Wendy Champagne v. Buddy Billeaud

• Court: Louisiana Court of Appeal
• Decided: April 26, 2023
• Docket: CA-0022-0679
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

22-679

WENDY CHAMPAGNE

VERSUS

BUDDY BILLEAUD, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, 2017-5915 HONORABLE ROYALE L. COLBERT, DISTRICT JUDGE

CHARLES G. FITZGERALD JUDGE

Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Charles G. Fitzgerald, Judges.

AFFIRMED. Wendy Champagne 405-1 Fox Run Avenue Lafayette, Louisiana 70508 Appellant, In Proper Person

Joseph H. Garbarino 3900 North Causeway Boulevard, Suite 1247 Metairie, Louisiana 70002 (504) 836-2785 Counsel for Appellee: Jed Thomas Dejean FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in sustaining Jed Thomas

Dejean’s exception of prescription.

On October 14, 2016, Wendy Champagne was injured when a railing broke

at her rental home causing her to fall from a balcony. Nearly one year later, on

October 12, 2017, Wendy filed a petition for damages against Buddy Billeaud,

Billeaud Capital Management, and Garden Properties LLC.

Six months later, in April 2018, Wendy amended her petition by adding a few

more defendants, including Jed Thomas Dejean. Many years after that, Jed filed the

peremptory exception of prescription. Ultimately, on August 1, 2022, the trial court

signed a judgment in open court sustaining Jed’s exception. This appeal by Wendy

followed.

For the reasons below, we affirm the trial court’s judgment.1

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

1 The trial court’s August 1, 2022 judgment also sustained Jed’s exception of res judicata, and that portion of the judgment is also before us on appeal. However, because of our disposition on prescription, we pretermit any discussion of res judicata.

1 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, 830. “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

Jed’s exception of prescription. Therefore, 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 in Wendy’s petitions, and the alleged facts will be

accepted as true.

The prescription statute at issue in this case is La.Civ.Code art. 3492, which

provides a one-year prescriptive period for delictual actions, and prescription

commences to run from the date of injury.

Wendy’s original petition alleges that her injuries were sustained on October

14, 2016. While her original petition was timely filed on October 12, 2017, her

amended petition was filed on April 30, 2018, nearly nineteen months after the

accident. Thus, on the face of the amended petition, Wendy’s suit against Jed was

filed more than one year after the accident, meaning that Wendy bears the burden of

proving that her action has not prescribed.

To this end, Wendy argues on appeal that “Jed Thomas Dejean is a named

defendant in the suit herein. The record reflects no dismissal of Defendant and

therefore prescription was interrupted.” We disagree. Standing alone, the above

facts do not operate to interrupt prescription as to Wendy’s claims against Jed.

Admittedly, the outcome would be different if there was legal solidarity between Jed

and the original defendants. See La.Civ.Code art. 1799 (“The interruption of

2 prescription against one solidary obligor is effective against all solidary obligors and

their heirs.”). But Wendy has not made this argument. And more importantly,

Wendy’s amended petition fails to allege any facts to support the conclusion that Jed

and the original defendants are solidary obligors.

Wendy next argues that the conveyance instruments for the subject property

were inaccurate and thus prejudiced her. While it appears that Wendy is alluding to

contra non valentem, her argument is beyond the scope of our review for two

reasons. First, Wendy did not introduce any evidence in support of this argument at

the hearing on the exception. And second, her amended petition does not allege any

of these facts.

In the end, Wendy’s suit against Jed is prescribed on its face, and Wendy has

failed to prove otherwise. The trial court correctly sustained Jed’s peremptory

exception of prescription.

DISPOSITION

For the above reasons, the judgment of the trial court dismissing the claims of

Wendy Champagne against Jed Thomas Dejean with prejudice is affirmed. All costs

of this appeal are assessed to Wendy Champagne.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.