Troy Mott v. City of Eunice

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-921 c/w 13-655

TROY MOTT

VERSUS

CITY OF EUNICE, LOUISIANA THROUGH ITS MAYOR, ROBERT
“BOB” MORRIS; CHIEF GARY “GOOSE” FONTENOT IN HIS
CAPACITY AS CHIEF OF POLICE OF EUNICE, LOUISIANA; MICAH
ARCENEAUX, INDIVIDUALLY AND IN HIS CAPACITY AS A EUNICE
POLICE OFFICER; JEREMY IVORY, INDIVIDUALLY AND IN HIS
CAPACITY AS A EUNICE POLICE OFFICER; BILLY McCAULEY, JR.,
INDIVIDUALLY AND IN HIS CAPACITY AS A EUNICE POLICE
OFFICER
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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 10-C-0111-A
HONORABLE JAMES P. DOHERTY, DISTRICT JUDGE

************

J. DAVID PAINTER JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.
AFFIRMED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Michael L. Barras
P. O. Box 11340
New Iberia, LA 70562
COUNSEL FOR PLAINTIFF-APPELLANT:
Troy Mott

John F. Wilkes, III
Joy C. Rabelais
P. O. Box 4305
Lafayette, LA 70502
COUNSEL FOR DEFENDANTS-APPELLEES:
The City of Eunice; Chief James Gary Fontenot, in his official capacity
as Chief of Police of the City of Eunice; Officer Johannes Heinen,
individually and in his capacity as a police officer for the City of Eunice;
and Officer Allorate Frank, individually and in his capacity as a police

officer for the City of Eunice; and Officer Ramone Sonnier, individually
and in his capacity as a police officer for the City of Eunice

Joseph Stamey
P.O. Drawer 1288
Natchitoches, LA 71458
COUNSEL FOR DEFENDANT-APPELLEE:
Michael Perry, individually and in his capacity as a police officer for the
City of Eunice

PAINTER, Judge.

Plaintiff, Troy Mott, appeals the trial court’s dismissal of his claims

against Officers Michael Perry, Johannes Heinen, Ramone Sonnier, and

Allorate Frank pursuant to an exception of prescription. For the following

reasons, we affirm.

FACTS

On January 8, 2010, Plaintiff filed suit naming as defendants the City

of Eunice (Eunice); Gary Fontenot, individually and in his capacity as Chief

of Police for Eunice (the Chief); Micah Arceneaux, individually and in his

capacity as a police officer for the City of Eunice; Jeremy Ivory, individually

and in his capacity as a police officer for the City of Eunice; and Billy

McCauley, Jr., individually and in his capacity as a police officer for the City

of Eunice. He alleged injuries inflicted while the named officers were

arresting him. Answers were filed by the various named defendants

On July 8, 2011, Plaintiff amended and supplemented the original

petition, without leave of court, to add as additional defendants Detective

Michael Perry and Officers Johannes Heine, Ramone Sonnier, and Allorate

Frank. No service of process was requested in connection with this

amendment. Claims concerning an alleged shooting made against Eunice,

the Chief, and Officers McCauley and Ivory were dismissed pursuant to

summary judgment on August 8, 2011. All the claims against McCauley

were dismissed pursuant to a motion for summary judgment.

Over a year later, on November 8, 2012, Plaintiff amended his original

petition, with leave of court, restating the allegations of the original petition

and stating claims against Perry, Heinen, Sonnier, and Frank. Service was

requested for this amendment. On January 14, 2013, Arceneaux was granted

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partial summary judgment dismissing him from liability associated with the

shooting. Heinen, Sonnier, Frank, Arcenaux, Ivory, and McCauley filed

exceptions of insufficiency of citation and service. McCauley filed an

exception of res judicata, and Heinen, Sonnier and Frank filed an exception

of prescription. Perry also filed exceptions of insufficiency of citation and

service and prescription.

The trial court, on January 14, 2013, heard the Exceptions of

Prescription filed by Heinen, Sonnier, and Frank. At that hearing, Plaintiff

stated that he would voluntarily dismiss the first amended petition and was

ordered to do so within three business days of the hearing. The court found,

in written reasons for judgment, that La.R.S. 13:5107(D) was applicable,

that there was not a timely request for service, and that good cause was not

shown for the failure to request service. As a result, the trial court found that

the claims against Heinen, Sonnier, and Frank had prescribed. On February,

14, 2013, the trial court granted Perry’s exception of prescription as well.

