T. S v. Congregation Of Holy Cross Southern Province

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of June, 2023 are as follows:
BY Genovese, J.:
2022-CA-01826 T. S VS. CONGREGATION OF HOLY CROSS SOUTHERN PROVINCE,
INC. AND HOLY CROSS COLLEGE, INC. (Parish of Orleans Civil)
VACATED I N P ART; AFFIRME D I N P ART; AN D REMANDE D. SEE
OPINION.
Weimer, C.J., dissents in part and assigns reasons.
Hughes, J., concurs in the result.
Crichton, J., concurs in part, dissents in part for reasons assigned by Crain, J.
Crain, J., concurs in part, dissents in part and assigns reasons.
Griffin, J., concurs in the result.

SUPREME COURT OF LOUISIANA
No
. 2022-CA-01826
T
.S
VS.
CONGREGATION OF HOLY CROSS SOUTHERN PROVINCE, INC. AND
HOLY CROSS COLLEGE, INC.
O
n Appeal from the Civil District Court, Parish of Orleans Civil
GEN
OVESE, J.
In this tort case, Defendants, the Congregation of Holy Cross Southern
Province, Inc. and Holy Cross College, Inc. (collectively “Holy Cross”) , challenge
the constitutionality of 2021 La. Acts 322, §2 (“Act 322”), an enactment of the
Louisiana legislature that amended La. R.S. 9:2800.9 and revived prescribed child
sex abuse claims for a limited three-year period (sometimes referred to as “revival
provision”).1 Plaintiff, T.S., directly appealed the trial court’s judgment sustaining
Holy Cross’s exception of prescription. In sustaining the exception, the trial court
found the matter could not be resolved on non-constitutional grounds and declared
Act 322, §2 unconstitutional, reasoning that the legislature lacked authority to revive
a prescribed claim.2 After reviewing the record, along with the pertinent legislation,
we conclude that the trial court erred in finding Act 322 unconstitutional when this
1 Act 322, §1 eliminated the prescriptive period for certain abuses against minors. Section 1 is not
at issue in this case. Section 2 provides:
S
ection 2. For a period of three years following the effective date of
this Act, any party whose action under R.S. 9:2800.9 was barred by
liberative prescription prior to the effective date of this Act shall be
permitted to file an action under R.S. 9:2800.9 against a party whose
alleged actions are the subject of R.S. 9:2800.9. It is the intent of the
legislature to revive for a period of three years any claim against a
party, authorized by R.S. 9:2800.9, that prescribed prior to the
effective date of this Act.
2 Direct appeals to this Court are authorized by La. Const. art. V, § 5(D)(1), which provides:
“Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be
appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional. . . .”

2

matter could be resolved on non-constitutional, statutory grounds. Nevertheless, we
find that the trial court was correct in granting the exception of prescription.
Accordingly, we vacate the trial court’s judgment in part and affirm in part.
FACTS AND PROCEDURAL HISTORY
T.S., filed suit against Holy Cross , seeking damages for injuries allegedly
suffered as a result of sexual abuse by Brother Stanley Repucci, a former teacher
employed by Holy Cross.3 T.S. claimed the abuse occurred at the school’s dormitory
in 1964 or 1965, when he was eleven years old.
In his amended petitions , T.S. alleged Holy Cross is liable for negligently
hiring, training, retaining, and/or supervising Brother Repucci. In addition, T.S.
alleged Holy Cross is vicariously liable for Brother Repucci’s tortious conduct.
Relying on the revival provision of Act 322, T.S. maintained his claim was timely.
In response, Holy Cross filed a peremptory exception of prescription, arguing
that T.S.’s claim was subject to the general one -year liberative prescriptive period
for delictual actions.4 Holy Cross argued T.S. never had a cause of action under La.
R.S. 9:2800. 9 which could have been revived by the amendment to Act 322. 5
Alternatively, Holy Cross claimed that even if the revival provision applied to this

3 After the record was lodged with this Court, T.S. died. As a result, his legal successors were
substituted as Plaintiffs. For purposes of this opinion, we will continue to refer to the Plaintiffs as
“T.S.”

