Kirk Richard v. Kimberly Babin Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-464

KIRK RICHARD, ET AL.

VERSUS

KIMBERLY BABIN RICHARD, ET AL.

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 114,461-B
HONORABLE PAUL JOSEPH DEMAHY, DISTRICT JUDGE

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Chief Judge Ulysses Gene Thibodeaux and Sylvia R. Cooks, John
D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Cooks, J., concurs and assigns written reasons.
Saunders, J., concurs in part, dissents in part, and assigns written reasons.

Allen A. Krake
Samuel D. Abraham
Dina F. Domangue
Attorney at Law
P.O. Drawer 2309
Lafayette, LA 70502-2309
(337) 234-4523
Counsel for Plaintiff/Appellant:
Kirk Richard

Elizabeth Ann Dugal
Attorney at Law
P. O. Box 2885
Lafayette, LA 70502-2885
(337) 237-2535
Counsel for Defendant/Appellee:
Kimberly Babin Richard

Richard Allen Spears
Attorney At Law
101 Taylor Street
New Iberia, LA 70560
(337) 367-1960
Counsel for Defendant/Appellee:
Geraldine Babin

James “Buddy” Caldwell
Charles T. Cravins
Frank P. Trosclair, Jr.
Office of Attorney General
P. O. Drawer 1149
Opelousas, LA 70571-1149
(337) 948-3007
Counsel for Defendants/Appellees:
Iberia Parish Office of Community Services
State of La., DSS, OCS
Jannenne Trahan
Brandi Derouen
Shanequa Keal-Lewis

PETERS, J.

Kirk Richard appeals the trial court’s grant of an exception of prescription that

had the effect of dismissing all of his claims for damages against the State of

Louisiana Department of Social Services, Office of Community Services; its Iberia

Parish office; and three of its Iberia Parish employees: Jannenne Trahan, Brandi

Derouen, and Shanequa Keal-Lewis (hereinafter referred to collectively as “the DSS

defendants”).1 For the following reasons, we affirm the trial court’s judgment in part,

reverse the trial court’s judgment in part, and remand this matter to the trial court for

further proceedings.

DISCUSSION OF THE RECORD

This litigation arises from complaints by Mr. Richard’s former wife to the

Iberia Parish Office of Community Services that Mr. Richard sexually abused his two

children. Mr. Richard’s petition for damages asserts that he and Kimberly Babin

Richard were married on July 14, 1990, and divorced on November 14, 2006. The

petition further asserts that two children, S.R. (born May 23, 2001) and Z.R. (born

July 9. 2004),2 were born of the marriage and that as the marriage was coming to an

end, Kimberly Richard and others “began a campaign of false accusations and

manufactured false evidence in order to deprive him of access to his children.” The

petition further asserts that as a result of actions by the DSS defendants, he was

subsequently arrested and falsely imprisoned. According to Mr. Richard’s petition,

the DSS defendants became caught up in his former wife’s campaign to falsely

discredit him and, in doing so, negligently and/or intentionally breached duties owed

to him as a part of their investigative obligations.

1
Mr. Richard named other parties as defendants, but the status of those claims is not a part
of the issue now before us.
2
The initials of the children are used to protect the identity of the minor children. Uniform
Rules--Courts of Appeal, Rule 5-2.

The DSS defendants responded to Mr. Richard’s petition by filing, among other

pleadings, a peremptory exception of prescription pursuant La.Code Civ.P. art.

927(A)(1). The trial court took evidence on this exception at an October 2, 2009

hearing and, on October 19, 2009, executed a judgment granting the DSS defendants’

exception of prescription and dismissing Mr. Richard’s claims.

Two of the three individual defendants, Ms. Trahan and Ms. Deroune, testified

at the October 2 hearing. Ms. Trahan, who is the supervisor of the child protection

investigators working in the Iberia Parish Office of Community Services, testified

that the initial investigation of Ms. Richard’s complaints terminated when the office

closed its file on April 12, 2006, after transferring the matter to a foster care unit.

According to Ms. Trahan, her involvement also terminated at that time, and anything

that occurred thereafter occurred within the care and control of the foster care

division of the DSS.

