Troy Templett v. State of Louisiana through Louisiana Department of Public Safety and Corrections Louisiana State Penitentiary

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 CA 0037

TROY TEMPLET

VERSUS

STATE OF LOUISIANA
THROUGH DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
LOUISIANA STATE PENITENTIARY; AND SERGEANT JESSIE LOFTON

Decision Rendered.. ' NOV 1 5 2099

APPEALED FROM THE
20TH JUDICIAL DISTRICT COURT
WEST FELICIANIA PARISH, LOUISIANA
DOCKET NUMBER 22, 719, DIVISION B

HONORABLE WILLIAM G. CARMICHAEL, JUDGE

Donna U. Grodner Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana Troy Templet

Jeff Landry Attorneys for Defendant/ Appellee
Attorney General State of Louisiana, Department of
and Public Safety and Corrections
Christopher N. Walters
Assistant Attorney General
Baton Rouge, Louisiana

BEFORE: WHIPPLE, C. J., McDONALD, and CRAIN, JJ.

McDONALD, J.

A former inmate filed a tort suit against the State of Louisiana, Department of

Public Safety and Corrections ( DPSC), for injuries he sustained while in prison. DPSC

filed a peremptory exception claiming the former inmate' s claims were prescribed. The

district court granted the exception and dismissed the suit. The former inmate appeals

from the adverse judgment. We affirm in part, reverse in part, and remand this matter

to the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 2013, Troy Templet,' an inmate housed at the Louisiana State

Penitentiary in Angola, Louisiana, was a member of a crew working on a ferry landing

located on prison property. It was raining that day. While the crew was unloading

angle iron from a trailer, a piece of the iron struck Mr. Templet, knocking him from the

ferry landing into the Mississippi River below. Mr. Templet received a blow to his head

and lost consciousness. He was retrieved from the river and received medical

treatment for his injuries, which included head, leg, back, and eye injuries.

Mr. Templet was apparently released from prison in January 2014. On July 5,

2016, Mr. Templet filed this tort suit against DPSC in the 20th Judicial District Court; he

later amended his petition to add Sgt. Jessie Lofton, the prison official supervising the

work crew at the time of the accident, but Sgt. Lofton is not a party to this appeal. In

his petition, Mr. Templet essentially alleged that Sgt. Lofton ordered the work crew to

work in unsafe, rainy conditions on the -ferry landing, and that DPSC was vicariously

liable for his actions; he also claimed DPSC breached its duty to provide a safe

workplace when it was foreseeable that an inmate working in the rain with heavy

equipment would be injured. Alternatively, Mr. Templet claimed he was repeatedly

denied appropriate medical treatment after the accident.

DPSC ultimately filed a prescription exception, claiming Mr. Templet's tort suit

was untimely. According to DPSC, Mr. Templet was injured on November 26, 2013; he

filed an administrative remedy procedure ( ARP) on December 3, 2013, which

1 Although the petition' s caption states the plaintiff's surname is spelled " Templett," documents in the
record bearing his signature show the correct spelling is " Templet."
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suspended the running of prescription on his tort claim; the administrative process was

completed" on July 28, 2014, and prescription again began to run; Mr. Templet had

until July 22, 2015 to file his suit; he did not file his suit until July 5, 2016; hence, his

suit was prescribed. DPSC filed no evidence documenting any of the dates referenced

in its exception. Mr. Templet apparently filed an opposition to DPSC' s exception, but

such is not in the appellate record. He then filed a " Motion to Supplement," requesting

that the court allow him to supplement his opposition with his own affidavit, to which

two exhibits were attached: his handwritten ARP dated November 27, 2013, and an

unsigned, undated copy of DPSC's purported " First Step Response Form" denying his

ARP. The district court signed an order, and Mr. Templet filed the affidavit and

attachments into the record.

In due course, the district court held a hearing on DPSC' s prescription exception.

Neither party introduced evidence at the hearing nor presented argument supporting

their respective positions; the district court orally granted DPSC' s prescription exception

from the bench without explaining the basis for its ruling. On November 19, 2018, the

district court signed a judgment, granting DPSC' s exception and dismissing Mr.

Templet's suit with prejudice.

