Gail Ruffins Versus Haza Foods of Louisiana, LLC

GAIL RUFFINS NO. 21-CA-619

VERSUS FIFTH CIRCUIT

HAZA FOODS OF LOUISIANA, LLC COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-483, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

May 25, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Robert A. Chaisson

AFFIRMED
JGG
SMC
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
GAIL RUFFIN
DaShawn P. Hayes

COUNSEL FOR DEFENDANT/APPELLEE,
HAZA FOODS OF LOUISIANA, LLC
Dean M. Arruebarrena
Misha M. Logan
Alexander B. Johnson
Megan A. Haynes

GRAVOIS, J.

In this slip and fall case, plaintiff, Gail Ruffins, appeals the trial court’s

March 2, 2021 judgment which granted the peremptory exception of prescription

filed by defendant, HAZA Foods of Louisiana, L.L.C. (“HAZA Foods”), and

dismissed plaintiff’s claims against defendant with prejudice. On appeal, plaintiff

argues that the trial court erred in finding her suit prescribed because defendant

renounced the accrual of prescription and because the doctrine of contra non

valentem applied to suspend prescription. For the following reasons, finding no

merit to plaintiff’s arguments, we affirm.

FACTS AND PROCEDURAL HISTORY

The underlying facts in this case are not in dispute. On June 10, 2019, Ms.

Ruffins filed a petition for damages in Civil District Court for the Parish of Orleans

against HAZA Foods, operator of Wendy’s #204. In her petition, Ms. Ruffins

alleged that on or about June 22, 2018, while she was a patron at “Wendy’s #204,

located at 1129 S. Clearview Parkway, New Orleans, LA,” she slipped and fell on

a liquid substance on the floor. On July 8, 2019, HAZA Foods was served with the

petition for damages.

On August 26, 2019, HAZA Foods filed an exception of improper venue,

arguing that Orleans Parish had no connection to the litigation. HAZA Foods

argued that the subject Wendy’s is located in Jefferson Parish and requested that

the matter be transferred to Jefferson Parish. On November 14, 2019, Ms. Ruffins

consented to the grant of the exception of improper venue and the transfer of the

matter to the proper venue. On that same date, the Orleans Parish Civil District

Court granted the exception and transferred the matter to the 24th Judicial District

Court for the Parish of Jefferson. On June 22, 2020, the Clerk of Court for the 24th

Judicial District Court sent notice of receipt of the transfer and stated that the suit

would be filed and assigned a case number upon receipt of payment of the requisite

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fees. On July 22, 2020, the Clerk of Court for the 24th Judicial District Court

notified the parties that the case was transferred and assigned a case number. On

September 16, 2020, HAZA Foods filed its answer to the petition for damages.

On November 20, 2020, HAZA Foods filed a peremptory exception of

prescription, alleging that Ms. Ruffins’ claims were prescribed because the suit

was initially filed in an improper venue and prescription was not interrupted since

HAZA Foods was not served with the petition within one year of the date of the

incident.

Ms. Ruffins filed an opposition to the exception. Therein, she argued that

HAZA Foods renounced the accrual of prescription when it did not timely file its

responsive pleadings after being properly served, when it continued litigating the

matter in Orleans Parish by conducting discovery, and because it waited a year to

file its exception of prescription. She also argued that the doctrine of contra non

valentem applied in this matter because the subject Wendy’s location was

misrepresented on Wendy’s website. In support, Ms. Ruffins attached as an

exhibit to her opposition a printout from Wendy’s website, which listed the address

for the subject Wendy’s as “1129 Clearview Pkwy, New Orleans, LA 70121.”

On February 5, 2021, the parties argued the merits of the exception of

prescription and introduced exhibits in support of their arguments. At the end of

the hearing, the trial court granted the exception. In oral reasons for judgment, the

trial court found there was no evidence that HAZA Foods renounced prescription

and the facts did not support the application of contra non valentem. The trial

court acknowledged that the Wendy’s address listed on its website did say “New

Orleans,” but found that “Clearview’s not even close to the parish line, so I don’t

think there’s any confusion that this Wendy’s is, in fact, in Jefferson Parish.” On

March 2, 2021, the trial court signed a written judgment granting the peremptory

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exception of prescription and dismissing Ms. Ruffins’ claims against HAZA Foods

with prejudice.1 This appeal followed.

LAW AND ANALYSIS

An exception of prescription is a type of peremptory exception. The

function of the peremptory exception is to have the plaintiff’s action declared

legally nonexistent, or barred by the effect of law, and hence this exception tends

to dismiss or defeat the action. Farber v. Bobear, 10-0985 (La. App. 4 Cir.

1/19/11), 56 So.3d 1061, 1069, citing La. C.C.P. arts. 927 and 923, respectively.

