Loren Balthazor v. State of Louisiana through the LA Department of Public Safety and Louisiana Office of Motor Vehicles and State Farm Mutual Automobile Insurance Company

FIRST CIRCUIT

2024 CA 0 156

STATE OF LOUISIANA THROUGH THE LA DEPARTMENT OF
PUBLIC SAFETY AND LOUISIANA OFFICE OF MOTOR
VEHICLES AND STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

DEC 0 6 2024-
DATE OF JUDGMENT:

N APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURTZ
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER C722226, SECTION 22

110
81 v Im

W. Michael Stemmans Counsel for Plaintiff A
- ppellant
M. Todd Alley Loren Balthazor
Michael J. Taffaro
Jennifer E. Frederickson
Baton Rouge, Louisiana

Liz Murrill Counsel for Defendant -Appellee

Attorney General State of Louisiana, through the
Joseph Thigpen Louisiana Department of Public

Assistant Attorney General Safety and Louisiana Office of Motor
Baton Rouge, Louisiana Vehicles
Jeannie C. Prudhomme
Assistant Attorney General
Lafayette, Louisiana

norarsvirm-

Disposition: AFFIRMED.

Chutz, J.

Plaintiff, Loren Balthazor, appeals a district court judgment dismissing, with
prejudice, his claims against one of the defendants in this action on the grounds of

prescription. We affirm.

On January 26, 2021, plaintiff purchased a 2016 Chevrolet Silverado from

State Farm Mutual Automobile Insurance Company ( State Farm) at a public auction
for $37, 847. 45. According to plaintiff, State Farm had obtained title to the Silverado

following an insurance settlement. Prior to the auction, State Farm requested the

State of Louisiana, through the Department of Public Safety, Office of Motor
Vehicles ( OMV), issue a certificate of destruction' on the Silverado due to water

damage to the vehicle' s powertrain, computer, and electrical system. On December

15, 2020, a certificate of destruction was issued on the Silverado. Under La. R.S.

32: 707. 3( C)( 1), " no motor vehicle for which a certificate of destruction has been

issued shall be later ... titled or registered by [ OMV] for use on the roads or

highways of this state. [21,,

After purchasing the vehicle in January 2021, plaintiff expended money on
new tires and repairs for the vehicle. He also requested that OMV rescind the

certificate of destruction and issue an unrestricted title of ownership to him. OMV
refused his request.

1 A "certificate of destruction" is " a type of certificate of title issued by the office of motor vehicles
for a ' water -damaged vehicle' ... whose power train, computer, or electrical system has been
damaged by flooding as the result of a gubematorially declared disaster or emergency and that is
a ' total loss' as defined in this Section." La. R.S. 32: 702( A)( 5).

2 Further, La. R.S. 32. 707. 3( C)( 2) provides: " Notwithstanding any other law to the contrary, no
motor vehicle which has been issued a certificate of destruction shall be resold as a retail unit, and
such vehicle shall be dismantled, sold for any usable parts, or crushed." The propriety of State
Farm' s sale of the vehicle to plaintiff is not a matter before us in this appeal.

2

On August 12, 2022, over eighteen months after purchasing the vehicle,

plaintiff filed suit naming OMV as a defendant.' Plaintiff alleged OMV improperly

issued the certificate of destruction without adequate documentation to support its

issuance. He asserted the documents State Farm provided to OMV did not

demonstrate the extent of the damage to the vehicle and were not witnessed or

notarized.
According to plaintiff, the vehicle had sustained only minor hall damage,

rather than the extensive damage claimed by State Fann. In his prayer for relief,

plaintiff requested the certificate of destruction be voided and an unrestricted title to

the vehicle be issued to him, and he be awarded damages and attorney fees.

After filing an answer generally denying plaintiffs allegations, OMV filed a

peremptory exception raising the objections of prescription and no cause of action,

as well as a dilatory exception raising the objection of vagueness.' OMV asserted

plaintiff' s negligence claim was prescribed because it was not filed within the

applicable one- year prescriptive period provided by former La. C. C. art. 3492.'