Mr. Templet appeals from the adverse judgment, contending the district court

erred in dismissing his suit as prescribed. He argues that his affidavit shows that he

timely filed his ARP while in prison, he was released from prison on January 10, 2014,

and DPSC did not contact him any time after his release. He contends there is no

evidence that DPSC delivered its purported July 28, 2014 denial of his ARP to him, and

as such, prescription on his personal injury claim was suspended when he filed suit.

APPLICABLE LAW

The Louisiana Corrections Administrative Remedy Procedure Act ( CARP), La. R. S.

15: 1171- 1179, allows DPSC to adopt administrative remedy procedures to address

complaints by an offender against DPSC that arise while an offender is in DPSC's

custody. See La. R. S. 15: 1171A and B. All complaints, including traditional tort claims

seeking monetary relief, are subject to administrative procedures. See La. R. S.

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15: 11726. An offender shall initiate his administrative remedies for a delictual ( tort)

action for injury within 90 days from the day the injury is sustained. See La. R. S.

15: 11726( 1). Subsequent release from custody does not excuse an offender from

exhausting the applicable administrative procedure. See La. R. S. 15: 1171D and

1174( 2). The filing of an ARP for any delictual action suspends the tolling of liberative

prescription from the date the ARP is filed until the final DPSC decision is delivered. See

La. R. S. 15: 1172E.

Ordinarily, the party urging prescription bears the burden of proving such at the

trial of the exception; however, if the petition is prescribed on its face, the burden shifts

to the plaintiff to show his action is not prescribed. Quinn v. Louisiana Citizens Properly

Insurance Corp., 12- 0152 ( La. 11/ 2/ 12), 118 So. 3d 1011, 1017. When the plaintiff is

contending there is a suspension of prescription, he then has the burden of proving the

suspension. Shannon v. Vannoy, 17- 1722 ( La. App. 1 Cir. 6/ 1/ 18), 251 So. 3d 442, 448.

Thus, under La. R. S. 15: 1172E, Mr. Templet had the burden of proving the dates during

which prescription of his suit was suspended.

Appellate review applicable to a prescription exception depends on the manner in

which the exception is heard. Shannon, 251 So. 3d at 448. Evidence may be

introduced to support or controvert the exception of prescription when the grounds

thereof do not appear from the petition. La. C. C. P. art. 931. In the absence of

evidence, the exception must be decided on the facts alleged in the petition, which are

accepted as true. Accord Quinn, 118 So. 3d at 1017; Shannon, 251 So. 3d at 448- 49. In

this case, neither DPSC nor Mr. Templet introduced evidence at the exception hearing.

For the following reasons, our review is limited to the facts alleged in Mr. Templet's

petition.

At the hearing on the prescription exception, the district court specifically asked

the parties' counsel if they had anything to add " other than what's in the record?," and

both answered ' ono." This exchange may have misled the parties to the assumption

that the trial court would decide the exception on evidence that had been filed into the

record — that is, Mr. Templet's affidavit and attachments. Under well- settled Louisiana

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law, however, such procedure is not allowed. A hearing or a " trial" of an exception of

prescription is just that: a trial at which competent, relevant evidence should be

presented for the district court's consideration. See La. C. C. P. arts. 929- 931; Kirby v.

Field, 04- 1898 ( La. App. 1 Cir. 9/ 23/ 05), 923 So. 2d 131, 137 n. 8; also see Burnett v.

Lee, 18- 0319 ( La. App. 1 Cir. 7/ 17/ 18),, 2018 WL 3455994. A sworn affidavit is hearsay

and is not competent evidence unless its use is specifically authorized by statute.

Michael F. Smith, CPA v. Alford, 04-0586 ( La. App. 1 Cir. 3/ 24/ 05), 906 So. 2d 674, 676.

