Andrew Joseph Cariere v. The Kroger Store

Judgment rendered August 14, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 52,846-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ANDREW JOSEPH CARIERE Plaintiff-Appellant

versus

THE KROGER STORE Defendant-Appellee

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 579,031

Honorable Ramon Lafitte, Judge

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ANDREW JOSEPH CARIERE Plaintiff-Appellant, In
Proper Person

THOMAS, SOILEAU, JACKSON, Counsel for Defendants-
BAKER & COLE, L.L.P. Appellees, The Kroger
By: Steven E. Soileau Store and Michael
Schmidt

*****

Before WILLIAMS, PITMAN, and GARRETT, JJ.

PITMAN, J.

Plaintiff-Appellant Andrew Joseph Cariere appeals the trial court’s

granting of exceptions filed by Defendant-Appellee The Kroger Company

(“Kroger”). For the following reasons, we affirm.

FACTS

This case was previously before this court in Cariere v. The Kroger

Store, 50,637 (La. App. 2 Cir. 11/16/16), 208 So. 3d 987. This court

provided the following facts of the case and procedural history:

Andrew Cariere entered a Kroger grocery store in Shreveport,
Louisiana, on August 22, 2013, and as he exited the store, he
was detained by a store employee for allegedly shoplifting. . . .
He was turned over to the police and arrested. Cariere was
ultimately charged with theft-shoplifting in Shreveport City
Court. . . . The record reflects that the charges were ultimately
dismissed.

As a result of this incident, Cariere filed suit against Kroger
making claims of assault, battery, torture, defamation, false
arrest, and false imprisonment. . . . Subsequently, Kroger filed
a motion for summary judgment on the grounds that Cariere
could not prove the elements of battery, assault, torture,
defamation, false arrest, and false imprisonment. . . . Cariere
opposed Kroger’s motion for summary judgment alleging
several disputed material facts, which Kroger maintains
contradicted his deposition testimony. A hearing was held on
the motion, and Kroger’s summary judgment was granted in
part, denied in part. The trial court dismissed Cariere’s claims
of assault, torture, defamation, false arrest, and false
imprisonment, but ruled that an issue of material fact existed
regarding Cariere’s battery claim.

This court affirmed the judgment of the trial court, finding that there

were questions of material fact as to whether Kroger’s employee’s actions

constituted reasonable force. This court found there was no evidence that

would indicate Kroger assaulted, tortured, falsely arrested, falsely

imprisoned or defamed Cariere and that he failed to carry his burden to

prevent the granting of summary judgment.

On February 22, 2017, a trial was held on Cariere’s battery claim.

The trial court granted Kroger’s motion for involuntary dismissal. On

April 6, 2017, the trial court signed a judgment dismissing with prejudice

Cariere’s claims against Kroger. It stated that Cariere failed to prove by a

preponderance of the evidence that unreasonable force was used against him

and that he failed to prove damages.

On April 12, 2017, Cariere filed a motion for new trial. He

complained of intentional and conspiratorial actions by employees of the

First Judicial District Court, the Shreveport Police Department, and by

Kroger and its attorneys that resulted in the loss of his due process rights. A

hearing on this motion was held on June 19, 2017, and the trial court denied

his motion in open court.1 On July 10, 2017, the trial court filed a judgment

denying the motion for new trial.

On July 16, 2018, Cariere filed a petition to annul the February 22,

2017 judgment for fraud and ill practices. He alleged willful acts that

caused him injury and breaches of good faith and fiduciary duties by officers

of the court, public officials and employees of the City of Shreveport, the

Shreveport Police Department, Kroger’s employees and Kroger’s attorneys.

He stated that he raised these allegations in a separate lawsuit, i.e., Docket

No. 607,091, and requested that the trial court allow the prosecution of the

causes of action in his new lawsuit.

1
Also taken up at this hearing was a motion to revoke Cariere’s pauper status
filed by Kroger’s counsel, who alleged that Cariere’s frivolous filings and requests for
30 subpoenas were an abuse of the judicial system. Noting that Cariere had filed
14 lawsuits, the trial court stated, “I am not going to revoke your status, but if you file
anything close to what has happened here today, I will revoke it and order that you pay
everything from day one including all those subpoenas that were just issued.”
2

On July 23, 2018, Kroger filed exceptions of no right of action, no

cause of action and prescription. It stated that Cariere had no right or cause

of action because he filed his petition to annul under the same docket

number as the judgment he complained of, i.e., Docket No. 579,031, rather

than in a new and separate proceeding. Regarding the exception of

prescription, Kroger stated that more than one year had passed since Cariere

knew or should have known of the alleged fraud or ill practices.

On December 26, 2018, Cariere filed an opposition to Kroger’s

exceptions. He contended that his petition was not untimely because the

judgment denying his motion for new trial was not mailed until July 13,

2017 at the earliest, and he filed his petition to annul on July 16, 2018. He

stated that the deputy clerk of court should have noticed and corrected the

error and assigned a new docket number to his petition to annul.