Following a hearing, the district court overruled OMV' s exceptions of no

cause of action and vagueness and sustained OMV' s exception of prescription. On

October 10, 2022, the district court signed a judgment in accordance with its oral

rulings and dismissed plaintiff' s claims, with prejudice, on the basis of prescription.

Plaintiff appeals, arguing in two assignments of error that the district court erred in

3 State Farm was also named as a defendant but is not a party to this appeal.
4 OMV alleged plaintiff' s negligence claim and request to void the certification of destruction was
barred by La. R.S. 32: 707. 3( C)( 1), which prohibits OMV from retitling a vehicle for road use once
a certificate of destruction has been issued on the vehicle. Accordingly, OMV argued plaintiff' s
petition fails to state a valid cause of action. OMV also argued plaintiffs petition was
impermissibly vague in requesting attorney fees without stating any contractual or statutory basis
for their recovery.

5 Louisiana Civil Code article 3492 was repealed by La. Acts 2024, No. 423, § 2. Section 3 of Act
423 provided it was to be given prospective application only to actions arising after its effective
date, which was July 1, 2024. Accordingly, former La. C. C. art. 3492 is applicable to the instant
action. Louisiana Civil Code articles ' )493. 1 and 3493. 2 now provide a two- year prescriptive
period for delictual actions.

3

finding his suit was prescribed and in failing to afford him an opportunity to amend
his petition.

DISCUSSION

Plaintiff argues the district court erred in finding the one- year prescriptive

period provided by former La. C.C. art. 3492 for delictual actions was applicable.

He contends this action is a personal action subject to a ten-year prescriptive period

under La. C. C. art. 3499. Further, based on OMV' s continuing refusal to void the

certificate of destruction and to issue an unrestricted title to him, plaintiff argues

prescription has not even commenced under the continuing tort doctrine. Plaintiff

also contends the district court erred in failing to afford him an opportunity to amend
his petition pursuant to La. C. C. P. art. 934.

The prescriptive period applicable to an action is determined by the character
of the action disclosed in the pleadings. Fishbein v. State ex rel. Louisiana State

University Health Science Center, 04- 2482 ( La. 4/ 12/ 05), 898 So. 2d 1260, 1265.

The underlying basis of plaintiffs claims is his allegation that OMV " improperly

issued] the Certificate of Destruction without adequate supporting documentation
so as to form a basis for said Certificate." In his petition, plaintiff seeks damages

and mandatory injunctive relief ordering OMV to void the certificate of destruction

and to issue an unrestricted title to plaintiff.6 Because all of plaintiffs claims arise

from OMV' s allegedly wrongful issuance of the certificate of destruction, this action

is delictual in nature. As such, the one- year prescriptive period provided by former
Article 3492 is applicable. Therefore, any action based on OMV' s issuance of the

6 Courts look beyond the caption, style, and form of pleadings to determine from the substance of
the pleading the nature of the proceeding. Garner v. Redwood Investment Company, 22- 1049
La. App. 1st Cir. 7/ 31/ 23), 371 So. 3d 528, 532. Although plaintiff does not style his action as
one for mandatory injunctive relief, he specifically requested the district court order OMV to void
the certificate of destruction and to issue him an unrestricted title. An order commanding a party
to take specific action is a mandatory injunction. City ofNew Orleans v. Board of Directors of
Louisiana State Museum, 98- 1170 ( La. 3/ 2/ 99), 739 So. 2d 748, 756.

0

certificate of destruction prescribed one year from December 15, 2020, the date the

certificate of destruction was issued. Plaintiff did not file the instant action until

August 12, 2022, almost eighteen months after the act giving rise to the action.
Given these facts, the district court properly sustained OMV' s exception of

prescription.

Furthermore, plaintiffs action is prescribed even assuming, arguendo, that

prescription did not commence until plaintiff obtained knowledge of the certificate

of destruction upon purchasing the vehicle on January 26, 2021. Well over a year

elapsed after that date before plaintiff filed this action in August 2022. Further, we

reject plaintiffs argument that prescription has not run because OMV' s continued

refusal to void the certificate of destruction and to issue him an unrestricted title is a

continuing tort.

