Tucker v. Jerry Derbes, Inc.

720 So. 2d 370, 98 La.App. 4 Cir. 0265, 1998 La. App. LEXIS 2729, 1998 WL 678015

• Court: Louisiana Court of Appeal
• Decided: September 30, 1998
• Docket: No. 98-CA-0265
• Status: Published

Opinions

IzLANDRIEU, Judge.

Plaintiff, Andra Tucker, appeals a trial court judgment granting Jerry Derbes’s exception of prescription. We affirm.

Tucker sued Jerry Derbes, Inc., the alleged owner of Basin Lounge, and its liability insurer, First Financial Insurance Company,. for injuries she sustained when she fell in Basin Lounge on April 12, 1993. Tucker only served First Financial and, after trial, obtained a judgment only against First Financial.

First Financial appealed, and this court, in a non-published opinion, Tucker v. Jerry Derbes, Inc., 96-0911 (La.App. 4 Cir. 11/27/96, 684 So.2d 90), writ denied, 97-0128 (La.3/27/97), 692 So.2d 405, reversed the trial court. This court found that because Tucker had not introduced the First Financial insurance policy, she had not met her burden of proving coverage and liability. In the meantime, after First Financial appealed the judgment against it, but before this court issued its opinion, Tucker served Derbes with the petition on June 16,1996.

On December 2, 1996, Derbes filed a decli-natory exception of insufficiency of service of process which the trial court denied on July 14, 1997. Soon after, Derbes filed a motion to dismiss for failure to prosecute, an exception of res judicata, and/or an exception of prescription. The trial judge denied the motion to |3dismiss and the exception of prescription. Tucker appeals the judgment granting the exception and dismissing her claim against Derbes.

In this appeal, Tucker assigns error to the trial judge’s ruling that she failed to prosecute her claim against Derbes at trial and that La. Civ.Code art. 3463 requires the finding that her suit against Derbes has prescribed.

La. Civ.Code art. 3463 provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial.

The record shows that Tucker went to trial without ever serving Derbes with the petition, and hence, issue was never joined as to Derbes. Tucker obtained a judgment against First Financial alone and failed to reserve any rights against Derbes. Tucker, therefore, failed to prosecute suit against Derbes at trial.

The trial judge correctly applied article 3463 to the facts of this case to determine that Tucker’s claim against Derbes had prescribed. We affirm the judgment of the trial court granting Derbes’s exception of prescription.

AFFIRMED.

LOBRANO, J., concurs.