Ordinarily, the exceptor bears the burden of proof at the trial of the

peremptory exception, including prescription. However, if prescription is evident

on the face of the pleadings, the burden shifts to the plaintiff to show that the

action has not prescribed. When a cause of action is prescribed on its face, the

burden is upon the plaintiff to show that the running of prescription was suspended

or interrupted in some manner. Woods v. Cousins, 12-100 (La. App. 5 Cir.

10/16/12), 102 So.3d 977, 979, writ denied, 12-2452 (La. 1/11/13), 107 So.3d 617

(internal citations omitted); In re Singleton, 19-578 (La. App. 5 Cir. 9/2/20), 303

So.3d 362, 366-67.

At the trial of a peremptory exception of prescription, “evidence may be

introduced to support or controvert any of the objections pleaded, when the

grounds thereof do not appear from the petition.” Woods, supra, 102 So.3d at 978,

citing La. C.C.P. art. 931. In the absence of evidence, the exception of prescription

must be decided on the facts alleged in the petition, which are accepted as true. Id.

at 978-79. But the latter principle applies only to properly-pleaded material

allegations of fact, as opposed to allegations deficient in material detail, conclusory

1
The judgment also confirmed the trial court’s oral rulings during the hearing that all exhibits
offered by the parties at the hearing were admitted, except for a printout from the Jefferson Parish
Assessor’s Office, attached as Exhibit 1 to HAZA Foods’s reply memorandum.

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factual allegations, or allegations of law. Id. at 979, citing Kirby v. Field, 04-1898

(La. App. 1 Cir. 9/23/05), 923 So.2d 131, 135.

The standard of review of a trial court’s ruling on a peremptory exception of

prescription turns on whether evidence is introduced. Wells Fargo Financial

Louisiana, Inc. v. Galloway, 17-0413 (La. App. 4 Cir. 11/15/17), 231 So.3d 793,

800. When no evidence is introduced, appellate courts review judgments

sustaining an exception of prescription de novo, accepting the facts alleged in the

petition as true. DeFelice v. Federated Nat’l Ins. Co., 18-374 (La. App. 5 Cir.

7/9/19), 279 So.3d 422, 426. However, when evidence is introduced at a hearing

on an exception of prescription, the trial court’s findings of fact are reviewed under

the manifest error standard. Id.

Delictual actions are subject to a liberative prescriptive period of one year,

which commences to run from the date the injury is sustained. La. C.C. art. 3492.

La. C.C. art. 3462 provides:

Prescription is interrupted when the owner commences action against
the possessor, or when the obligee commences action against the
obligor, in a court of competent jurisdiction and venue. If action is
commenced in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served by process
within the prescriptive period.

(Emphasis added.)

In her petition, Ms. Ruffins alleged that she was injured in a slip and fall

accident on June 22, 2018; accordingly, under La. C.C. art. 3492, she had one year

from that date to file suit. The record indicates that though the petition was filed

on June 10, 2019, it was filed in an improper venue—Orleans Parish. It is

undisputed that HAZA Foods was not served until July 8, 2019, well after the one-

year anniversary date of Ms. Ruffins’ accident. Therefore, because HAZA Foods

was not served within the prescriptive period, the filing of the suit in the improper

venue did not interrupt prescription, and Ms. Ruffins’ claims against HAZA Foods

prescribed.

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Renunciation of accrual of prescription

On appeal, Ms. Ruffins argues that the trial court erred in granting the

exception of prescription because HAZA Foods renounced any accrual of

prescription through its continued litigation of the suit. She contends that after the

petition was filed, HAZA Foods did not file its responsive pleadings within 15

days of service of the petition, and instead contacted Ms. Ruffins’ counsel to seek

an extension, which was granted. Subsequently, HAZA Foods filed its exception

of improper venue. The exception did not raise any issue with prescription, and

the exception of prescription was not filed until almost a year after the Orleans

Parish Civil District Court ordered that the suit be transferred. Further, prior to

filing the exception of prescription, Ms. Ruffins alleges that HAZA Foods

continued to litigate the matter in Orleans Parish by issuing general personal injury

discovery.

Once prescription has run, it may be renounced. La. C.C. art. 3449.

“Renunciation of prescription” is the technical term designating the abandonment

of rights derived from an accrual of prescription. Id. at comment (c). That is,

renunciation of prescription destroys the effect of prescription that has already run.

Neese v. Papa John’s Pizza, 10-15 (La. App. 5 Cir. 6/29/10), 44 So.3d 321, 328.