Under the continuing tort doctrine, where the cause of injury is a continuous

one giving rise to successive damages, prescription does not begin to run until the

conduct causing the damage is abated. Brecheen v. Skok, 22- 0624 ( La. App. I st

Cir. 12/ 22/ 22), 367 So. 3d 716, 719, writ denied, 23- 00404 ( La. 5116/ 23), 360 So. 3d

838. The focus ofthe continuing tort inquiry is a conduct -based one, asking whether

the tortfeasor perpetuates the injury through overt, persistent, and ongoing acts. If

the operating cause of the damage is discontinuous in nature, even if the damage is

continuous, the continuing tort theory is inapplicable. Brecheen, 367 So.3d at 719.

Plaintiff has neither alleged nor established the existence of a continuing tort.

While plaintiff claims he is suffering continuous damage, he has not alleged a

continuous or repetitive operating cause of such damage. Rather, the operating cause

of the claimed damages was the issuance of the certificate of destruction in

December 2020, which was a discrete act, discontinuous in nature. See Brecheen,

367 So. 3d at 719- 20.

5

There is no merit in plaintiffs contention that OMV' s continued refusal to

void the certificate of destruction and to issue him an unrestricted title is a continuing
tort.
It is well-settled that the breach of the duty to right a wrong and make the

plaintiff whole cannot be a continuing wrong that suspends the running of

prescription, as that is the purpose of any lawsuit and the obligation of every

tortfeasor. Brecheen, 367 So. 3d at 720. Plaintiff' s inability to obtain an unrestricted

title from OMV in place of the certificate of destruction is merely a continuing effect
of OMV' s original act of issuing the certificate of destruction rather than an

operating cause of his claimed damages.

Plaintiff also contends his demand for a declaration regarding whether the
certificate of destruction should be voided is a personal action subject to a ten-year

prescriptive period under La. C. C. art 3499. We disagree. First, despite plaintiffs

claim that his petition sought a declaration regarding the nature of his movable

property and whether the certificate of destruction should be voided, an examination

of the petition reveals otherwise. Rather than seeking declaratory relief, plaintiff

sought damages, as well as a judgment ordering OMV to void the certification of

destruction and to issue an unrestricted title to him. Such a judgment constitutes

mandatory injunctive relief rather than declaratory relief. See City ofNew Orleans,
739 So. 2d at 756. Second, while the right to seek a declaratory judgment does not

itself prescribe, the nature of the basic underlying action determines the appropriate

prescriptive period. Knox v. West Baton Rouge Credit, Inc., 08- 1818 ( La. App. 1st
Cir. 3/ 27/ 09), 9 So.3d 1020, 1023; Fishbein, 898 So. 2d at 1265. In this case, the

underlying action was delictual in nature, subject to the one- year prescriptive period

provided by former La. C. C. art. 3492. Therefore, even if plaintiff had sought

declaratory relief herein, it also would have been subject to the same one- year

prescriptive period.

0

Accordingly, we find the district court properly sustained OMVs exception

of prescription and dismissed plaintiff s action against OMV. Additionally, we find

no error in the district court not affording plaintiff an opportunity to amend his
petition.
Under La. C. C. P. art. 934, a party shall be given an opportunity to amend

if the grounds of a peremptory exception may be removed by amendment of the

petition. If the grounds for the exception cannot be removed, however, Article 934

provides the plaintiff' s action shall be dismissed.

Plaintiff has given no indication of how he could cure or remove the grounds

for the exception of prescription if given an opportunity to amend. He merely

contends he should be given an opportunity to amend " to further address the

prescription issue." Our review of plaintiff' s petition reveals no manner in which he

could amend the petition to remove the grounds for OMV' s exception. Article 934

does not require that an opportunity to amend be afforded where the amendment

would be a vain and useless act. O'Brock v. White, 18- 1345 ( La. App. 1st Cir.

4/ 12/ 19), 276 So. 3d 178, 184, writ denied, 19- 00750 ( La, 10/ 15/ 19), 280 So. 3d 599.

CONCLUSION

For these reasons, the district court' s October 10, 2022 judgment is affirmed.

Plaintiff is to pay all costs of this appeal.

AFFIRMED.

IN