If hearsay affidavits are admitted into evidence without objection, they may properly be

considered part of the record in an appeal from a judgment granting a prescription

exception. See Green v. Regions Bank, 13- 0771 ( La. App. 1 Cir. 3/ 19/ 14), 2014 WL

3555820 * 1 n. 5; Kirby, 923 So. 2d at 137 n. 8. But, simply filing such an affidavit in the

record does not serve to make the affidavit competent evidence for trial or appeal

purposes. Id.; In re Montgomery, 07- 0429 ( La. App. 1 Cir. 11/ 2/ 07), 2007 WL 3229145

1 n. 1. Thus, we do not consider Mr. Templet's affidavit and attachments in our review

of the district court's judgment, because this evidence was not admitted at the hearing

on DPSC' s prescription exception, and the affidavit's mere presence in the record does

not make it competent evidence.

Accordingly, based solely on the facts alleged in Mr. Templet's petition, which we

accept as true, we find that the trial court properly dismissed his suit as prescribed. Mr.

Templet's tort claim against DPSC was subject to a liberative prescription of one year,

which began to run from the day his injury was sustained. See La. C. C. art. 3492;

Shannon, 251 So. 3d at 448. In his petition, Mr. Templet alleges that the accident on

the ferry landing occurred on November 26, 2013. His suit was filed in the 20th Judicial

District Court on July 5, 2016, over two years after the date of the accident. Although

his petition alleges that he exhausted his administrative remedies, it does not allege

when his ARP was filed nor when the final DPSC decision was delivered. Under La. R. S.

15: 1172E, these dates are required to show that prescription on Mr. Templet's tort

claim was suspended during the administrative process. Mr. Templet's inadmissible

hearsay affidavit and the attachments thereto were the only means by which he
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attempted to prove this suspension. As explained, we do not consider these

documents. Thus, because Mr. Templet's petition was not filed within one year of the

date of the accident, the petition is facially prescribed, and Mr. Templet has failed to

prove that prescription was suspended when he filed suit. Our review, however, does

not end here.

When the grounds of a peremptory exception, such as prescription, may be

removed by amendment of the petition, the judgment sustaining the exception shall

order such amendment within the delay allowed by the court. La. C. C. P. art. 934

emphasis added); Breland v. Willis Knighton Medical Ctn, 51, 150 ( La. App. 2 Cir.

2/ 15/ 17), 212 So. 3d 724, 727. Here, the judgment is silent on whether Mr. Templet's

petition could be amended to remove the grounds of prescription; we interpret this

silence as the district court's refusal to allow the amendment. See Wheelahan v. State

through Louisiana State Claims Review Bd., 376 So. 2d 576, 578 ( La. App. 4 Cir. 1979).

It appears that Mr. Templet could remove the grounds of DPSC' s exception by

amending his petition to allege specific relevant dates during which prescription was

suspended on his tort claim. Louisiana Code of Civil Procedure article 934 is liberally

applied in cases involving prescription, and where the plaintiff has raised allegations in

argument that might be sufficient to overcome a prescription exception, he should be

allowed time to amend his petition. Whitnel/ v. Menville, 540 So. 2d 304, 309 ( La.

1989); Faubourg Saint Charles, LLC v. Faubourg Saint Charles Homeowners Assn., Inc.,

18- 0806 ( La. App. 4 Cir. 2/ 20/ 19), 265 So. 3d 1153, 1159- 60; Breland, 212 So. 3d at

727. Mr. Templet has raised sufficient argument in this case to warrant an opportunity

to amend his petition. Therefore, in accordance with La. C. C. P. art. 934, we must

reverse that portion of the district court's judgment dismissing Mr. Templet's suit with

prejudice and remand this matter to allow Mr. Templet an opportunity to do so. Carr v.

Sanderson Farm, Inc., 15- 0953 ( La. App. 1 Cir. 2/ 17/ 16), 189 So. 3d 450, 457; Wesley

v. Our Lady of Lake Hoso., Inc., 15- 1649 ( La. App. 1 Cir. 6/ 3/ 16), 2016 WL 3127004

4.

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CONCLUSION

For the above reasons, we affirm the district court's November 19, 2018

judgment insofar as it granted the State of Louisiana, Department of Public Safety and
Corrections' exception of prescription. However, we reverse the judgment insofar as it

dismissed Troy Templet's petition with prejudice. We remand this matter to the district

court for the issuance of an order granting Troy Templet the opportunity to amend his

petition, if he can, within a delay the district court deems reasonable. We assess no

costs in this pauper suit.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
INSTRUCTIONS.

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