HEIDI RIETH AND JASON * NO. 2023-CA-0547 BUSH * VERSUS COURT OF APPEAL * MARIA MUNGUIA FOURTH CIRCUIT * STATE OF LOUISIANA *******
CONSOLIDATED WITH: CONSOLIDATED WITH:
LORRAINE SMILEY NO. 2023-CA-0548
VERSUS
HEIDI RIETH AND JASON BUSH
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06729 C/W 2016-01636 & 2015-06729, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Scott M. Galante Stephanie M. Hartman THE GALANTE LITIGATION GROUP, LLC 816 Cadiz Street New Orleans, LA 70115
COUNSEL FOR APPELLEE
R. Ethan Zubic Phillip J. Antis, Jr. GORDON ARATA MONTGOMERY BARNETT 201 St. Charles Avenue 40th Floor New Orleans, LA 70170-4000
Michael R. Dodson Loretta G. Mince FISHMAN HAYGOOD, L.L.P. 201 St. Charles Avenue 1 46th Floor New Orleans, LA 70170-4600
COUNSEL FOR APPELLANT
APPEAL CONVERTED TO WRIT. WRIT GRANTED AND JUDGMENT REVERSED. EXCEPTION OF PRECRIPTION SUSTAINED.
MAY 30, 2024
2 SCJ
RML
RDJ Plaintiff/Defendant-in-reconvention, Lorraine Smiley, seeks review of the
trial court’s judgment of May 17, 2023, denying her exception of prescription filed
in response to the reconventional demand filed by Heidi Rieth and Jason Bush.
For the following reasons, we convert the appeal to a supervisory writ, grant the
writ, reverse the trial court’s judgment and sustain the exception of prescription as
to the abuse of process cause of action.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
This litigation arises from a dispute between neighbors over the use of a
driveway on the property at 4300 Prytania Street. The driveway was alleged to be
a servitude on behalf of the property at 4308 Prytania Street. On July 15, 2015,
Heidi Rieth and Jason Bush, the owners of 4308 Prytania Street, filed suit seeking
injunctive relief and damages against Maria Munguia, owner of the property
located at 4300 Prytania Street, to prevent Ms. Munguia from placing a gate on the
driveway and preventing their use of the driveway. On August 26, 2015, the trial
court issued a restraining order that Ms. Munguia refrain from interfering with the
Rieth and Bush’s use of the servitude, and ordered that Ms. Munguia remove the
gates preventing the use of the servitude.
While the litigation was pending, Ms. Munguia sold 4300 Prytania Street to
Lorraine Smiley on January 24, 2016. On February 18, 2016, Ms. Smiley filed a
petition for declaratory judgment, injunctive relief, and damages. She sought 1 declarations that the servitude on the property she purchased was extinguished due
to non-use and that the servitude no longer burdened her property. Heidi Rieth
and Jason Bush filed an answer, affirmative defenses and exceptions on August 1,
2016. They also filed a motion to transfer and consolidate the two matters, which
was granted.
Rieth and Bush thereafter filed a reconventional demand on August 31,
2020, alleging abuse of process, acquisitive prescription, and nullity claims
regarding a probated testament and a judgment of possession by which Ms.
Munguia obtained title of the immovable property. Smiley filed exceptions of
improper venue and improper cumulation of actions. The trial court granted the
exception of improper cumulation and dismissed the nullity claims in the
reconventional demand. Smiley filed an exception of no cause of action to the
abuse of process and acquisitive prescription claims. The trial court denied the
exception of no cause of action. Smiley then filed an exception of prescription as
to the abuse of process claim, which was denied by the trial court on May 17,
2023. Smiley filed a motion for appeal on June 6, 2023, seeking appellate review
of the trial court’s judgment denying the exception of prescription.
JURISDICTION
Before this Court can address the merits of Smiley’s appeal, it must first
determine whether it has subject matter jurisdiction to consider the judgment on
appeal. Appellate courts have the duty to determine, sua sponte, whether subject
matter jurisdiction exists, even when the parties do not raise the issue. Renne v.