4 See La. Civ. Code art. 3492 cmt. (b) , which provides that delictual actions include intentional
misconduct.

5 Initially, the legislature enacted 1993 La. Acts 694, § 1, which created La. Civ. Code art. 3498.1,
relating to prescription applicable to an action against a person for abuse of a minor. That same
year, the article was re-designated as La. R.S. 9:2800.9 pursuant to the statutory revision authority
of the Louisiana State Law Institute. As originally enacted in 1993, La. Civ. Code art. 3498.1(A)
provided:

An action against a person for sexual abuse of a minor is subject to
a liberative prescriptive period of ten years. This prescription
commences to run from the day the minor attains majority, and this
prescription for all purposes shall be suspended until the minor
reaches the age of majority. Abuse has the same meaning as
provided in Louisiana Children’ s Code Article 603(1)(c). This
prescriptive period shall be subject to any exception of peremption
provided by law.

3

case, it is unconstitutional insofar as it operates to disturb a vested property right in
violation of its Fourteenth Amendment due process rights.
In opposition, T.S. argued the revival provision was constitutional. In the
alternative, he argued the doctrine of contra non valentem applied to suspend the
commencement of prescription.
After a hearing, the trial court sustained Holy Cross’ s exception of
prescription and dismissed T.S. ’s suit with prejudice. Thereafter, t he trial court
granted T.S.’s motion for new trial to clarify the language in the judgment. In the
amended judgment, the trial court found that the matter could not be disposed of on
non-constitutional grounds, and specifically held that Act 322 was unconstitutional.
In its written reasons for judgment, the trial court held that a plaintiff’s prescribed
claim cannot be revived by the legislature, and the doctrine of contra non valentem
did not apply to toll prescription.6
T.S. appealed the trial court’s judgment directly to this Court.
LAW AND ANALYSIS
On direct appeal, T.S. asserts that the trial court erred in sustaining the
exception of prescription under La. R.S. 9:2800.9, as amended Act 322 . He
maintains that the legislature’s express revival of prescribed claims is not precluded
by the due process clause because there is no vested property right in a prescriptive
period. Even assuming there was a vested right, he argues that the legislature has
the authority to re vive pr eviously prescribed claims when it expressly states its
intention to do so, and there is a legitimate governmental purpose.

6 The trial court noted that Act 322 provided a three -year window to bring suit for prescribed
claims. It also observed that in a 2022 amendment, the legislature clarified its intent to revive all
child abuse claims, “not just those after 1993.” As such, it he ld the 2022 amendment could not
apply to revive Plaintiff’s prescribed claim. Significantly, the constitutionality of the 2022
amendment is not before this Court. Moreover, our jurisprudence is clear that a trial court’s
reasons for judgment form no part of the judgment, and appellate courts review judgments, not
reasons for judgment. Bellard v. Am. Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654,
671.

4

We disagree with T.S. that the trial court erred in granting Holy Cross’s
exception of prescription. However, as discussed more fully herein, we base our
decision on statutory , rather than constitutional, grounds. We, thus, pretermit a
discussion of the merits of this case and find the trial court erred in holding that the
dispute could not be resolved on non-constitutional grounds.
In Burmaster v. Plaquemines Par. Gov’t, 07-2432 (La. 5/21/08), 982 So. 2d
795, we explained the well -settled principle that courts should avoid reaching or
determining the constitutionality of legislation unless it is essential to a resolution of
the case:
Although Louisiana courts generally possess the
power and authority to decide the constitutionality of
challenged statutory provisions, a court is required to
decide a con stitutional issue only “if the procedural
posture of the case and the relief sought by the appellant
demand that [it] do so.” Ring v. State, Dept. of Transp. &
Development, 02-1367, p. 6 (La.1/14/03), 835 So.2d 423,
428. Accordingly, “courts should refrai n from
reaching or determining the constitutionality of
legislation unless, in the context of a particular case,
the resolution of the constitutional issue is essential to
the decision of the case or controversy.” Id . at 4, 835
So.2d at 426. Courts “should avoid constitutional
rulings when the case can be disposed of on non-
constitutional grounds.” Id. [a]t 4, 835 So.2d at 427.
Therefore, if this case can be disposed of on the basis of a
statutory argument (i.e., a non-constitutional ground), this
court should base its decision on the statut ory ground …
[emphasis added]

Id., 07-2432, p. 7, 982 So.2d at 802-03.

A resolution of this matter is not dependent on a determination of the
constitutionality of Act 322. Rather, the matter may be resolved on a statutory basis.
Contrary to T.S.’s position, in enacting Act 322, the l egislature did not clearly
express an intent to revive prescribed sexual abuse claims that occurred prior to
1993.

