Pauline Mitchell v. Father Robert Limoges

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-832

PAULINE MITCHELL, ET AL.

VERSUS

FATHER ROBERT LIMOGES, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 915238
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and J. David Painter,
Judges.

AFFIRMED.

Richard Creed, Jr.
8017 Jefferson Highway
Wolfe’s Creek - Suite B3
Baton Rouge, LA 70809
Counsel for Plaintiffs-Appellants:
Pauline Mitchell, et al.

Charles W. Schmidt, III
Janet L. White
601 Poydras Street, Suite 2300
New Orleans, LA 70130
Counsel for Defendants-Appellees:
Father Robert Limoges, et al.

PAINTER, Judge.

Plaintiffs, Pauline Mitchell, Frank Mitchell, Jr., Priscilla Williams, and the

Estate of James Williams, appeal the trial court’s judgment sustaining the exception

of prescription on behalf of Defendants, Father Robert Limoges, The Roman Catholic

Church for the Diocese of Lafayette, Bishop Gerald L. Frey, Our Lady of Victory

Parish, The Roman Catholic Church, Certain Underwriters at Lloyd’s of London, and

the Interstate Insurance Company. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, in their original petition filed November 6, 1991, alleged one or

more acts of sexual abuse by Father Limoges upon the minor children, Frank

Mitchell, Jr. and James Williams. The petition did not specify the dates on which the

alleged abuse occurred, but instead alleged that the abuse occurred sometime during

the years 1980 through 1982 and that Plaintiffs did not learn of the damages until

May of 1991. After James Williams died, Plaintiffs filed an amended petition

alleging his wrongful death.

On May 16, 2002, Defendants filed an exception of prescription which was

heard on August 16, 2004. The following evidence and testimony was introduced by

Defendants without objection: (1) petition for damages filed November 6, 1991; (2)

transcript of the deposition of James Williams; (3) death certificate for Joseph Brown

Sampy, showing date of death as August 19, 1981; (4) excerpts from the transcript

of the deposition of Priscilla Williams; (5) excerpts from the transcript of the

deposition of Frank Mitchell, Jr.; and (6) excerpts from the transcript of the

deposition of Pauline Mitchell. Defendants alleged that this evidence showed that the

abuse occurred in the fall of 1981 and that the boys told their parents about the abuse

the day after it happened. According to all of the deposition testimony, the alleged

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abuse occurred right after Ms. Williams and her family moved back to New Iberia

from Lafayette. The move took place when Ms. Williams’ boyfriend, Joseph Brown

Sampy, died. The evidence established that Mr. Sampy died on August 19, 1981.

Plaintiffs sought to introduce live testimony of Dr. Cary Rostow, Priscilla

Williams, Frank Mitchell, Jr., and Pauline Mitchell. Counsel for Plaintiffs indicated

that the testimony he sought to introduce would not be in variance from the

deposition testimony as far as what was disclosed to the parents the next day.

Counsel for Plaintiffs explained that what he intended to show with the testimony was

that “they knew very little and did not know the extent of what occurred.” The trial

judge took judicial notice of when the suit was filed, disallowed additional testimony

by Plaintiffs as cumulative, instructed Plaintiffs’ counsel to proffer the testimony by

affidavit, and granted the exception of prescription. Plaintiffs did not proffer any

affidavits, and a judgment granting the exception of prescription and dismissing the

suit with prejudice, at Plaintiffs’ cost, was signed on August 20, 2004.

On September 20, 2004, Plaintiffs filed a motion to recuse the trial judge and

to amend the judgment. Plaintiffs alleged that the judgment was not circulated among

counsel and was incorrect in stating that it was based on evidence presented to the

court since Plaintiffs were not allowed to present evidence. Both motions were

denied.

Plaintiffs now appeal and assert that the trial judge erred in: (1) refusing to

allow the testimony of Dr. Rostow (Plaintiffs’ proposed expert witness), Ms.

Mitchell, Frank Mitchell, Jr., and Ms. Williams; (2) refusing to allow the proffer of

the testimony; (3) granting the exception of prescription; (4) refusing to recuse

himself; and (5) refusing to amend the judgment.

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DISCUSSION

Evidentiary Matters

Plaintiffs first complain that the trial judge erred in excluding the testimony of

Dr. Rostow, Ms. Mitchell, Frank Mitchell, Jr., and Ms. Williams as cumulative. At

the hearing on the exception, the following colloquy between Plaintiffs’ counsel and

the trial judge occurred:

THE COURT: What do you have to offer, Mr. Creed? You’re
going to offer some testimony?

MR. CREED: Yes, Your Honor. I have –

THE COURT: On a limited point?

MR. CREED: Correct, Judge, –

THE COURT: All right.