Ms. Trahan testified that a second investigation began on November 19, 2007,

and was closed on May 29, 2008. In that investigation, DSS validated a complaint

against Mr. Richard and reported its findings to the District Attorney’s office, but the

District Attorney’s office took no further action. In fact, the foster care unit never

even became involved in the second investigation.

Ms. Derouen, who is employed in the foster care unit of DSS, testified that her

unit had not been involved in any activity involving Mr. Richard and/or his children

since May of 2008.

The DSS defendants offered two exhibits as evidence: (1) the minutes from an

August 18, 2006 hearing; and (2) the resulting interim stipulated judgment on rules.

These exhibits indicate that the children were adjudicated to be in need of care and

that the parents were to have joint custody. The judgment made no mention of any

2

further duty that the DSS would have in relation to the Richards or the children. Mr.

Richard offered as additional evidence three civil court records: the divorce

proceedings, a proceeding in which Ms. Richard sought to resolve issues of visitation,

and the entire record of the current proceedings.

After the trial court rendered judgment sustaining the DSS defendants’

exception of prescription and dismissing Mr. Richard’s claims for damages against

these defendants, Mr. Richard perfected this appeal. In his sole assignment of error,

he asserts that the trial court erred in granting the exception of prescription.

OPINION

Louisiana Civil Code Article 3492 provides that “[d]elictual actions are subject

to a liberative prescription of one year” and that “[t]his prescription commences to

run from the day injury or damage is sustained.” Additionally, La.Code Civ.P. art.

931 provides in pertinent part that “[o]n the trial of the peremptory exception pleaded

at or prior to the trial of the case, evidence may be introduced to support or controvert

any of the objections pleaded, when the grounds thereof do not appear from the

petition.”

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, 01-2702 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
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.

Carter v. Haygood, 04-646, pp. 8-9 (La. 1/19/05), 892 So.2d 1261, 1267.

In his petition, Mr. Richard couched his causes of action in the guise of a

3

continuing tort. That being the case, prescription was not evident on the face of the

pleadings, and the DSS defendants bore the burden of proof to show that the matters

had prescribed. In attempting to meet that burden of proof, the DSS defendants

established that they were involved in two investigations concerning Mr. Richard and

his children, not one continuous investigation. We find that any cause of action

involving the first investigation has prescribed, but not all of the second.

The DSS defendants presented testimony and documentary evidence to

establish that their first investigation began sometime after the Richards’ marital

problems began and was closed on April 12, 2006. They also presented

documentation to establish that by a trial court judgment in an adjudication hearing,

the children at issue in this litigation were adjudicated in need of care but custody was

returned to the parents without any obligations being imposed on the DSS defendants

for followup care. None of the documentary evidence offered by Mr. Richard

establishes otherwise. Mr. Richard’s June 11, 2009 action for damages was clearly

outside the one-year requirement of La.Civ.Code art. 3492. Therefore, the trial court

did not err in granting the peremptory exception of prescription as to any claims

arising from the first investigation by the DSS defendants.

With regard to the remainder of Mr. Richard’s claims for damages, the third

paragraph of his petition for damages states the following:

On or about June 13, 2008, Petitioner was arrested and charged
with the crime of aggravated rape of his minor children by the Iberia
Parish Sheriff’s Department. Prior to this, Petitioner’s rights to see and
have a relationship with his children were being interfered with as a
result of the gross negligence and arbitrary actions of the Office of
Community Services in Iberia Parish.

(Emphasis added.)

We read this to assert two claims for damages: (1) false arrest; and (2) a continuing

interference with his relationship with his children.

4

With regard to the false arrest claim, we do not find that it has prescribed.

According to Ms. Trahan, the second investigation began on November 19, 2007, and

terminated on May 29, 2008, when her office, after validating the complaint, turned

its findings over to the district attorney’s office and closed its file. However, Mr.

Richard was not arrested for the offense validated by the investigation until June 13,

2008. Mr. Richard did not suffer injury until his arrest occurred. Murray v. Town of

Mansura, 06-355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied, 06-2949 (La.

