Carl Michael Baker Versus Lighthouse Excalibur Insurance Company and Louisiana Insurance Guaranty Association

CARL MICHAEL BAKER NO. 24-CA-325

VERSUS FIFTH CIRCUIT

LIGHTHOUSE EXCALIBUR INSURANCE COURT OF APPEAL
COMPANY AND LOUISIANA INSURANCE
GUARANTY ASSOCIATION STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 92,712, DIVISION "D"
HONORABLE ROCHELLE C. FAHRIG, JUDGE PRESIDING

January 29, 2025

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Timothy S. Marcel

AFFIRMED
JGG
SMC
TSM

COUNSEL FOR PLAINTIFF/APPELLANT,
CARL MICHAEL BAKER
Lucas Morehouse

COUNSEL FOR DEFENDANT/APPELLEE,
LIGA
Tilton R. Hunter, Jr.

GRAVOIS, J.

Plaintiff, Carl Michael Baker, appeals the trial court’s judgment that

sustained the peremptory exception of prescription filed by defendant, Louisiana

Insurance Guaranty Association, and dismissed Mr. Baker’s suit with prejudice.

For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Baker filed suit against Lighthouse Excalibur Insurance Company, his

homeowner’s insurer, and Louisiana Insurance Guaranty Association (“LIGA”) for

damages his property sustained as a result of Hurricane Ida. The petition is

stamped as filed with the Clerk of Court on September 20, 2023.

Subsequently, LIGA filed a peremptory exception of prescription, arguing

that the deadline to file a Hurricane Ida claim was August 29, 2023. LIGA

asserted that Mr. Baker fax-filed his petition on August 16, 2023, but he did not

deliver the original of his petition to the Clerk of Court within seven days of the

fax-filing, as required by La. R.S. 13:850(B). Therefore, the fax-filing of his

petition on August 16, 2023 was without force or effect.

Mr. Baker argued in opposition that because his petition was signed

electronically, the faxed-filed petition received by the Clerk of Court on August

16, 2023 was his “original” petition, and accordingly, upon his timely payment of

the filing fees, he met the requirements of La. R.S. 13:850(B). He argued

defendants received service of his petition and were not adversely affected by his

fax-filing.

Following a hearing, the trial court signed a judgment on January 25, 2024,

sustaining LIGA’s exception of prescription and dismissing Mr. Baker’s suit with

prejudice. This timely appeal followed.

24-CA-325 1

LAW AND ANALYSIS

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

peremptory exception, including prescription. Castello v. Zuppardo, 22-118 (La.

App. 5 Cir. 11/30/22), 353 So.3d 997, 1001. However, if prescription is evident

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

action has not prescribed. Id. 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 a hearing on a peremptory exception of prescription plead prior to trial,

evidence may be introduced to support or controvert the exception. La. C.C.P. art.

931. In the absence of evidence, a peremptory exception of prescription must be

decided upon the facts alleged in the petition with all of the allegations accepted as

true. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619 (La. App. 5 Cir. 5/25/22),

341 So.3d 1259, 1262.

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

prescription turns on whether evidence is introduced. Petty v. KAC Properties

LLC, 23-408 (La. App. 5 Cir. 3/27/24), 384 So.3d 1151, 1154. 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.

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 of review. Id.

While Mr. Baker attached exhibits to his memorandum in opposition to the

exception of prescription, no evidence was introduced at the hearing on the

24-CA-325 2

exception of prescription. Accordingly, we will review the trial court’s judgment

de novo.1

On appeal, Mr. Baker asserts that his petition for damages was signed

electronically using the app “Docu-Sign.” He argues that an electronically signed

document is a legally enforceable document pursuant to La. R.S. 9:2607.2 He

asserts that the petition was then faxed “digitally” to the Clerk of Court “without

the use of paper and ink.” Mr. Baker claims that the faxed petition is the “original”

petition since the petition was not “reduced to paper and ink” until it was printed

for the first time by the Clerk’s Office. He argues that all of the elements of La.

R.S. 13:850(B) were satisfied before the end of the prescriptive period.

The prescriptive period for a property owner to file a suit against its property

insurer for property damages arising from a named storm under a Louisiana

insurance policy is two years. La. R.S. 22:868. The deadline for filing all lawsuits

for damage caused by Hurricane Ida was August 29, 2023. La. R.S. 22:868. See

Green v. Maison Ins. Co., 24-297 (La. App. 5 Cir. 9/4/24), --- So.3d ----, 2024 WL

4033561.