Renunciation of prescription may be express or tacit. Tacit renunciation results

from circumstances that give rise to a presumption that the advantages of

prescription have been abandoned. La. C.C. art. 3450. Louisiana courts have

consistently held that renunciation of prescription must be clear, direct, and

absolute, and it must be manifested by words or actions of the party in whose favor

prescription has run. Geiger v. State ex rel. Dept. of Health and Hosp., 01-2206

(La. 4/12/02), 815 So.2d 80, 86, citing Lima v. Schmidt, 595 So.2d 624 (La. 1992).

Upon review, we cannot say that the trial court was manifestly erroneous in

finding that HAZA Food’s filing of its responsive pleadings after seeking an

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extension, its failure to address prescription in the exception of improper venue, its

filing of the exception of prescription a year after the suit was ordered to be

transferred, or its issuance of discovery prior to filing the exception of prescription,

show that it intended to abandon its rights derived from an accrual of prescription.

An exception of prescription is a peremptory exception, which a defendant may

raise at any time, including on appeal or after the close of evidence, but prior to the

submission of the case after trial. La. C.C.P. arts. 927 and 928(B). Ms. Ruffins

has failed to show that HAZA Foods, by its words or actions, clearly, directly, and

absolutely intended to renounce the effects of accrued prescription. See Geiger,

supra. This argument is without merit.

Applicability of the Doctrine of Contra non Valentem

Ms. Ruffins also argues that the doctrine of contra non valentem applies in

this case since HAZA Foods allegedly misrepresented the location of the subject

Wendy’s. She argues that on Wendy’s website, the address for the subject

Wendy’s is listed as “1129 Clearview Pkwy, New Orleans, LA 70121.” She

asserts that she slipped and fell in a Wendy’s and did not know before or

immediately after the fall that HAZA Foods would be the responsible party. She

argues that she relied on this misrepresentation when filing suit in Orleans Parish.

Louisiana jurisprudence has long recognized the doctrine of contra non

valentem as a means of suspending the running of prescription. Wells v. Zadeck,

11-1232 (La. 3/30/12), 89 So.3d 1145, 1150. Contra non valentem non currit

praescriptio means that prescription does not run against a person who could not

bring his suit. Id., citing Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.

1992). Generally, the doctrine of contra non valentem suspends prescription when

the circumstances of the case fall into one of four categories: 1) where there is

some legal cause which prevented the court or its officers from taking cognizance

of and acting on the plaintiff’s actions; or 2) where there is some condition coupled

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with the contract or coupled with the proceedings which prevented the plaintiff

from suing or acting; or 3) where the defendant has done some act effectually to

prevent the plaintiff from availing himself of his cause of action; or 4) where the

cause of action is not known or reasonably knowable by the plaintiff, even though

his ignorance is not induced by the defendant. Tenorio v. Exxon Mobil Corp., 14-

814 (La. App. 5 Cir. 4/15/15), 170 So.3d 269, 274-75, writ denied, 15-1145 (La.

9/18/15), 178 So.3d 149.

Ms. Ruffins relies on the third category of the doctrine of contra non

valentem—where the defendant has done some act effectually to prevent the

plaintiff from availing himself of his cause of action—to argue that prescription

was suspended in this case. This category is implicated only when: (1) the

defendant engages in conduct which 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

(La. 10/19/10), 48 So.3d 234, 252.

Upon review, we cannot say that the trial court was manifestly erroneous in

finding that the doctrine of contra non valentem did not apply in this case. Ms.

Ruffins submits that the website printout that lists the address of the subject

Wendy’s as being on Clearview Parkway in “New Orleans” is sufficient proof to

defeat the exception of prescription. The trial court apparently found, however,

that HAZA Foods did nothing that prevented Ms. Ruffins from conducting further

investigation to discover and confirm the parish in which the subject Wendy’s is

located. As the trial court stated at the hearing, “Clearview’s not even close to the

[Orleans] parish line.” This incorrect website address apparently posted

inadvertently by a third party not involved in this litigation surely did not prevent

Ms. Ruffins from discovery and confirmation of the proper address of the subject

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Wendy’s. The evidence simply does not support the claim that HAZA Foods acted

in any way to prevent Ms. Ruffins from pursuing her cause of action in the proper

venue. Thus, the trial court correctly found that the doctrine of contra non

valentem is not applicable to the particular facts and circumstances present in this

case. This argument is likewise without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment which

sustained defendant’s peremptory exception of prescription and dismissed

plaintiff’s claims against defendant with prejudice.

AFFIRMED

21-CA-619 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 25, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-619
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
DASHAWN P. HAYES (APPELLANT) DEAN M. ARRUEBARRENA (APPELLEE)

MAILED
ALEXANDER B. JOHNSON (APPELLEE)
MEGAN A. HAYNES (APPELLEE)
MISHA M. LOGAN (APPELLEE)
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