Randy Petty Versus Kac Properties LLC, Keith Couvillian, and Xyz Insurance Company

RANDY PETTY NO. 23-CA-408

VERSUS FIFTH CIRCUIT

KAC PROPERTIES LLC, KEITH COURT OF APPEAL
COUVILLIAN, AND XYZ INSURANCE
COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 832-873, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

March 27, 2024

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Scott U. Schlegel

REVERSED AND REMANDED
SUS
FHW
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
RANDY PETTY
Robert A. Pearson

COUNSEL FOR DEFENDANT/APPELLEE,
KAC PROPERTIES LLC AND KEITH COUVILLIAN
Michael D. Cangelosi
Kate C. Casanova

SCHLEGEL, J.

In this case for recovery of property damages, plaintiff/appellant, Randy

Petty, appeals the trial court’s April 27, 2023 judgment, which granted the

exception of prescription filed by defendants/appellees, KAC Properties, LLC and

Keith Couvillion, and dismissed plaintiff’s claims with prejudice. For the

following reasons, we reverse the trial court’s judgment and remand for further

proceedings.

Facts and Procedural History

On September 13, 2022, Mr. Petty filed a petition for damages asserting that

KAC Properties or Mr. Couvillion owned property next to Mr. Petty, which had a

large tree that had been neglected and was in terrible condition. The petition

alleged that on or about August 29, 2021, Hurricane Ida made landfall in Jefferson

Parish, Louisiana, and that Mr. Petty evacuated as a result of the recommendations

of state officials. The petition further alleged that on September 17, 2021, Mr.

Petty was able to return to inspect his property, where he found that the tree had

fallen on his property causing damage to the house and fence.

On November 29, 2022, defendants filed an exception of prescription

asserting that the one-year prescriptive period for torts applied, and that Mr. Petty

should have filed his petition by August 29, 2022, within one year of Hurricane Ida

hitting landfall. Defendants asserted that plaintiff’s claims were prescribed on the

face of the petition.

In response, Mr. Petty argued that he and his family evacuated from the

storm from their primary residence in Baton Rouge, and did not get back to the

property until September 17, 2021. He argued that under La. C.C. art. 3493, the

prescriptive period for damages to immovable property is one year, which runs

from the date damages were sustained or from the date the owner of the damaged

property acquired, or should have acquired, knowledge of the damage. He further

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argued that the prescriptive date of La. C.C. art. 3493 is triggered by actual or

constructive knowledge of the damage, which in this case would have been

September 17, 2021 when he returned home, resulting in a prescription date of one

year after his return to the property on September 17, 2022. Thus, Mr. Petty

asserts his petition filed on September 13, 2022 was timely filed.

Following a hearing, the district court entered judgment granting defendants’

exception of prescription on the grounds that Mr. Petty had constructive

knowledge of the alleged damage caused by Hurricane Ida on August 29, 2021.

This timely 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. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619

(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262. 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. Id., citing 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. Prescriptive statutes are strictly construed

against prescription and in favor of the obligation sought to be enforced. Burke v.

Cohen, 19-544 (La. App. 5 Cir. 5/28/20), 296 So.3d 1231, 1236.

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.” Ruffins, 341 So.3d at 1262,

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citing Woods, 102 So.3d at 978. In the absence of evidence, the exception of

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

accepted as true. Ruffins, 341 So.3d at 1262. But the latter principle applies only

to properly-pleaded material allegations of fact, as opposed to allegations deficient

in material detail, conclusory factual allegations, or allegations of law. Id.

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

prescription turns on whether evidence is introduced. Id. 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. Id. at 1263.

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.

Louisiana law establishes that delictual actions are subject to a liberative

prescription of one year, which commences to run from the day injury or damage is

sustained. La. C.C. art. 3492. In addition, La. C.C. art. 3493 provides: “When

damage is caused to immovable property, the one year prescription commences to

run from the day the owner of the immovable acquired, or should have acquired,

knowledge of the damage.”

No evidence was introduced at the trial court hearing. Thus, the court

reviews the trial court’s judgment de novo, and accepts the facts alleged in the

petition as true.

Mr. Petty argues that the trial court committed manifest error in failing to

find that prescription was suspended under the doctrine of contra non valentem

because it is uncontroverted that Mr. Petty did not discover the damage to his

property until September 17, 2021, and thus his claim was timely when it was filed

on September 13, 2022. Plaintiff further contends that it is erroneous to assess an

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August 29, 2022 prescription date, on the premise that he should have known that

damage occurred on that date due to his knowledge of a hurricane making landfall.

In this case, although the petition references Hurricane Ida making landfall

on or about August 29, 2021, the petition does not actually allege a specific date

when the tree fell and damaged his property. And the defendants did not introduce

evidence as to when the damage occurred. Furthermore, plaintiff alleged in his

petition that the fallen tree was already in decay and likely to fall at any time.

Because prescription is not evident on the face of the pleadings, the burden

did not shift from defendants to plaintiff to show that the action had not prescribed.

And the court cannot infer that Mr. Petty had constructive knowledge of an August

29, 2022 prescription date based solely upon the fact that a hurricane made landfall

on that date. Considering that prescription statutes are to be strictly construed

against prescription, we find that the trial court erred in granting defendants’

exception of prescription. It is uncontroverted that Mr. Petty discovered the

damage to his property on September 17, 2021

Accordingly, the judgment of the trial court sustaining defendants’ exception

of prescription is reversed, and the case is remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

23-CA-408 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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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
MARCH 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-408
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
KATE C. CASANOVA (APPELLEE) MICHAEL D. CANGELOSI (APPELLEE)

MAILED
JOELANN S. ROUSELL (APPELLANT) ROBERT A. PEARSON (APPELLANT)
ATTORNEY AT LAW ATTORNEY AT LAW
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BUILDING 6-1 NEW ORLEANS, LA 70131
GRETNA, LA 70056