MR. CREED: – just on this issue of discovery and when they were
made – the, you know, the full extent of these events
were made known to the plaintiffs.

THE COURT: Will that testimony be at variance with what’s in the
deposition, the deposition testimony?

MR. CREED: Not in variance, Judge, but in addition to since, you
know, this is the issue before the Court. There are
some things that will come out in testimony that are
not in the deposition, but I don’t think there’s going
to be any variance from the deposition, as far as
what was disclosed that next day, which we talked
about in chambers. No, there won’t be, Judge.

THE COURT: It won’t be a variance?

MR. CREED: There won’t be any variance.

The admission of cumulative evidence is at the trial court’s discretion.

Frederick v. Woman’s Hosp. of Acadiana, 626 So.2d 467 (La.App. 3 Cir. 1993), writ

denied, 633 So.2d 169 (La. 1994). Here, Plaintiffs admitted that the testimony sought

to be introduced was the same as that which was introduced by means of the

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deposition transcripts. Thus, we find no abuse of discretion in the trial judge’s

exclusion of the testimony as cumulative.

Plaintiffs next complain that the trial judge refused to allow them to proffer the

excluded testimony. Louisiana Code of Civil Procedure Article 1636(A) provides:

“When the court rules against the admissibility of any evidence, it shall either permit

the party offering such evidence to make a complete record thereof, or permit the

party to make a statement setting forth the nature of the evidence.” The opportunity

to proffer the excluded evidence is mandatory, “but the trial court has the discretion

to receive the proffer in full, or to require a statement setting forth the nature of

the evidence.” Gulf Outlet Marina, Inc. v. Spain, 02-1589, p. 3 (La.App. 4 Cir.

6/25/03), 854 So.2d 386, 389, writ denied, 03-2075 (La. 11/7/03), 857 So.2d 497.

The following exchange took place at the hearing:

MR. CREED: . . . and what we intend to show the Court with the
testimony is that they knew very little and they did
not know the extent of what had occurred.

....

THE COURT: Well, I mean, listen, how can you not understand the
gravity, when I’m looking at Ms. Pauline Mitchell’s
deposition on Page 49: “And your sister had told
you that the priest had undressed in front of Frank
and made him touch his penis”
“You’re darn right.”

....

THE COURT: I mean, I’ll let you make or perfect your record so
that you can take it up and have the Third Circuit
look at it. Okay?

....

MR. CREED: – that I have four witnesses who are here, Judge. I
feel I need to proffer their testimony, and unless the
Court tells me –

....

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THE COURT: I’m going to let you proffer it by affidavit. Okay?
Submit an affidavit of what you intent to establish
with them. It’s cumulative. I’ve got what I need.
I’ve got enough here. What –

MR. CREED: I understand, Judge, –

The record does not contain any affidavits submitted by Plaintiffs by proffer.

The only affidavit is that of Plaintiffs’ counsel which was attached to their brief on

appeal. We are unable to consider that affidavit, as it was not introduced as proffered

evidence at trial. We find that the trial judge did comply with La.Code Civ.P. art.

1636 and effectively allowed Plaintiffs to make the equivalent of a statement setting

forth the nature of the excluded testimony by allowing Plaintiffs to make the proffer

by affidavit. Additionally, even if we were to find that the trial judge did not allow

Plaintiffs to make their proffer, we would consider it to be harmless error under the

facts of this case. See Gulf Outlet Marina, 854 So.2d 386 (citing Gordon v. Levet,

96-600 (La.App. 5 Cir. 1/15/97), 688 So.2d 57). We have already found that the trial

judge did not abuse his discretion in excluding the testimony as cumulative. Thus,

even if we had the proffered testimony appropriately before us, we would not

consider it. Accordingly, we find this argument is without merit.

Exception of Prescription

We review the trial judge’s granting of the exception of prescription using the

manifest error standard of review. In re Evans, 05-94 (La.App. 3 Cir. 6/8/05), 906

So.2d 683. In Evans, we noted that the Louisiana Supreme Court, in Carter v.

Haygood, 04-646, pp. 8-9 (La.1/19/05), 892 So.2d 1261, 1267, has recently stated:

Ordinarily, the exceptor bears the burden of proof at the trial of the
peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02),
828 So.2d 502, 508. However, if prescription is evident on the face of
the pleadings, the burden shifts to the plaintiff to show the action has not
prescribed. Campo, 01-2707 at p. 7, 828 So.2d at 508; Williams v.
Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386
(La.1993). If evidence is introduced at the hearing on the peremptory

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exception of prescription, the district court's findings of fact are
reviewed under the manifest error-clearly wrong standard of review.
Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). If the
findings are reasonable in light of the record reviewed in its entirety, an
appellate court may not reverse even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently. Id. at 882-83.

Id. at 686.