Board of Supervisors for University of Louisiana System, 2023-0798, p. 3 (La.
App. 4 Cir. 5/13/24), __ So.3d ___, ___, 2024 WL 2126867, *2 (citation omitted).
“This Court lacks subject matter jurisdiction if the appeal as lodged does not 2 contain a valid, final judgment.” Id., p. 4. “A judgment that determines the merits
in whole or in part is a final judgment.” La. C.C.P. art. 1841. “A judgment that
does not determine the merits but only preliminary matters in the course of the
action is an interlocutory judgment.” Id. “A final judgment is appealable in all
causes in which appeals are given by law.” La. C.C.P. art. 2083(A). “An
interlocutory judgment is appealable only when expressly provided by law.” La.
C.C.P. art. 2083(C).
The denial of an exception of prescription is an interlocutory ruling and not
subject to being designated as final judgment. La. C.C.P. article 1915(B)(1).
Further, “a trial court's certification pursuant to La. C.C.P. art. 1915(B) is not
determinative of jurisdiction.” McGaha v. Franklin Homes, Inc., 2021-0244, p. 23
(La. App. 4 Cir. 2/4/22), 335 So.3d 842, 857 (citation omitted). “A trial court's
certification of an interlocutory judgment as ‘final’ pursuant to La. C.C.P. art.
1915(B)(1) does not transform the interlocutory judgment into a judgment subject
to an immediate appeal.” Id., pp. 24-25, 335 So.3d at 858.
In the present matter, the trial court's judgment is interlocutory in nature and
also incapable of certification as a final and appealable judgment. “Thus, ‘[t]he
proper procedural vehicle to seek review of an interlocutory judgment that is not
immediately appealable is an application for supervisory writ.’ ” Jacobs v. Metzler-
Brenckle, 2020-0585, 2020-0607, p. 13 (La. App. 4 Cir. 5/26/21), 322 So. 3d 347,
356 (quoting Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, 2012-
0907, p. 4 (La. App. 4 Cir. 2/20/13), 155 So. 3d 560, 562).
This Court is vested with the discretionary power to convert an appeal of an
interlocutory judgment into an application for supervisory review. The initial
inquiry posed when we are determining whether to exercise our discretion to 3 convert an appeal to an application for supervisory review is whether “the motion
for appeal was filed within the thirty-day delay allowed under Rule 4–3 of the
Uniform Rules—Courts of Appeal for the filing of an application for supervisory
writs.” Ramirez v. Evonir, LLC, 2014-1095, p. 5 (La. App. 4 Cir. 4/9/15), 165 So.
3d 260, 263. Additionally, we consider the factors enumerated in Herlitz Const.
Co., Inc. v. Hotel Invs. of New Iberia, Inc., 396 So. 2d 878 (La. 1981). “[T]he
primary consideration of Herlitz is that review and decision by us would terminate
the litigation.” Ramirez, 2014-1095, p. 5, 165 So. 3d at 263.
In the present matter, the motion for appeal was filed on June 6, 2023, within
the time limits for filing an application for supervisory writs, and consideration of
the Herlitz factors supports the conversion of the appeal to an application for
supervisory writs. Therefore, we exercise our discretion and convert the appeal to
an application for supervisory writs.
EXCEPTION OF PRESCRIPTION
On appeal, Smiley argues the trial court erred when it denied the exception
of prescription based upon La. C.C.P. art. 1153. The trial court agreed with Rieth
and Bush that the reconventional demand related back to the filing of their answer,
affirmative defenses and exceptions in 2016.