5

Recently, in Succession of Lewis, 22-00079 (La. 10/21/22), 351 So. 3d 336,
this Court reiterated that in order to revive prescribed claims, at a minimum, the
legislature must make a clear and unequivocal expression. The Lewis Court stated:
This Court has clearly stated in Cameron Parish School
Board v. Acands, Inc., 687 So.2d 84 (La. 1/14/97) ... and
Chance v. American Honda Motor Co., Inc. , 635 So.2d
177, that the legislative revival of previously prescribed
claims denies the Defendant of the right to plead
prescription. This Court describes that change as
substantive as it applies to the De fendant [,] who may be
deprived of the right to plead prescription. Thus, this Court
has said [that] in such circumstance, to allow retroactive
application of a new law (which revives claims subject to
the defense of prescription),

“we require at the very least, a clear and
unequivocal expression by the Legislature for
such an extreme exercise of legislative
power.”

See Chance, supra, Pg. 178 and Cameron Parish School
Board, supra, Pg. 89.

Id., 22-00079, p. 4, 351 So.3d at 339.
Guided by this principal, we now review Act 322, which amended La. R.S.
9.2800.9. In particular, Section 2 provides:
Section 2. For a period of three years following the
effective date of this Act, any party whose action under
R.S. 9:2800.9 was barred by liberative prescription
prior to the effective date of this Act shall be permitted to
file an action under R.S. 9:2800.9 against a party whose
alleged actions are the subject of R.S. 9:2800.9. It is the
intent of the legislature to revive for a period of t hree
years any claim against a party, authorized by R.S.
9:2800.9, that prescribed prior to the effective date of
this Act. [emphasis added]

In the case before us, the basis of Holy Cross’s exception of prescription was
that T.S.’s claim was subject to the general one -year liberative prescriptive perio d
for delictual actions.
7 Thus, it argued that the revival period of Act 322 did not

7 A one-year prescriptive period would have applied until the 1993 enactment of La. Civ. Code
art. 3498.1, which increased the prescriptive period to ten years after the minor reaches the age of
majority. See footnotes 4-5, supra, and 9, infra.

6

apply. Essentially, it claimed that because La. R.S. 9:2800.9 did not exist when
T.S.’s claims arose, he never had a cause of action under that statute. We agree.8
La. R.S. 9:2800.9 was first enacted in 199 3. While Section 2 of Act 322
provides a clear and un equivocal intention to revive claims under La. R.S.
9:2800.9, there is no clear expression to revive claims prior to 1993, before La. R.S.
9:2800.9 was enacted. Because the cause of action in this case arose in the mid-
1960s, it prescribed under the one-year liberative prescriptive period then in effect.
See La. Civ. Code art. 3492.9
As a result, T.S.’s action had long since prescribed prior to the 1993 enactment
of La. R.S. 9:2800.9. Therefore, T.S.’s suit was not an action “under R.S. 9:2800.9”
for purposes of Se ction 2 of the 2021 amendment. Absent a clear legislative
expression, we cannot apply Act 322 to revive T.S. ’s claim from the mid-1960s .
Moreover, applying the clear language of Section 2, pre-1993 causes of action were
not revived.
We recognize that La. R. S. 9:2800.9 was amended again by 2022 La. Acts
386, §1, which became effective on June 10, 2022. Section 2 of the 202 2 Act
indicated it was the intent of the legislature to revive any cause of action related to
the sexual abuse of a minor that previously prescribed under any Louisiana
prescriptive period:
Section 2. Any person whose cause of action related to
sexual abuse of a minor was barred by liberative
prescription shall be permitted to file an action under R.S.
9:2800.9 on or before June 14, 2024. It is the express intent
of the legislature to revive until June 14, 2024, any cause
of action related to sexual abuse of a minor that previously
prescribed under any Louisiana prescri ptive
period. [emphasis added]

8 Though Holy Cross admittedly abandoned this argument in this Court, we must consider whether
this case can be resolved on non-constitutional grounds.

9 La. Civ. Code art. 3492 states, in pertinent part: “Delictual actions are subject to a liberative
prescription of one year. This prescription commences to run from the day injury or damage is
sustained.”