Prescription is interrupted when the obligee commences an action against

the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. A

1
Absent the formal introduction of exhibits at a hearing on an exception of prescription,
those exhibits merely contained in the record or attached to a memorandum in support of an
exception of prescription are not to be considered. See Denoux v. Vessel Mgmt. Servs., Inc., 07-
2143 (La. 5/21/08), 983 So.2d 84, 88. Except as otherwise provided by law, documents attached
to memoranda do not constitute evidence and cannot be considered as such on appeal. Id.
2
La. R.S. 9:2607, entitled “Legal recognition of electronic records, electronic signatures,
and electronic contracts,” provides:
A. A record or signature may not be denied legal effect or enforceability
solely because it is in electronic form.
B. A contract may not be denied legal effect or enforceability solely because
an electronic record was used in its formation.
C. If a law requires a record to be in writing, an electronic record satisfies the
law.
D. If a law requires a signature, an electronic signature satisfies the law.

24-CA-325 3

civil action is commenced by the filing of a pleading presenting the demand to a

court of competent jurisdiction. La. C.C.P. art. 421.

Fax-filing of pleadings is governed by La. R.S. 13:850, which provides in

pertinent part:

A. Until January 1, 2026, any document in a civil action may be filed
with the clerk of court by facsimile transmission. All clerks of
court shall make available for their use equipment to accommodate
facsimile filing in civil actions, and the clerks of court shall not
intentionally turn off or disconnect the equipment used to receive
facsimile filings. Filing shall be deemed complete on the date and
time indicated on the clerk of court facsimile transmission receipt.
No later than on the first business day after receiving a facsimile
filing, the clerk of court shall transmit to the filing party via
facsimile a confirmation of receipt and include a statement of the
fees for the facsimile filing and filing of the original document.
The facsimile filing fee and transmission fee are incurred upon
receipt of the facsimile filing by the clerk of court and payable as
provided in Subsection B of this Section. The facsimile filing shall
have the same force and effect as filing the original document, if
the filing party complies with Subsection B of this Section.

B. Within seven days, exclusive of legal holidays, after the clerk of
court receives the facsimile filing, all of the following shall be
delivered to the clerk of court:

(1) The original document identical to the facsimile filing in
number of pages and in content of each page including any
attachments, exhibits, and orders. A document not identical to
the facsimile filing or which includes pages not included in the
facsimile filing shall not be considered the original document.

(2) The fees for the facsimile filing and filing of the original
document stated on the confirmation of receipt, if any.

(3) A transmission fee of five dollars.

C. If the filing party fails to comply with any of the requirements of
Subsection B of this Section, the facsimile filing shall have no force
or effect. The various district courts may provide by court rule for
other matters related to filings by facsimile transmission.

***

(Emphasis added.)
A party may fax-file a pleading with the same force and effect as filing the

original document, if the requirements of La. R.S. 13:850(B) are met. Higgins v.

Russell, 55,624 (La. App. 2 Cir. 5/22/24), 386 So.3d 1236, 1241. However, a

24-CA-325 4

filing is merely conditional once a fax of a document is transmitted, because a fax-

filed document is only vested with force and effect if each requirement of La. R.S.

13:850(B) is met. Id.

In Petit-Blanc v. Charles, 21-94 (La. 4/20/21), 313 So.3d 1245, 1247, the

plaintiff fax-filed her petition within the prescriptive period, but there was no

evidence that the original petition was placed in “the actual or constructive

possession of the clerk’s office” within the seven-day period. The Louisiana

Supreme Court found that because the plaintiff failed to comply with the

procedures set forth in La. R.S. 13:850(B), her fax-filed petition was without force

or effect and did not serve to interrupt prescription.

The record before us shows the petition for damages stamped as filed with

the Clerk of Court on September 20, 2023. Mr. Baker argues that he did not need

to send the “original” petition to the Clerk of Court within seven days of his fax-

filing of August 16, 2023 since the petition was signed electronically. However,

the statute as currently written does not make a distinction between documents

signed physically from documents signed electronically. The statute clearly states

that for a fax-filing to have “force or effect,” the filing party must deliver the

original document to the Clerk of Court within seven days, exclusive of legal

holidays, after the Clerk of Court receives the fax-filing. It is undisputed that Mr.

Baker did not deliver the original of his petition for damages to the Clerk of Court

until September 20, 2023, well after the seven-day period mandated by La. R.S.

13:850(B), thus making his fax-filing on August 16, 2023 without any force or

effect. Accordingly, the trial court did not err in sustaining the exception of

prescription, as the official filing date of Mr. Baker’s petition is September 20,

2023.

24-CA-325 5

DECREE

For the foregoing reasons, the judgment of the trial court sustaining the

exception of prescription and dismissing Mr. Baker’s suit with prejudice is

affirmed.

AFFIRMED

24-CA-325 6

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
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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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
JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-325
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ROCHELLE C. FAHRIG (DISTRICT JUDGE)
LANTZ SAVAGE (APPELLANT) LUCAS MOREHOUSE (APPELLANT) TILTON R. HUNTER, JR. (APPELLEE)

MAILED
NO ATTORNEYS WERE MAILED