An exception of prescription is a peremptory exception that may be pleaded
at any stage of the proceeding in the trial court before the submission of the case
for a decision. La. C.C.P. arts. 927(A) and 928(B). The general rule is that
“prescription statutes are strictly construed against prescription and in favor of the
claim sought to be extinguished by it.” Norbert Simmons Irrevocable Trust v. Flag
Boy Properties, LLC, 2023-0211, p. 3 (La. App. 4 Cir. 9/27/23), 372 So.3d 953,
956 (quoting Bailey v. Khoury, 2004-0620, p. 9 (La. 1/20/05), 891 So.2d 1268, 4 1275 (citing Bouterie v. Crane, 616 So.2d 657, 660 (La.1993))). The party
pleading the exception of prescription bears the burden of proving the claim has
prescribed. Hogg v. Chevron USA, Inc., 2009-2632, p. 7 (La. 7/6/10), 45 So.3d
991, 998; Davas v. Saia, 2023-0090, p. 3 (La. App. 4 Cir. 10/6/23), 376 So.2d 288,
291. If prescription is evident on the face of the pleadings, then the burden shifts
to the plaintiff to show that prescription has been interrupted or suspended and that
the claim has not prescribed. Davas, 2023-0090, p. 3, 376 So.3d at 291 (citation
omitted). When evidence is introduced and evaluated at the trial of a peremptory
exception of prescription, the trial court's findings of fact are reviewed under the
manifest error standard of review. Lomont v. Bennett, 2014-2483, p. 8 (La.
6/30/15), 172 So.3d 620, 627; Alexander v. La. State Bd. of Private Investigator
Examiners, 2015-0537, p. 14 (La. App. 4 Cir. 2/17/17), 211 So.3d 544, 555.
La. C.C.P. article 1153 provides that “[w]hen the action or defense asserted
in the amended petition or answer arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of filing the original pleading.” In Giroir v.
South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040, 1041 (La.
1985), the Supreme Court held that La. C.C.P. art. 1153 allows for an amendment
adding a plaintiff to relate back when (1) the amended claim arises out of the
conduct, transaction, or occurrence set forth in the original pleading; (2) the
defendant knew or should have known of the existence and involvement of the new
plaintiff; (3) the new plaintiff is not wholly new or unrelated to the old plaintiff, as
that would amount to the assertion of a new claims that would otherwise be
prescribed; and (4) the defendant will not be prejudiced in preparing and
conducting his defense. 5 Where a sufficient factual nexus exists between the original and amended
pleadings technical prescriptive bars do not preclude raising the claims in the
amended pleading. Guillory v. City of New Orleans, 2016-0638, p. 5 (La. App. 4
Cir. 8/2/17), 224 So.3d 1035, 1039. “Where there is some factual connexity
between the original and amended assertions, together with some identity of
interest between the original and the supplemental party, amendment should be
allowed.” Id., p. 5, 224 So.3d at 1039 (quoting De Atley v. Victoria's Secret
Catalogue, LLC, 2004-0661, p. 5 (La. App. 4 Cir. 5/14/04), 876 So.2d 112, 116
(citing Gunter v. Plauche, 439 So.2d 437, 440 (La.1983) and Baker v. Payne and
Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980))).
This Court has recognized that “[w]here an original timely pleading provides
a party with actual notice that a formal claim is being made based on a particular
factual situation, permitting relation back of a post-prescriptive amendment based
on the same factual situation does not violate any essential purpose of a
prescriptive statute.” Watson v. Woldenberg Vill., Inc., 2016-0159, p. 12 (La. App.
4 Cir. 10/5/16), 203 So.3d 317, 325 (citing Baker v. Payne and Keller of
Louisiana, Inc., 390 So.2d 1272, 1275 (La.1980)).
RECONVENTIONAL DEMAND – ABUSE OF PROCESS
In the present matter, Smiley filed her petition on February 18, 2006.
Thereafter, Rieth and Bush filed an answer on August 1, 2006, which also included
affirmative defenses and exceptions to Smiley’s petition. On August 31, 2020,
Rieth and Bush filed a reconventional demand against Smiley, alleging several
causes of action including abuse of process. The cause of action of abuse of
process, a tort based cause of action, is subject to a one year libertive prescriptive
period which commences to run from the day injury or damage is sustained. La. 6 C.C. article 3492; Scott v. Zaheri, 2014-0726 (La. App. 4 Cir. 12/3/14), 157 So.3d
779. There are two essential elements of a cause of action for abuse of process: (1)
the existence of an ulterior purpose; and (2) a willful act in the use of the process
not in the regular prosecution of the proceeding. Guillory, 2016-0638, p. 10, 224
So.3d at 1042 (citing Hebert v. Louisiana Licensed Prof’l Vocational Rehab.