7

However, this suit was filed in August of 2021, ten months prior to the June
10, 2022 effective date of 2022 La. Acts 386, §1. Moreover, T.S. relied on Act 322
in arguing his suit was time ly, and the trial court’s amended judgment was
specifically confined to the 2021 A ct, providing, “The Court finds Acts 2021, No.
322, § 2 (“revival provision”) UNCONSTITUTIONAL.” For these reasons, the
interpretation of 2022 La. Acts 386 is not before this Court. See Boudreaux v. State,
Dep’t of Transp. and Dev., 01-1329, p. 2 (La. 2/26/02), 815 So.2d 7, 9 (this Court
“cannot consider contentions rai sed for the first time in this C ourt which were not
pleaded in the court below . …” ). Add itionally, any prescription issue relative to
2022 La. Acts 386 must be brought by a party. It cannot be supplied by the court
and must be specially pleaded under La. Code Civ. P. art. 927(B). Such was not
done in this case; therefore, this court is without authority to address 2022 La. Acts
386.
Given that Act 322 does not expressly apply to T.S.’s pre-1993 cause of
action, we find his claim is prescribed on its face. The burden of proving prescription
ordinarily lies with the party raising the exception; however, when prescription is
evident from the face of the petition, the burden shifts to the plaintiff to show the
action has not prescribed. Hogg v. Chevron USA, Inc. , 09-2632, p. 7 (La. 7/6/10),
45 So.3d 991, 998.
Here, the face of the petition shows that T.S.’s claim was not filed within one
year of the alleged sexual abuse. Thus, he had the burden of proving his action had
not prescribed.
T.S. maintains that prescription was suspended under the third and fourth
categories of the doctrine of contra non valentem . Contra non valentem , a
jurisprudentially-created exception to prescription, adopted to “soften the occasional
harshness of prescriptive statutes,” generally “means that prescription does not run
against a person who could not bring his suit.” Carter v. Haygood, 04-0646, p. 11

8

(La. 1/19/05), 892 So. 2d 1261, 1268 . Determinations as to whether contra non
valentem applies to suspend prescr iption generally proceed on an individual, case -
by-case basis. State v. All Prop. & Cas. Ins. Carriers Authorized & Licensed To Do
Bus. In State, 06-2030, p. 19 (La. 8/25/06), 937 So.2d 313, 327 n. 13.
Louisiana law recognizes four categories of contra non valentem that operate
to prevent the running of prescription:
(1) where there was some legal cause which prevented
the courts or their officers from taking cognizanc e of
or acting on the plaintiff’s action; (2) where there was
some condition coupled with the contract or connected
with the proceedings which prevented the creditor
from suing or acting; (3) where the debtor himself has
done some act effectually to prevent the creditor from
availing himself of his cause of action;[ 10] and (4)
where the cause of action is not known or reasonably
knowable by the plaintiff, even though this ignorance
is not induced by the defendant.

Carter, 04-0646, pp. 11-12, 892 So.2d at 1268.
After a hearing, the trial court held that the doctrine of contra non valentem
did not operate to defeat prescription in T.S.’s case, finding T.S. expressed
awareness and understanding of the abuse in 1982 or 2008, at the latest. In its written
reasons for judgment, it stated:
As to the argument of contra non valentem, the Court takes
note that Plaintiff disclosed the abuse while at a
rehabilitation clinic in 1982. Plaintiff also contacted a
representative of Holy Cross about the abuse in 2007 or
2008. As a result, the Court finds that Plaintiff had
knowledge of the abuse as early as 1982 and expressly in
2007 or 2008, when he contacted a representative of Holy
Cross to report the abuse he suffered as a child.

Here, however, T.S. argues the abuse, itself, caused devastating psychological
affects involving years of guilt and self -blame, which prevented him from truly

10 There are three elements which must be proven in order to apply the third category of contra
non valentem: (1) the defendant engaged in conduct whi ch rises to the level of concealment,
misrepresentation, fraud or ill practice; (2) the defendant’s actions effectually prevented the
plaintiff from pursuing a cause of action; and, (3) the plaintiff must have been reasonable in his or
her inaction. Marin v. Exxon Mobil Corp., 09- 2368, p. 24 (La. 10/19/10), 48 So.3d 234, 252
(citations omitted).

