NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 23-75
SHAWN STRODER AND TRISHA STRODER
VERSUS
TOWN OF WELSH, WELSH POLICE DEPARTMENT, DAVID M. ARMINE, AND ATLANTIC SPECIALTY INSURANCE COMPANY
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, C-481-22 HONORABLE STEVE GUNNELL, DISTRICT JUDGE
LEDRICKA J. THIERRY JUDGE
Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry, Judges.
AFFIRMED. Steve M. Sikich The Sikich Law Firm 309 E. Sallier Street, Suite B P.O. Box 1432 Lake Charles, LA 70602 (337) 721-8008 COUNSEL FOR PLAINTIFFS/APPELLANTS Shawn Stroder and Trisha Stroder
Joy C. Rabalais H. Edward Barousse, III Jordan John Henagan Grant R. Schexnailder K. Elizabeth Heinen Borne, Wilkes & Rabalais, LLC 200 W. Congress Street, Suite 1000 Lafayette, LA 70501 (337) 232-1604 COUNSEL FOR DEFENDANTS/APPELLEES Town of Welsh and Officer David Amrine, Individually and in His Official Capacity as a Police Officer for the Town of Welsh THIERRY, Judge.
Plaintiffs, Shawn Stroder and Tricia Stroder, appeal the decision of the district
court finding their claims to be prescribed. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 23, 2020, Shawn Stroder was riding a bicycle in Welsh, Louisiana in
Jefferson Davis Parish, when he was struck by defendant, Officer David Amrine,
who was driving a 2019 Ford Explorer owned by the Town of Welsh. Mr. Stroder
alleges he was dragged approximately 180 feet, causing severe injuries to his back,
head, ears, mouth, and other areas of his body. At the time of the accident, Plaintiffs
allege that Officer David Amrine was an employee of the Town of Welsh and the
Welsh Police Department.
On May 18, 2021, Shawn Stroder and Tricia Stroder filed a petition for
damages in Calcasieu Parish against several Defendants: the Town of Welsh, the
Welsh Police Department, David M. Amrine (incorrectly spelled as “Armine” in the
petition), and Atlantic Specialty Insurance Company. The petition identifies Officer
Amrine’s domicile as Iowa, Louisiana, located in Calcasieu Parish. The Town of
Welsh and the Welsh Police Department are both located in Jefferson Davis Parish.
Atlantic Specialty Insurance Company is a foreign insurance company with its
registered agent located in Baton Rouge, Louisiana.
Defendants were not served until June of 2021, more than a year after the
incident occurred. Officer Amrine, the Town of Welsh, and the Welsh Police
Department were served on June 3, 2021. Atlantic Specialty Insurance Company
was served on June 7, 2021.
On July 7, 2021, Defendants filed an Exception of Improper Venue, asserting
that La.R.S. 13:5104(B) mandates that any suit against a political subdivision of the state or officer thereof within the course and scope of his employment be instituted
before the district court in which the political subdivision is located, or in the district
court having jurisdiction in the parish where the cause of action arises. Defendants
claimed that because the Town of Welsh is located in Jefferson Davis Parish, venue
was proper in Jefferson Davis Parish. Defendants similarly claimed that venue was
proper in Jefferson Davis Parish because Officer Amrine was in the course and scope
of his employment as an officer of a political subdivision (located in Welsh,
Jefferson Davis Parish).
On April 19, 2022, Plaintiffs filed a First Supplemental and Amending
Petition, adding a new paragraph alleging that Mr. Stroder sustained his damages in
Calcasieu Parish, as he was treated at Lake Charles Memorial Hospital located in
Calcasieu Parish and therefore incurred medical expenses (i.e., damages) in
Calcasieu Parish.
On May 20, 2022, Judge Ritchie of the Fourteenth Judicial District in
Calcasieu Parish granted Defendants’ Exception of Improper Venue and transferred
the matter to the Thirty-First Judicial District Court in Jefferson Davis Parish.
On September 19, 2022, the Welsh Police Department filed an exception of
lack of procedural capacity, asserting that it is not a juridical person and therefore
lacks the procedural capacity to be sued. On that same date, the Town of Welsh and
Officer David Amrine filed a peremptory exception of prescription, claiming that
the lawsuit was prescribed because Defendants were not served within the one-year
peremptory period. In support, Defendants cited La.Civ.Code art. 3462.
After a hearing on October 25, 2022, and in a judgment signed on December
5, 2022, Judge Gunnell granted Defendants’ peremptory exception of prescription,
Welsh Police Department’s exception of lack of procedural capacity, and
2 Defendants’ motion to strike jury and bifurcate trial. The only pleading objected to
by Plaintiffs was Defendants’ exception of prescription. It is the prescription ruling
which Plaintiffs now appeal, asserting that the district judge improperly granted
Defendants’ exception of prescription.
ANALYSIS
The standard of review of a judgment on a peremptory exception of
prescription depends on whether evidence was introduced at the hearing. Mitchell v.
