in
the same district court as the case before us, the two suits were filed under
completely different docket numbers. Because no documentation of the previous
suit was admitted into evidence at the hearing on prescription, we are precluded from
considering this argument on appeal.
But even if documentation of this earlier suit had been admitted into evidence,
there is a second problem with this argument: it is legally unfounded. As noted
above, the previous suit that Hebert’s Holdings is referring to was filed by Glenn
Hebert in his personal capacity. Mr. Hebert personally sued State Farm for (a)
damages to his residence and (b) damages to the office building owned by Hebert’s
Holdings, L.L.C. Because Hebert’s Holdings was not a plaintiff in that suit, State
Farm filed an exception of no right of action as to the claim for office damages. The
trial court sustained the exception, but then gave Mr. Hebert additional time to
amend to add Hebert’s Holdings as a plaintiff. No amendment was made, and the
claim against State Farm for office damages was dismissed without prejudice in
November 2019. Nearly one month later, the case now on appeal was filed in the
district court by Hebert’s Holdings. 4 Hebert’s Holdings nevertheless contends that the filing of the previous suit by
Mr. Hebert interrupted prescription from running against the suit now on appeal
under La.Civ.Code art. 3462. We disagree.
Louisiana Civil Code Article 3462 (emphasis added) states as follows:
Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.
The case before us is not between an owner and possessor. Additionally, in
the previous suit, Mr. Hebert commenced an action against State Farm; Mr. Hebert
was the obligee, State Farm was the obligor, and the action involved a general
homeowner’s policy. By comparison, in the case now on appeal, Hebert’s Holdings,
L.L.C., commenced an action against State Farm; Hebert’s Holdings is the obligee,
State Farm is the obligor, and the action involves a commercial policy. Mr. Hebert
and Hebert’s Holdings are completely different “persons” (different obligees) under
Louisiana law. See La.Civ.Code art. 24. And while it is true that a suit filed by one
solidary obligee against the obligor interrupts prescription in favor of all solidary
obligees, Mr. Hebert and Hebert’s Holdings are not solidary obligees. In sum, the
previous action filed by Mr. Hebert against State Farm could not have interrupted
prescription from running against the suit now on appeal. Louisiana Civil Code
Article 3462 is not applicable to these facts.
For the above reasons, the trial court did not err in sustaining State Farm’s
exception of prescription.
5 DECREE
We affirm the judgment of the trial court sustaining the exception of
prescription filed by State Farm Fire and Casualty Company. All costs of this appeal
are assessed against Hebert’s Holdings, L.L.C.
AFFIRMED.