9

understanding and availing himself of his cause of action. In fact, he alleges he did
not become aware of his potential cause of action until 2021 , when he read a
newspaper article that disclosed other victims of Brother Repucci’s alleged sexual
abuse. In support of his argument, he relies on Wimberly v. Gatch, 635 So.2d 206,
216 (La. 1994), in which t his Court recognized that the very act of child sexual
abuse, by its nature, can prevent the victim “from availing himself of his cause of
action.”11
In Wimberly, a nine-year-old boy, B.W.,12 was sexually abused by his o lder
brother’s Boy Scout leader; and, due to this incident, B.W. was placed in therapy.
Id., 635 So.2d at 207. During the course of therapy , it was discovered that he had
also be en sexually abused for approximately three years by a sixteen-year -old,
neighborhood boy. Id.
The Wimberlys, on B.W.’s behalf, filed suit against the perpetrator’s parents.
In response, the boy’s parents filed an exception of prescription. T he Wimberlys
opposed the exception, maintaining that contra non valentem applied to suspend
prescription. Id., 635 So.2d at 208.
Rejecting the Wimberlys’ argument, the trial court granted the exception of
prescription.13 The court of appeal affirmed. Id ., 635 So.2d at 210. This Court
reversed, finding the doctrine of contra non valentem applied to toll prescription.
Id., 635 So.2d at 207, 217.
The Wimberly Court referenced the clinical opinion known as “Child Sexual
Abuse Acc ommodation Syndrome” (“CSAAS”). Id ., 635 So.2d at 213. This
scientific theory holds that many child victims, being silent, helpless, and guilt-

11 Plaintiff also points out that the legislative testimony in the record, which parallels the reasoning
in Wimberly, reveals that the average age of disclosure of child sex abuse is fifty-two years old.

12 In accordance with La. R.S. 46:1844(W), the initials for the minor victim are used.

13 The trial court did maintain a single claim of sex abuse for the last instance that was not
prescribed on its face.

10

ridden, display characteristics of entrapment and accommoda tion, followed by
delayed, conflicted and unconvincing disclosure, and finally retraction. Id., 635
So.2d at 214. Further, due to these normal behavioral reactions, the Wimberlys were
prevented from pursuing claims on behalf of their son. Id., 635 So.2d at 216-217.
This Court therefore applied a combination of the third and fourth categories
of contra non valentem, where a child victim during his minority failed to disclose
to his parents the fact of his abuse until after prescription had accrued. In doing so,
the Court refused to “reward the molester by allowing him to profit by the normal
behavioral reactions of his victim to the sexual abuse.” Id., 635 So.2d at 215.
The Wimberly Court distinguished cases which “involve majors, persons of
legal age filing suit on their own behalf against the defendant tortfeasors[,]” such as
in Laughlin v. Breaux, 515 So.2d 480 (La. App. 1st Cir. 1987), Bock v. Harmon, 526
So.2d 292 (La. App. 3rd Cir. 1988), and Doe v. Ainsworth, 540 So.2d 425 (La. App.
1st Cir. 1989); cf. Held v. State Farm Ins. Co. , 610 So.2d 1017 (La. App. 1st Cir.
1992) (In Held, the court found that the doctrine of contra non valentem applied
when the victim suffered abuse at the hands of her father.14) Id., 635 So.2d at 212-
213.
Unlike Wimberly, this case involves a person of the age of majority filing suit
on his own behalf. Here, the record clearly reflects that after he reached the age of
majority, T.S. disclosed the abuse on numerous occasions. In 1982, he shared the
abuse in a group therapy session in a rehabilitation facility. Later, in either 2007 or

14 The court found:

Plaintiff’s post-traumatic stress disorder prevented her from acting
until she knew she was completely innocent and her father was
solely responsible, triggering the second category. Her parents’
refusal to pay for her therapy triggers the third category. We find the
combination of these two factors makes contra non valentem
applicable here. . . .

Held, 610 So. 2d at 1020.

11

2008, he reported the abuse directly to Holy Cross. In addition, he disclosed the
abuse to family members, including his wife.
While we recognize contra non valentem may have suspended the running of
prescription until 2008, T.S. ’s claim would have prescribed in 2009, at the latest .
After contacting Holy Cross in 2008, the nature of the abuse was well-known to T.S.,
and his inaction was no longer plausible. Under these facts, T.S.’s reliance on the
third and fourth categories of contra non valentem to escape prescription is
misplaced. Accordingly, since T.S. did not meet his burden of proving his claim
was not pr escribed, the trial court did not err in sustaining the exception of
prescription.
CONCLUSION
Because there was a statutory basis for sustaining the exception of prescription
without having to determine the constitutionality of Act 322, the case is not in the
proper procedural posture for constitutional review. Accordingly, we find the trial
court e rred in reaching that issue. “For well over a century, this court has
consistently refrained from entertaining questions as to the constitutionality of laws
except where that determination is essential to the decision.” Edwards v. Louisiana
State Legislature , 20 -1407, p. 4 (La. 12/21/20), 315 So. 3d 213, 215 (citations
omitted). While we acknowled ge this case presents a sensitive issue which is
important to the citizens of our state, we cannot ignore the fundamental principle s
of orderly statutory interpretation. Rather, it is critical that a case must reach this
Court in the proper procedural posture to warrant our review of a ruling on
constitutionality. See Matherne v. Gray Ins. Co., 95-0975 (La. 10/16/95), 661 So.2d
432.
Based upon the foregoing, we vacate that portion of the trial court’s judgment
that declared Act 322 unconstitutional. However, given our finding that T.S.’s cause
of action is prescribed, the trial court’s judgment sustaining the exception of

