RANDY PETTY NO. 23-CA-408
VERSUS FIFTH CIRCUIT
KAC PROPERTIES LLC, KEITH COURT OF APPEAL COUVILLIAN, AND XYZ INSURANCE COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 832-873, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
March 27, 2024
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel
REVERSED AND REMANDED SUS FHW SJW COUNSEL FOR PLAINTIFF/APPELLANT, RANDY PETTY Robert A. Pearson
COUNSEL FOR DEFENDANT/APPELLEE, KAC PROPERTIES LLC AND KEITH COUVILLIAN Michael D. Cangelosi Kate C. Casanova SCHLEGEL, J.
In this case for recovery of property damages, plaintiff/appellant, Randy
Petty, appeals the trial court’s April 27, 2023 judgment, which granted the
exception of prescription filed by defendants/appellees, KAC Properties, LLC and
Keith Couvillion, and dismissed plaintiff’s claims with prejudice. For the
following reasons, we reverse the trial court’s judgment and remand for further
proceedings.
Facts and Procedural History
On September 13, 2022, Mr. Petty filed a petition for damages asserting that
KAC Properties or Mr. Couvillion owned property next to Mr. Petty, which had a
large tree that had been neglected and was in terrible condition. The petition
alleged that on or about August 29, 2021, Hurricane Ida made landfall in Jefferson
Parish, Louisiana, and that Mr. Petty evacuated as a result of the recommendations
of state officials. The petition further alleged that on September 17, 2021, Mr.
Petty was able to return to inspect his property, where he found that the tree had
fallen on his property causing damage to the house and fence.
On November 29, 2022, defendants filed an exception of prescription
asserting that the one-year prescriptive period for torts applied, and that Mr. Petty
should have filed his petition by August 29, 2022, within one year of Hurricane Ida
hitting landfall. Defendants asserted that plaintiff’s claims were prescribed on the
face of the petition.
In response, Mr. Petty argued that he and his family evacuated from the
storm from their primary residence in Baton Rouge, and did not get back to the
property until September 17, 2021. He argued that under La. C.C. art. 3493, the
prescriptive period for damages to immovable property is one year, which runs
from the date damages were sustained or from the date the owner of the damaged
property acquired, or should have acquired, knowledge of the damage. He further
23-CA-408 1 argued that the prescriptive date of La. C.C. art. 3493 is triggered by actual or
constructive knowledge of the damage, which in this case would have been
September 17, 2021 when he returned home, resulting in a prescription date of one
year after his return to the property on September 17, 2022. Thus, Mr. Petty
asserts his petition filed on September 13, 2022 was timely filed.
Following a hearing, the district court entered judgment granting defendants’
exception of prescription on the grounds that Mr. Petty had constructive
knowledge of the alleged damage caused by Hurricane Ida on August 29, 2021.
This timely appeal followed.
Law and Analysis
An exception of prescription is a type of peremptory exception. The function
of the peremptory exception is to have the plaintiff’s action declared legally
nonexistent, or barred by the effect of law, and hence this exception tends to
dismiss or defeat the action. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619
(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262. Ordinarily, the exceptor bears
the burden of proof at the trial of the peremptory exception, including prescription.
However, if prescription is evident on the face of the pleadings, the burden shifts to
the plaintiff to show that the action has not prescribed. When a cause of action is
prescribed on its face, the burden is upon the plaintiff to show that the running of
prescription was suspended or interrupted in some manner. Id., citing Woods v.
Cousins, 12-100 (La. App. 5 Cir. 10/16/12), 102 So.3d 977, 979, writ denied, 12-
2452 (La. 1/11/13), 107 So.3d 617. Prescriptive statutes are strictly construed
against prescription and in favor of the obligation sought to be enforced. Burke v.
Cohen, 19-544 (La. App. 5 Cir. 5/28/20), 296 So.3d 1231, 1236.
At the trial of a peremptory exception of prescription, “evidence may be
introduced to support or controvert any of the objections pleaded, when the
grounds thereof do not appear from the petition.” Ruffins, 341 So.3d at 1262,
23-CA-408 2 citing Woods, 102 So.3d at 978. In the absence of evidence, the exception of
prescription must be decided on the facts alleged in the petition, which are
accepted as true. Ruffins, 341 So.3d at 1262. But the latter principle applies only
to properly-pleaded material allegations of fact, as opposed to allegations deficient
in material detail, conclusory factual allegations, or allegations of law. Id.