Counselors, 2007-610, p. 9 (La. App. 3 Cir. 3/4/09), 4 So.3d 1002, 1009).
Rieth and Bush rely upon Guillory in support of their argument that the
reconventional demand filed in 2020 relates back to their answer filed in 2016.
Rieth and Bush aver that they reserved all rights in their answer to file and present
all other defenses and/or reconventional demands to plaintiff’s claims that might in
the future arise as a result of discovery or during the trial in this case including, but
not limited to, those causes of action based on plaintiff’s failure to investigate her
claim and/or any claims available to defendants.
In Guillory, this Court found that the first supplemental and reconventional
demand in which the abuse of process was alleged related back to the original
reconventional demand because of the sufficient factual connexity between the
original and the amended assertions. Guillory, 2016-0638, p. 6, 224 So.3d at1039-
1040. However, Guillory is distinguishable because the prescribed abuse of
process and malicious prosecution claims were raised in the first supplemental
reconventional demand and were found to relate back to a timely filed original
reconventional demand. Id. Rieth and Bush’s answer filed in August 2016 did not
include any type of allegations which could have been considered a reconventional
demand. As such, their reliance on Guillory is misplaced.
Rieth and Bush contend that they did not know that Smiley had no
knowledge to support her claims when she filed petition for declaratory relief until 7 they obtained information during discovery. They argue that Smiley intentionally
delayed discovery. Rieth and Bush assert that they did not know until they
received information on January 7, 2020, that Smiley did not have any evidence to
support her claim that the servitude was extinguished due to non-use at the time
she filed her petition for declaratory relief. This argument is insufficient to defeat
the exception of prescription. Rieth and Bush would have had information about
the potential extinguishment of the servitude when they filed suit against Munguia
in 2015 to prevent her from placing a gate on the servitude. Having such
knowledge at that time, they would have known whether Smiley had evidence to
support her claims when she filed her declaratory judgment petition in 2016.
ABUSE OF PROCESS CLAIM IS NOT A CONTINUING TORT
Rieth and Bush also suggest that the abuse of process claim asserted in their
reconventional demand is not prescribed because it is a continuing tort. In Crump
v. Sabine River Authority, 98–2326, p. 10 (La. 6/29/99), 737 So.2d 720, 728, the
Supreme Court held that “[a] continuing tort is occasioned by [continual] unlawful
acts, not the continuation of the ill effects of an original, wrongful act.” The Court
stated “[t]he continuous conduct contemplated in a continuing tort must be tortious
and must be the operating cause of the injury.” Id., p. 11, 737 So.2d at 729 n. 7.
In determining whether a case involves a continuing tort, “[t]he inquiry is
essentially a conduct-based one, asking whether the tortfeasor perpetuates the
injury through overt, persistent, and ongoing acts.” FIE, LLC v. New Jax Condo
Ass'n, Inc., 2016-0843, pp. 27 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 393
(quoting Hogg v. Chevron USA, Inc. 2009–2632, 2009–2635, p. 16 (La. 7/6/10), 45
So.3d 991, 1003). Consequently, where the wrongful conduct of the tortfeasor
ceases, but the plaintiff continues to experience injury in the absence of any 8 ongoing wrongful acts by the tortfeasor, the courts have found no continuing tort.
FIE, LLC, 2016-0843, pp. 27-28, 241 So.3d at 393 (citing Hogg, 2009–2632,
2009–2635, p. 21, 45 So.3d at 1005). This Court declined to apply the continuing
tort doctrine to the plaintiff’s abuse of process claim in Alexander v. La. State Bd.
of Private Investigator Examiners, 2015-0537, p. 21 (La. App. 4 Cir. 2/17/17), 211
So.3d 544, 559, noting that the plaintiff’s claims arose from distinct, discontinuous
acts by the defendants.