12

prescription is affirmed. Additionally, we note the provision in La. Code Civ. P. art.
934,15 which mandates an amendment to the petition when the grounds of the
objection pleaded by the exception may be removed by amendment; and we remand
this case to the trial court to allow plaintiffs to amend their petition.
DECREE
The amended final judgment of the trial court is vacated in part, insofar as it
declared Act 322, §2 unconstitutional. In all other respects, the trial court’s
judgment is affirmed. In accordance with La. Code Civ. P. art. 934, we remand this
matter to the trial court to allow plaintiffs to amend their petition.
VACATED IN PART; AFFIRMED IN PART; AND REMANDED.

15 La. Code Civ. P. art. 934 states, in relevant part: “When the grounds of the objection pleaded by
the peremptory exception may be removed by amendment of the petition, the judgment sustaining
the exception shall order such amendment within the delay allowed by the court.”

SUPREME COURT OF LOUISIANA
No. 2022-CA-01826
T.S.
VS.
CONGREGATION OF HOLY CROSS SOUTHERN PROVINCE, INC.
AND HOLY CROSS COLLEGE, INC.
On Appeal from the Civil District Court, Parish of Orleans
WEIMER, C.J., dissenting in part.
I respectfully dissent from the majority’s decision not to address the
constitutional issue. Although courts should avoid reaching or determining the
constitutionality of legislation unless the resolution of the constitutional issue is
essential to the decision of the case or controversy, a court is required to decide a
constitutional issue if the procedural posture of the case and the relief sought by the
appellant demand that the court do so. The plaintiff asserts that his claim is viable
pursuant to the authorization granted by 2021 La. Acts 322, § 2, and appeals the
district court’s judgment sustaining the defendants’ exception of prescription on the
basis that 2021 La. Acts 322, § 2, is unconstitutional. In this appeal, the defendants
argue that revival of a prescribed claim pursuant to 2021 La. Acts 322, § 2, is an
unconstitutional deprivation of a vested right. The majority’s analysis essentially
re-urges and accepts the defendants’ abandoned argument that the plaintiff has no
cause of action under 2021 La. Acts 322, § 2.1 I must respectfully dissent from this
part of the majority’s decision.
1 See T.S. v. Congregation of Holy Cross Southern Province, Inc., et al., 2023-1826, slip op. at
p. 6, n.8 (indicating that defendant Holy Cross abandoned this argument in this court).

Accepting as true, at this nascent stage of the action, the facts alleged on the
face of the petition, it is clear that the unresolved constitutional question is still
present at this initial stage of this case and that resolution is necessary to move
forward. The petition was filed in August 2021, and the suit was pending when 2022
La. Acts 386, § 2, became law and clarified the intent of 2021 La. Acts 322, § 2. The
legislative intent of the amended procedural rule at the heart of this appeal was
clarified by the legislature while that very question was pending before the district
court.2 “[A]n appellate court is bound to adjudge a case before it in accordance with
the law existing at the time of its decision.” Segura v. Frank, 630 So.2d 714, 725
(La. 1994). In holding that the plaintiff’s action is prescribed and, further, that the
plaintiff has no cause of action, the majority’s analysis effectively discounts a
material change in the law.
The plaintiff may be permitted to amend the petition to remove the grounds of
the perceived deficiency in his petition. See La. C.C.P. art. 934; La. C.C.P. 1151.
However, amendment of the petition here is not necessary. A plaintiff may recover
under whatever legal theory is appropriate based on the facts alleged in the petition.
See, e.g., Martin v. Thomas, 2021-1490, p. 6 (La. 6/29/2022), 346 So.3d 238, 243
(citing Perkins v. Scaffolding Rental & Erection Serv., 568 So.2d 549, 553 (La.
1990)). The application of laws to the facts is the essential function of courts. Saia
Motor Freight Lines, Inc. v. Agerton, 275 So.2d 393, 395 (La. 1973). It is
undeniable that 2021 La. Acts 322, § 2, and 2022 La. Acts 386, § 2, are inextricably
linked as applied to the alleged facts before us and as applied to the procedural course
2 Although the district court’s written reasons refer to Act 386, its judgment declares only Act 322
unconstitutional and otherwise makes no mention of Act 386. While obviously the judgment
governs, the reasons for judgment demonstrate that the district court considered Act 386 which the
majority does not consider.
2