The standard of review of a trial court’s ruling on a peremptory exception of
prescription turns on whether evidence is introduced. Id. When no evidence is
introduced, appellate courts review judgments sustaining an exception of
prescription de novo, accepting the facts alleged in the petition as true. Id. at 1263.
However, when evidence is introduced at a hearing on an exception of
prescription, the trial court’s findings of fact are reviewed under the manifest error
standard. Id.
Louisiana law establishes that delictual actions are subject to a liberative
prescription of one year, which commences to run from the day injury or damage is
sustained. La. C.C. art. 3492. In addition, La. C.C. art. 3493 provides: “When
damage is caused to immovable property, the one year prescription commences to
run from the day the owner of the immovable acquired, or should have acquired,
knowledge of the damage.”
No evidence was introduced at the trial court hearing. Thus, the court
reviews the trial court’s judgment de novo, and accepts the facts alleged in the
petition as true.
Mr. Petty argues that the trial court committed manifest error in failing to
find that prescription was suspended under the doctrine of contra non valentem
because it is uncontroverted that Mr. Petty did not discover the damage to his
property until September 17, 2021, and thus his claim was timely when it was filed
on September 13, 2022. Plaintiff further contends that it is erroneous to assess an
23-CA-408 3 August 29, 2022 prescription date, on the premise that he should have known that
damage occurred on that date due to his knowledge of a hurricane making landfall.
In this case, although the petition references Hurricane Ida making landfall
on or about August 29, 2021, the petition does not actually allege a specific date
when the tree fell and damaged his property. And the defendants did not introduce
evidence as to when the damage occurred. Furthermore, plaintiff alleged in his
petition that the fallen tree was already in decay and likely to fall at any time.
Because prescription is not evident on the face of the pleadings, the burden
did not shift from defendants to plaintiff to show that the action had not prescribed.
And the court cannot infer that Mr. Petty had constructive knowledge of an August
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RANDY PETTY NO. 23-CA-408
VERSUS FIFTH CIRCUIT
KAC PROPERTIES LLC, KEITH COURT OF APPEAL COUVILLIAN, AND XYZ INSURANCE COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 832-873, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
March 27, 2024
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel
REVERSED AND REMANDED SUS FHW SJW COUNSEL FOR PLAINTIFF/APPELLANT, RANDY PETTY Robert A. Pearson
COUNSEL FOR DEFENDANT/APPELLEE, KAC PROPERTIES LLC AND KEITH COUVILLIAN Michael D. Cangelosi Kate C. Casanova SCHLEGEL, J.
In this case for recovery of property damages, plaintiff/appellant, Randy
Petty, appeals the trial court’s April 27, 2023 judgment, which granted the
exception of prescription filed by defendants/appellees, KAC Properties, LLC and
Keith Couvillion, and dismissed plaintiff’s claims with prejudice. For the
following reasons, we reverse the trial court’s judgment and remand for further
proceedings.
Facts and Procedural History
On September 13, 2022, Mr. Petty filed a petition for damages asserting that
KAC Properties or Mr. Couvillion owned property next to Mr. Petty, which had a
large tree that had been neglected and was in terrible condition. The petition
alleged that on or about August 29, 2021, Hurricane Ida made landfall in Jefferson
Parish, Louisiana, and that Mr. Petty evacuated as a result of the recommendations
of state officials. The petition further alleged that on September 17, 2021, Mr.
Petty was able to return to inspect his property, where he found that the tree had
fallen on his property causing damage to the house and fence.
On November 29, 2022, defendants filed an exception of prescription
asserting that the one-year prescriptive period for torts applied, and that Mr. Petty
should have filed his petition by August 29, 2022, within one year of Hurricane Ida
hitting landfall. Defendants asserted that plaintiff’s claims were prescribed on the
face of the petition.
In response, Mr. Petty argued that he and his family evacuated from the
storm from their primary residence in Baton Rouge, and did not get back to the
property until September 17, 2021. He argued that under La. C.C. art. 3493, the
prescriptive period for damages to immovable property is one year, which runs
from the date damages were sustained or from the date the owner of the damaged
property acquired, or should have acquired, knowledge of the damage. He further
23-CA-408 1 argued that the prescriptive date of La. C.C. art. 3493 is triggered by actual or
constructive knowledge of the damage, which in this case would have been
September 17, 2021 when he returned home, resulting in a prescription date of one
year after his return to the property on September 17, 2022. Thus, Mr. Petty
asserts his petition filed on September 13, 2022 was timely filed.
Following a hearing, the district court entered judgment granting defendants’
exception of prescription on the grounds that Mr. Petty had constructive
knowledge of the alleged damage caused by Hurricane Ida on August 29, 2021.