The parties reference and discuss the Fifth Circuit’s decision in No Drama,
LLC v. Caluda, 15-211 (La. App. 5 Cir. 10/14/15), 177 So.3d 747. The defendant
in No Drama, Ms. Caluda, filed an exception of prescription as to the plaintiff's
abuse of process claim, asserting that the abuse of process claim was subject to a
one-year prescriptive period, commencing from the date of the allegedly improper
filing of suit against it. Ms. Caluda argued the plaintiff's abuse of process claim,
filed nearly seven years after the filing of the 2006 suit against it, was prescribed.
Id., 15-211, p. 5, 177 So.3d at 751. The abuse of process cause of action was
based upon the improper filing of a petition by Ms. Caluda against No Drama on
August 18, 2006. No Drama alleged that the trial court in the first suit lacked
jurisdiction to accept Ms. Caluda’s August 18, 2006 pleading because the
underlying matter at that time was pending on appeal. Id., p. 6, 177 So.3d at 752.
In opposition to the exception of prescription, No Drama argued that the
continuing tort doctrine applied to the abuse of process claim and prescription did
not commence to run until the dismissal of the first lawsuit on July 25, 2012. No
Drama contended that Ms. Caluda’s continuous failure to dismiss the underlying
lawsuit prior to its July 25, 2012 dismissal constituted a continuing tort,
suspending the commencement of the prescriptive period. Id. 9 The Fifth Circuit disagreed with No Drama’s argument and held that the
continuing tort doctrine did not apply, recognizing that under Crump “the theory of
continuing tort ... requires that the operating cause of the injury be a continuous
one which results in continuous damages.” Id., p. 7, 177 So.3d at 752 (quoting
Crump, 98–2326, p. 9, 737 So.2d at 726). The Court held that the abuse of
process claim, based on the alleged improper filing of the initial lawsuit, was not a
continuing tort. The Court concluded:
Although plaintiff alleges to have continuously sustained damages to its reputation and its finances until the dismissal of the underlying suit, the operating cause, the filing of the lawsuit, is not a continuous tort. Accordingly, we find that the filing of the August 18, 2006 pleading, naming plaintiff as a defendant in the underlying litigation, serves as the commencement of the one-year prescriptive period for plaintiff's abuse of process claim. Accordingly, we find the trial court did not err in finding that plaintiff's abuse of process claim, filed nearly seven years after the filing of suit against it, is prescribed.
Id., p. 7, 177 So.3d at 752.
RECONVENTIONAL DEMAND DOES NOT RELATE BACK
In the present matter, the trial court erred when it denied Smiley’s exception
of prescription. The relation back doctrine under La. C.C.P. article 1153 does not
allow Rieth and Bush’s reconventional demand to relate back to the date of the
filing of their answer on August 1, 2016. There is no jurisprudence to support
Rieth and Bush’s argument that the reconventional demand related back to the
answer. The answer, while it alleged affirmative defenses and exceptions, did not
clearly provide that it included a reconventional demand against Smiley. The
jurisprudence provides that La. C.C.P. article 1153 only applies to amending
petitions. The reconventional demand did not amend the answer, but asserted new
causes of action of acquisitive prescription and abuse of process. The
10 reconventional demand, filed on August 31, 2020, was lodged more than one year
from the date Ms. Smiley filed the petition.
Further, the continuing tort doctrine does not apply to extend the prescriptive
date of the filing of the reconventional demand. The act of filing the petition by
Smiley was a singular act; any damages that occurred may have been continuing,
but the allegedly tortious act occurred when the petition was filed.
Accordingly, Smiley’s appeal is converted to an application for supervisory
writ of review, the writ application is granted, the trial court’s judgment is
reversed, and the exception of prescription as to the cause of action for abuse of
process is sustained.
APPEAL CONVERTED TO WRIT. WRIT GRANTED AND JUDGEMENT REVERSED. EXCEPTION OF PRECRIPTION SUSTAINED.