of this case. The plaintiff already has stated a cause of action that implicates the
amended prescriptive period for such actions, set forth in La. R.S. 9:2800.9. See La.
C.C. art. 6 (procedural and interpretive laws are presumed to apply both prospectively
and retroactively, absent contrary legislative expression); La. R.S. 1:2 (provisions of
the Revised Statutes may be retroactive, though only if expressly so stated). Because
the defendants intentionally abandoned the argument by which the majority reaches
its conclusion and because both parties seek immediate resolution of the threshold
constitutionality issue, it is my opinion that the court should address this
fundamentally important issue at this time, consistent with the shared interest of both
the parties and the judiciary in the efficient administration of justice.
A court simply should not foist an abandoned argument on a party so as to
avoid a constitutional issue, particularly when a party’s pursuit of that argument
appears likely at the outset to yield only a Pyrrhic victory. It was the defendants’
decision to abandon that argument on appeal, presumably in order to have the court
rule on the constitutional issue which ultimately must be resolved. Setting aside that
decision only delays the inevitable need to resolve the constitutional issue.3 The
highest court in this state should resolve the underlying issue to provide necessary
resolution and then closure, which these parties and countless others still hope to find.
3 It is clear that the constitutional issue must be addressed to resolve these parties’ dispute. Because
this plaintiff can overcome the procedural deficiency referenced by the majority and thereby re-urge
the same issue, any diminishment of that underlying concern by resort to procedural mechanics
would prove to be merely illusory and temporary.
3

S
UPREME COURT OF LOUISIANA
No
. 2022-CA-01826
T
.S
VS.
CONGREGATION OF HOLY CROSS SOUTHERN PROVINCE, INC. AND
HOLY CROSS COLLEGE, INC.
O
n Appeal from the Civil District Court, Parish of Orleans Civil
C
RICHTON, J., concurs in part and dissents in part for the reasons assigned
by Crain, J.

SUPREME COURT OF LOUISIANA
No. 2022-CA-01826
T.S
VS.
CONGREGATION OF HOLY CROSS SOUTHERN PROVINCE, INC. AND
HOLY CROSS COLLEGE, INC.
On Appeal from the Civil District Court, Parish of Orleans Civil
CRAIN, J., concurring in part, dissenting in part.
The trial court judgment declares only 2021 La. Acts No. 322 , §2
unconstitutional. The judgment makes no mention of 2022 La. Acts No. 386, which
broadly applies to “any cause of action related to sexual abuse of a minor that
previously prescribed under any Louisiana prescriptive period.” See 2022 La. Acts
No. 386, §2. Act 386 further provides that any person having such a claim “shall be
permitted to file an action under R.S. 9:2800.9 on or before June 14, 2024.”
Act 386’s constitutionality has not been ch allenged or judicially determined
in the trial court. Until such time, it remains in effect and dispositive of the merits
of the subject exception. “[A]n appellate court is bound to adjudge a case before it
in accordance with the law existing at the time of its decision.” Segura v. Frank ,
630 So. 2d 714, 725 (La. 1994). Application of laws to the facts is the essential
function of courts. Saia Motor Freight Lines, Inc. v. Agerton, 275 So. 2d 393, 395
(La. 1973).
Plaintiff’s claim falls within the scope of Act 386 and was filed in 2021. It is
thus timely on its face under Act 386 . The trial court erred in sustaining the
exception of prescription and unnecessarily declaring Act 322’s revival provision
unconstitutional, which was n ot essential to the disposition of the exception. For
these reasons, I concur in vacating the judgment declaring Act 32 2’s revival

provision unconstitutional , dissent from affirming the judgment sustaining the
exception of prescription, and would remand for further proceedings.