This timely appeal followed.
Law and Analysis
An exception of prescription is a type of peremptory exception. The function
of the peremptory exception is to have the plaintiff’s action declared legally
nonexistent, or barred by the effect of law, and hence this exception tends to
dismiss or defeat the action. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619
(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262. Ordinarily, the exceptor bears
the burden of proof at the trial of the peremptory exception, including prescription.
However, if prescription is evident on the face of the pleadings, the burden shifts to
the plaintiff to show that the action has not prescribed. When a cause of action is
prescribed on its face, the burden is upon the plaintiff to show that the running of
prescription was suspended or interrupted in some manner. Id., citing Woods v.
Cousins, 12-100 (La. App. 5 Cir. 10/16/12), 102 So.3d 977, 979, writ denied, 12-
2452 (La. 1/11/13), 107 So.3d 617. Prescriptive statutes are strictly construed
against prescription and in favor of the obligation sought to be enforced. Burke v.
Cohen, 19-544 (La. App. 5 Cir. 5/28/20), 296 So.3d 1231, 1236.
At the trial of a peremptory exception of prescription, “evidence may be
introduced to support or controvert any of the objections pleaded, when the
grounds thereof do not appear from the petition.” Ruffins, 341 So.3d at 1262,
23-CA-408 2 citing Woods, 102 So.3d at 978. In the absence of evidence, the exception of
prescription must be decided on the facts alleged in the petition, which are
accepted as true. Ruffins, 341 So.3d at 1262. But the latter principle applies only
to properly-pleaded material allegations of fact, as opposed to allegations deficient
in material detail, conclusory factual allegations, or allegations of law. Id.
The standard of review of a trial court’s ruling on a peremptory exception of
prescription turns on whether evidence is introduced. Id. When no evidence is
introduced, appellate courts review judgments sustaining an exception of
prescription de novo, accepting the facts alleged in the petition as true. Id. at 1263.
However, when evidence is introduced at a hearing on an exception of
prescription, the trial court’s findings of fact are reviewed under the manifest error
standard. Id.
Louisiana law establishes that delictual actions are subject to a liberative
prescription of one year, which commences to run from the day injury or damage is
sustained. La. C.C. art. 3492. In addition, La. C.C. art. 3493 provides: “When
damage is caused to immovable property, the one year prescription commences to
run from the day the owner of the immovable acquired, or should have acquired,
knowledge of the damage.”
No evidence was introduced at the trial court hearing. Thus, the court
reviews the trial court’s judgment de novo, and accepts the facts alleged in the
petition as true.
Mr. Petty argues that the trial court committed manifest error in failing to
find that prescription was suspended under the doctrine of contra non valentem
because it is uncontroverted that Mr. Petty did not discover the damage to his
property until September 17, 2021, and thus his claim was timely when it was filed
on September 13, 2022. Plaintiff further contends that it is erroneous to assess an
23-CA-408 3 August 29, 2022 prescription date, on the premise that he should have known that
damage occurred on that date due to his knowledge of a hurricane making landfall.
In this case, although the petition references Hurricane Ida making landfall
on or about August 29, 2021, the petition does not actually allege a specific date
when the tree fell and damaged his property. And the defendants did not introduce
evidence as to when the damage occurred. Furthermore, plaintiff alleged in his
petition that the fallen tree was already in decay and likely to fall at any time.
Because prescription is not evident on the face of the pleadings, the burden
did not shift from defendants to plaintiff to show that the action had not prescribed.
And the court cannot infer that Mr. Petty had constructive knowledge of an August
29, 2022 prescription date based solely upon the fact that a hurricane made landfall
on that date. Considering that prescription statutes are to be strictly construed
against prescription, we find that the trial court erred in granting defendants’
exception of prescription. It is uncontroverted that Mr. Petty discovered the
damage to his property on September 17, 2021
Accordingly, the judgment of the trial court sustaining defendants’ exception
of prescription is reversed, and the case is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
23-CA-408 4 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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 MARCH 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-408 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) KATE C. CASANOVA (APPELLEE) MICHAEL D. CANGELOSI (APPELLEE)
MAILED JOELANN S. ROUSELL (APPELLANT) ROBERT A. PEARSON (APPELLANT) ATTORNEY AT LAW ATTORNEY AT LAW 1799 STUMPF BOULEVARD 4480 GENERAL DEGAULLE DRIVE BUILDING 6-1 NEW ORLEANS, LA 70131 GRETNA, LA 70056