On January 7, 2019, a hearing was held on Kroger’s exceptions. The

trial court found that Cariere’s petition was untimely and granted Kroger’s

exceptions.2 It also signed a judgment maintaining and granting Kroger’s

exceptions, dismissing with prejudice Cariere’s claims and assessing costs to

Cariere.

Cariere appeals the January 7, 2019 judgment.

DISCUSSION

Timeliness of Petition to Annul

In his first assignment of error, Cariere argues that the trial court erred

in ruling that his petition to annul was untimely. He contends that the trial

court incorrectly treated the date the judgment denying his motion for new

2
The trial court also rejected a second request by Kroger’s attorney to revoke
Cariere’s pauper status.
3

trial was mailed, i.e., July 12, 2017, as the starting of the one-year period to

file the petition to annul. He states that it was not until after the February

22, 2017 trial that he discovered inconsistencies in the medical records of his

physician who testified at trial. He contends that he filed his July 16, 2018

petition to annul within one year of discovering the inconsistencies and the

actions of Kroger that formed the basis of his petition to annul.

Kroger argues that the trial court correctly granted the exceptions of

no right of action and prescription. It contends that Cariere’s claims based

upon fraud and ill practices prescribed because more than one year had

passed from the time he was aware of the claims to the time he filed the

petition to annul.

A final judgment obtained by fraud or ill practices may be annulled.

La. C.C.P. art. 2004(A). An action to annul a judgment on these grounds

must be brought within one year of the discovery by the plaintiff in the

nullity action of the fraud or ill practices. La. C.C.P. art. 2004(B).

The burden of proof is on the party seeking the nullity to establish that

the action was brought within one year of the discovery of fraud or ill

practices. Burkett v. Prop. of Douglas, 575 So. 2d 888 (La. App. 2 Cir.

1991), citing Gennuso v. State, 339 So. 2d 335 (La. 1976). The one-year

limitation of La. C.C.P. art. 2004(B) is considered a period of peremption

rather than prescription. See Burkett v. Prop. of Douglas, supra.

Appellate review of the record following a hearing on exceptions is

governed by manifest error when evidence has been introduced at the

hearing. Cooksey v. Heard, McElroy & Vestal, L.L.P., 44,761 (La. App.

2 Cir. 9/23/09), 21 So. 3d 1011.

4

In the case sub judice, the trial court did not err in granting Kroger’s

exception of prescription, although the time limitation in La. C.C.P.

art. 2004(B) is a peremptive period, not a prescriptive one. The inquiry in

this case is whether Cariere filed his July 16, 2018 petition to annul within

one year of when he discovered the alleged fraud or ill practices. A review

of the record demonstrates that he did not file the petition within one year of

the alleged discovery. The facts forming the basis for Cariere’s allegations

occurred between 2014 and the February 22, 2017 trial on his battery claim.

They were raised in letters to the trial court and Kroger and in his April 12,

2017 motion for new trial. Using the date of his motion for new trial as the

very latest date that Cariere knew that he had a cause of action under La.

C.C.P. art. 2004, his claims are clearly preempted. Therefore, the trial court

did not commit manifest error in granting Kroger’s exception of

prescription.

Accordingly, this assignment of error lacks merit.

New Action

In his second assignment of error, Cariere argues that the trial court

erred in ruling that his petition filed in Docket No. 607,091 was not itself a

timely petition to annul. Kroger argues that while the lawsuit in Docket

No. 607,091 might be deemed a petition to annul, it is not before the court

on appeal and has no bearing on whether the petition to annul in Docket

No. 579,031 was filed properly or timely.

Any arguments made by Cariere about his claims asserted in Docket

No. 607,091 are not properly before this court and will not be addressed by

this court.

5

Pauper Status and Sanctions

Kroger argues that Cariere’s pauper status should be revoked and/or

that other sanctions should be imposed against him. It contends that Cariere

has abused the integrity of the judicial process with his frivolous pleadings.

The trial court denied two requests made by Kroger’s counsel to

revoke Cariere’s pauper status. Although we find that Cariere’s filings are

frivolous, we decline to interfere with the trial court’s exercise of discretion

on these rulings. We do note that, although declining to revoke Cariere’s

pauper status, the trial court did not relieve Cariere of the responsibility of

payment of costs simply because he was granted pauper status, and it

assessed all costs to him. Although not liable for the advancement of costs

or as they accrue, an indigent party may ultimately be responsible for the

cost of an unsuccessful lawsuit. La. C.C.P. arts. 5185–5188; Matlock v.

Gen. Motors Corp., 584 So. 2d 1190 (La. App. 2 Cir. 1991).

Accordingly, we order that Cariere pay all costs incurred on appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of

exceptions filed by Defendant-Appellee The Kroger Company. Costs of this

appeal are assessed to Plaintiff-Appellant Andrew Joseph Cariere, in

accordance with La. C.C.P. art. 5188.

AFFIRMED.

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