Plaintiffs argue that their action is not prescribed for two reasons. First,

Plaintiffs assert that Father Limoges was a caretaker and that La.Civ. Code art. 3469

applies such that prescription was suspended until the age of majority. Second,

Plaintiffs assert that the doctrine of contra non valentem applies such that prescription

was suspended because the cause of action was not reasonably knowable. We find

both of these arguments to be without merit.

Louisiana Civil Code Article 3469 provides:

Prescription is suspended as between: the spouses during
marriage, parents and children during minority, tutors and minors during
tutorship, and curators and interdicts during interdiction, and caretakers
and minors during minority.

A "caretaker" means a person legally obligated to provide or
secure adequate care for a child, including a tutor, guardian, or legal
custodian.

Plaintiffs rely on Johnson v. The Roman Catholic Church for the Archdiocese

of New Orleans, 02-0429 (La.App. 1 Cir. 2/14/03), 844 So.2d 65, writ denied, 03-730

(La. 5/9/03), 843 So.2d 401, for the proposition that Father Limoges was a caretaker.

However, Plaintiffs admit that there was no long-term spiritual relationship between

the priest and the minors in this case.

The alleged abuse occurred in late 1981 when the boys stayed overnight with

Father Limoges at the rectory. Louisiana Civil Code Article 3469 did not become

effective until January 1, 1983. At the time the alleged abuse occurred, the applicable

prescriptive period was one year and ran against all persons, including minors, unless

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an exception was established by the legislature. See prior La.Civ. Code arts. 3536,

3537, and 3541.

“Prescription commences to run not necessarily on the date the injury occurs

or the damage is sustained, but from the date the affected individual knows or should

have known of the injury or damage sustained.” Doe v. Roman Catholic Church, 94-

1476, p. 8 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076 (La. 11/13/95),

662 So.2d 478 (citations omitted). All of the deposition testimony is clear that Ms.

Mitchell and Ms. Williams knew about the alleged abuse the day after it occurred.

Thus, prescription began to run in 1981. The actions had already prescribed by the

time La.Civ. Code art. 3469 became effective. Even if we agree with Plaintiffs that

Father Limoges was a caretaker, the new prescriptive period supplied by La.Civ.Code

art. 3469 cannot revive an action that had already prescribed under La.Civ.Code art.

3536. Hall v. Hall, 516 So.2d 119 (La.1987).

Plaintiffs further argue that prescription was suspended under the doctrine of

contra non valentem because they were unable to discover the full extent of the

molestation. The deposition testimony shows otherwise. Mr. Williams’ deposition

testimony establishes that he told both his mother, his Uncle Frank, and his Aunt

Pauline (Ms. Mitchell) that the “night when we was sleeping, the priest made us feel

on him and put our mouth on him and he done the same to me. And then he stopped

and then went to sleep.” Ms. Mitchell testified in deposition that her sister, Ms.

Williams, told her that the priest had undressed in front of Frank, Jr. and made Frank,

Jr. touch him. Thus, it is undisputed that the Plaintiffs knew of the alleged sexual

abuse by the priest the day after it occurred. We do not find any reason that Plaintiffs

were prevented from availing themselves of their cause of action and find that their

allegations are insufficient to invoke the doctrine of contra non valentem.

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Motion to Recuse

Plaintiffs also allege that the trial judge was not capable of conducting a fair

and impartial hearing. Their motion to recuse was filed September 20, 2004, and

judgment was signed August 20, 2004. Louisiana Code of Civil Procedure Article

154 provides:

A party desiring to recuse a judge of a district court shall file a written
motion therefor assigning the ground for recusation. This motion shall
be filed prior to trial or hearing unless the party discovers the facts
constituting the ground for recusation thereafter, in which event it shall
be filed immediately after these facts are discovered, but prior to
judgment. If a valid ground for recusation is set forth in the motion, the
judge shall either recuse himself, or refer the motion to another judge or
a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

We find that this issue is not properly before us as Plaintiffs failed to comply with the

proper procedure. Love v. Baden, 478 So.2d 1008 (La.App. 3 Cir. 1985).

Amendment of Judgment

Plaintiffs argue that the judgment did not comply with Rule 9.5 of the Rules

of Court and that the judgment is incorrect in stating that it is based on “evidence and

argument presented to the court by counsel in legal memoranda and during the

proceeding.” We find that the wording of the judgment is accurate and that the trial

judge committed no error in denying the Plaintiffs’ motion to amend the judgment.

DECREE

For the foregoing reasons, we find no error in the trial court’s rulings and

affirm the grant of Defendants’ exception of prescription and the dismissal of

Plaintiffs’ suit with prejudice. All costs of this appeal are assessed to Plaintiffs-

Appellants.

AFFIRMED.

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