Baton Rouge Orthopedic Clinic, LLC, 21-61 (La. 12/10/21), 333 So.3d 368. If no
evidence is introduced, then the exception is decided upon the facts alleged in the
petition, with all allegations in the petition accepted as true. Id. The reviewing court
assesses whether the trial court was legally correct in its ruling. When evidence is
introduced at the hearing, the trial court’s decision is reviewed under the manifest
error standard of review. The exception to this is when there is no dispute regarding
the material facts. In such a case, the reviewing court applies the de novo standard
of review. Id.
In this case, evidence was introduced at the hearing on the exception of
prescription. However, there is no dispute regarding the material facts; namely, that
the accident occurred on May 23, 2020, Plaintiffs filed their petition for damages on
May 18, 2021, and Defendants were served on June 3, 2021 and June 7, 2021.
Therefore, the de novo standard of review applies.
Louisiana Civil Code Article 3492 provides that “[d]elictual actions are
subject to a liberative prescription of one year,” commencing on the date when the
injury occurs or damage is sustained. In this case, the injury and damage occurred
on May 23, 2020, and thus the prescriptive period is one year from that date.
3 Plaintiffs filed their petition for damages within the prescriptive period, on May 18,
2021. It is undisputed that Plaintiffs timely filed the suit in Calcasieu Parish.
However, the issue is whether Plaintiffs timely filed their suit in Jefferson
Davis Parish. When an action is filed in an improper venue and subsequently
transferred, prescription is only interrupted if the defendants were served within the
prescriptive period. Louisiana Civil Code Article 3462 states (emphasis added):
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.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 23-75
SHAWN STRODER AND TRISHA STRODER
VERSUS
TOWN OF WELSH, WELSH POLICE DEPARTMENT, DAVID M. ARMINE, AND ATLANTIC SPECIALTY INSURANCE COMPANY
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, C-481-22 HONORABLE STEVE GUNNELL, DISTRICT JUDGE
LEDRICKA J. THIERRY JUDGE
Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry, Judges.
AFFIRMED. Steve M. Sikich The Sikich Law Firm 309 E. Sallier Street, Suite B P.O. Box 1432 Lake Charles, LA 70602 (337) 721-8008 COUNSEL FOR PLAINTIFFS/APPELLANTS Shawn Stroder and Trisha Stroder
Joy C. Rabalais H. Edward Barousse, III Jordan John Henagan Grant R. Schexnailder K. Elizabeth Heinen Borne, Wilkes & Rabalais, LLC 200 W. Congress Street, Suite 1000 Lafayette, LA 70501 (337) 232-1604 COUNSEL FOR DEFENDANTS/APPELLEES Town of Welsh and Officer David Amrine, Individually and in His Official Capacity as a Police Officer for the Town of Welsh THIERRY, Judge.
Plaintiffs, Shawn Stroder and Tricia Stroder, appeal the decision of the district
court finding their claims to be prescribed. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 23, 2020, Shawn Stroder was riding a bicycle in Welsh, Louisiana in
Jefferson Davis Parish, when he was struck by defendant, Officer David Amrine,
who was driving a 2019 Ford Explorer owned by the Town of Welsh. Mr. Stroder
alleges he was dragged approximately 180 feet, causing severe injuries to his back,
head, ears, mouth, and other areas of his body. At the time of the accident, Plaintiffs
allege that Officer David Amrine was an employee of the Town of Welsh and the
Welsh Police Department.
On May 18, 2021, Shawn Stroder and Tricia Stroder filed a petition for
damages in Calcasieu Parish against several Defendants: the Town of Welsh, the
Welsh Police Department, David M. Amrine (incorrectly spelled as “Armine” in the
petition), and Atlantic Specialty Insurance Company. The petition identifies Officer
Amrine’s domicile as Iowa, Louisiana, located in Calcasieu Parish. The Town of
Welsh and the Welsh Police Department are both located in Jefferson Davis Parish.
Atlantic Specialty Insurance Company is a foreign insurance company with its
registered agent located in Baton Rouge, Louisiana.
Defendants were not served until June of 2021, more than a year after the
incident occurred. Officer Amrine, the Town of Welsh, and the Welsh Police
Department were served on June 3, 2021. Atlantic Specialty Insurance Company
was served on June 7, 2021.
On July 7, 2021, Defendants filed an Exception of Improper Venue, asserting
that La.R.S. 13:5104(B) mandates that any suit against a political subdivision of the state or officer thereof within the course and scope of his employment be instituted
before the district court in which the political subdivision is located, or in the district
court having jurisdiction in the parish where the cause of action arises. Defendants
claimed that because the Town of Welsh is located in Jefferson Davis Parish, venue
was proper in Jefferson Davis Parish. Defendants similarly claimed that venue was
proper in Jefferson Davis Parish because Officer Amrine was in the course and scope
of his employment as an officer of a political subdivision (located in Welsh,
Jefferson Davis Parish).
On April 19, 2022, Plaintiffs filed a First Supplemental and Amending
Petition, adding a new paragraph alleging that Mr. Stroder sustained his damages in
Calcasieu Parish, as he was treated at Lake Charles Memorial Hospital located in
Calcasieu Parish and therefore incurred medical expenses (i.e., damages) in
Calcasieu Parish.