2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270 (2007).

Therefore, he had one year from that day in which to file suit, and his June 11, 2009

petition was timely. La.Civ.Code art. 3492. We find that the trial court erred in

granting the exception of prescription and dismissing Mr. Richard’s false arrest cause

of action.

The second part of Mr. Richard’s complaint as set forth in the third paragraph

of his petition – his complaint that the DSS defendants negligently and/or

intentionally interfered in his relationship with his children – presents a different

matter entirely. Given the uncontradicted evidence that Ms. Trahan closed her file

on May 29, 2008, and that the DSS defendants took no action after that time, nothing

prevented Mr. Richard from filing suit within the year requirement of La.Civ.Code

art. 3492. Thus, the trial court did not err in granting the exception of prescription

as to this cause of action.

DISPOSITION

For the foregoing reasons, we reverse that portion of the trial court’s judgment

granting the defendants’ exception of prescription and dismissing the false arrest

cause of action and remand the matter to the trial court for further proceedings

relating to that issue. We affirm the trial court’s judgment in all other respects. We

5

assess costs of this appeal equally between the parties and, pursuant to La.R.S.

13:5112(A), set the costs for Kirk Richard at $807.25 and the costs for the State of

Louisiana Department of Social Services, Office of Community Services, its Iberia

Parish office, and the three Iberia Parish employees, Jannenne Trahan, Brandi

Derouen, and Shanequa Keal-Lewis at $807.25.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

6

COURT OF APPEAL

THIRD CIRCUIT

STATE OF LOUISIANA

10-464

KIRK RICHARD, ET AL.

VERSUS

KIMBERLY BABIN RICHARD, ET AL.

COOKS, J., Concurs.

I agree that Plaintiff’s claim for false arrest has not prescribed. I also believe

Plaintiff sets forth allegations which are sufficient to allege a claim for malicious

prosecution which is also timely made.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-464

KIRK RICHARD, ET AL.

VERSUS

KIMBERLY BABIN RICHARD, ET AL.

SAUNDERS, Judge, concurs in part, dissents in part, and assigns written
reasons.

I concur with the majority opinion regarding prescription Richard’s claims

against the DSS with one exception, the viability of Richard’s false imprisonment

claim stemming from the DSS’s second investigation. The standard of reviewing the

findings of fact in this decision is that of manifest error. Carter v. Haygood, 892

So.2d 1261. The trial court ruled that all of Richard’s claims against the DSS were

prescribed because it found, as fact, that the DSS had taken no action and had no

obligation to Richard and his children following May 29, 2008.

The majority opinion states “Mr. Richard was not arrested for the offense

validated by the [second] investigation until June 13, 2008.” This statement indicates

that the DSS’s second investigation was a factor in Richard’s eventual arrest.

However, when reviewing the record before us, there is no evidence that the second

investigation of the DSS was a cause in fact to Richard’s subsequent arrest.

Contrarily, the only evidence adduced at the hearing on DSS’s prescription

exception regarding whether any action of the DSS led to Richard’s arrest on June 13,

2008, is the uncontroverted testimony of Trahan. She testified that the DSS’s second

investigation, in which it validated a complaint against Richard, resulted and ended

when the DSS reported its finding to the District Attorney’s office, and that the

District Attorney’s office took no further action.

Thus, I cannot subscribe to the conclusion that Richard’s false imprisonment

claim is viable against the DSS. According to Richard’s petition, he was arrested by

the Iberia Parish Sheriff’s Office. The record is void of evidence as to who, if

anyone, spurred the sheriff’s office into action. I feel that Richard, in facing the

DSS’s prescription exception, failed to put forth any evidence that the DSS’s second

investigation was a cause in fact of his arrest, while the DSS put forth evidence, via

Trahan’s testimony, that it did nothing to cause Richard’s arrest.

Accordingly, given the standard of review, I would uphold the trial court’s

finding of fact that the DSS had taken no action and had no obligation to Richard and

his children following May 29, 2008. This finding, ultimately leads to what I feel to

be the correct decision, that all of Richard’s claims against the DSS are prescribed.

Thus, I respectfully dissent.

2