On May 20, 2022, Judge Ritchie of the Fourteenth Judicial District in
Calcasieu Parish granted Defendants’ Exception of Improper Venue and transferred
the matter to the Thirty-First Judicial District Court in Jefferson Davis Parish.
On September 19, 2022, the Welsh Police Department filed an exception of
lack of procedural capacity, asserting that it is not a juridical person and therefore
lacks the procedural capacity to be sued. On that same date, the Town of Welsh and
Officer David Amrine filed a peremptory exception of prescription, claiming that
the lawsuit was prescribed because Defendants were not served within the one-year
peremptory period. In support, Defendants cited La.Civ.Code art. 3462.
After a hearing on October 25, 2022, and in a judgment signed on December
5, 2022, Judge Gunnell granted Defendants’ peremptory exception of prescription,
Welsh Police Department’s exception of lack of procedural capacity, and
2 Defendants’ motion to strike jury and bifurcate trial. The only pleading objected to
by Plaintiffs was Defendants’ exception of prescription. It is the prescription ruling
which Plaintiffs now appeal, asserting that the district judge improperly granted
Defendants’ exception of prescription.
ANALYSIS
The standard of review of a judgment on a peremptory exception of
prescription depends on whether evidence was introduced at the hearing. Mitchell v.
Baton Rouge Orthopedic Clinic, LLC, 21-61 (La. 12/10/21), 333 So.3d 368. If no
evidence is introduced, then the exception is decided upon the facts alleged in the
petition, with all allegations in the petition accepted as true. Id. The reviewing court
assesses whether the trial court was legally correct in its ruling. When evidence is
introduced at the hearing, the trial court’s decision is reviewed under the manifest
error standard of review. The exception to this is when there is no dispute regarding
the material facts. In such a case, the reviewing court applies the de novo standard
of review. Id.
In this case, evidence was introduced at the hearing on the exception of
prescription. However, there is no dispute regarding the material facts; namely, that
the accident occurred on May 23, 2020, Plaintiffs filed their petition for damages on
May 18, 2021, and Defendants were served on June 3, 2021 and June 7, 2021.
Therefore, the de novo standard of review applies.
Louisiana Civil Code Article 3492 provides that “[d]elictual actions are
subject to a liberative prescription of one year,” commencing on the date when the
injury occurs or damage is sustained. In this case, the injury and damage occurred
on May 23, 2020, and thus the prescriptive period is one year from that date.
3 Plaintiffs filed their petition for damages within the prescriptive period, on May 18,
2021. It is undisputed that Plaintiffs timely filed the suit in Calcasieu Parish.
However, the issue is whether Plaintiffs timely filed their suit in Jefferson
Davis Parish. When an action is filed in an improper venue and subsequently
transferred, prescription is only interrupted if the defendants were served within the
prescriptive period. Louisiana Civil Code Article 3462 states (emphasis added):
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.
See also Titus v. IHOP Rest., Inc., 09-951 (La. 12/1/09), 25 So.3d 761.
In this case, Plaintiffs originally filed their petition for damages in Calcasieu
Parish, which was transferred to Jefferson Davis Parish upon the granting of an
exception of improper venue filed by Defendants.1 Defendants were not served until
June 3, 2021 and June 7, 2021, several days beyond the one-year prescriptive period.
Therefore, under the unambiguous language of La.Civ.Code art. 3462, prescription
was not interrupted.
Plaintiffs argue that the fact that Defendants were not served within the one-
year prescriptive period is immaterial, because Defendants were on notice of the
accident well before they were served. This is contrary to both the plain language of
the article and the subsequent jurisprudence on this article. Actual knowledge of a
lawsuit is irrelevant for purposes of the statute; it is service that is key. The Louisiana
fifth circuit recently reiterated this longstanding rule in a 2022 decision:
1 Both parties set forth arguments relating to venue in their brief. However, the venue ruling was not appealed, and therefore this court’s ruling is limited to the issue on appeal: the district court’s granting of Defendants’ exception of prescription.
4 “Where service of process is the legal act which interrupts the running of prescription it is essential that the defendant be served. This is the only type of notice permitted or recognized. Knowledge obtained through any other source will not constitute a legal interruption.” [Conner v. Cont’l S. Lines, Inc., 294 So.2d 485, 487 (La. 1974).] Actual service of citation is necessary to interrupt prescription when the suit is filed in a court which does not have jurisdiction of the action. Hidalgo v. Dupuy, 122 So.2d 639, 643 (La.App. 1st Cir. 1960).
Matos v. White, 21-313, p. 6 (La.App. 5 Cir. 2/23/22), 336 So.3d 594, 599.
Therefore, since Defendants in this action were not served within the
applicable one-year prescriptive period, prescription was not interrupted. By the time
this case was transferred to the proper venue in Jefferson Davis Parish, the case was
prescribed. The district court correctly granted Defendants’ exception of
prescription.
DECREE
For the foregoing reasons, the judgment of the district court is affirmed. All
costs of this appeal are assessed against appellants, Shawn Stroder and Trisha
Stroder.
AFFIRMED.