Mott appealed, and Eunice, Fontenot, Heinen, Frank, and Sonnier

answered the appeal requesting damages for frivolous appeal.

Prescription

Mott asserts that prescription was interrupted by the timely filing of

the original petition against joint tortfeasors and that the trial court erred in

finding that La.R.S. 13:5107 and La.Civ.Code art. 2324 conflict as applied

to the facts of this case.

Louisiana Revised Statutes 13:5107(D) provides that:

D. (1) In all suits in which the state, a state agency, or political
subdivision, or any officer or employee thereof is named as a
party, service of citation shall be requested within ninety days
of the commencement of the action or the filing of a
supplemental or amended petition which initially names the

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state, a state agency, or political subdivision or any officer or
employee thereof as a party. This requirement may be expressly
waived by the defendant in such action by any written waiver.

(2) If service is not requested by the party filing the action
within that period, the action shall be dismissed without
prejudice, after contradictory motion as provided in Code of
Civil Procedure Article 1672(C), as to the state, state agency, or
political subdivision, or any officer or employee thereof, who
has not been served.

(3) When the state, a state agency, or a political subdivision, or
any officer or employee thereof, is dismissed as a party
pursuant to this Section, the filing of the action, even as against
other defendants, shall not interrupt or suspend the running of
prescription as to the state, state agency, or political
subdivision, or any officer or employee thereof; however, the
effect of interruption of prescription as to other persons shall
continue.

Defendants assert that, because the allegations of the second amended

petition are identical to those of the first amended petition, and because the

failure to serve the first amended petition within the time limit set by La.R.S.

13:5107 was grounds for dismissal of the first amended petition, pursuant to

the provisions of La.R.S. 13:5107(D)(3), the claims against the added

defendants are prescribed. Plaintiff asserts that the court’s reasoning in Cali

v. Cory, 04-1227 (La.App. 4 Cir. 11/3/04), 886 So.2d 648, writ denied, 04-

3155 (La. 2/25/05), 894 So.2d 1153. should apply here and that the statutes

should be interpreted in pari materia to allow the second amended petition

to relate back to the filing of the original petition.

After reviewing the record, the provisions of La.R.S. 13:5107 and

La.Civ.Code art. 2324, and the jurisprudence, we agree with the trial court

that the statutory provisions are in conflict as applied to the particular facts

of this case.

The two statutes conflict in that the application of either would bring a

completely different result from the other under the circumstances of the

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case currently before the court. We note that La.R.S. 13:5107 is the “more

specific statute addressing the more narrow issue of the interruption of

prescription when governmental defendants are involved in the litigation.”

Johnson v. Shafor, 08-2145, p. 0 (La.App. 1 Cir. 7/29/09), 22 So.3d 935,

940, writ denied, 09-1921 (La. 11/20/09), 25 So.3d 812. “Where there

is a conflict between two statutory provisions, the statute that is more

specifically directed to the matter at issue must prevail over the statue that is

more general in character.” Id. We agree with the Johnson court that the

language of La.R.S. 13:5107 “carves out an exception to the general rules of

prescription in favor of the state or its political subdivisions.” Id. (quoting

Kimball v. Wausau Ins. Companies, 04-626, P. 7 (La. App. 5 Cir. 1/25/05),

892 So.2d 690, 693, writ denied, 05-755 (La. 5/6/05), 901 So.2d 1104)

Because the first amended petition was dismissed, prescription was never

interrupted as to the additional defendants, notwithstanding their possible

status as joint or solidary tortfeasors.

Accordingly, we find no error in the decision of the trial court to

dismiss the claims against the additional defendants.

Frivolous Appeal

Defendants answered the appeal requesting damages for frivolous

appeal. However, inasmuch as our examination of the matter reveals a split

among the appellate courts of this state in the treatment of the issues

involved herein, we find that the appeal concerns real and substantial issues.

Therefore, we decline to award damages for frivolous appeal.

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CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to Plaintiff-Appellant, Troy Mott.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-921

TROY MOTT

VERSUS

CITY OF EUNICE, LOUISIANA THROUGH ITS MAYOR, ROBERT
“BOB” MORRIS; CHIEF GARY “GOOSE” FONTENOT IN HIS
CAPACITY AS CHIEF OF POLICE OF EUNICE, LOUISIANA; MICAH
ARCENEAUX, INDIVIDUALLY AND IN HIS CAPACITY AS A EUNICE
POLICE OFFICER; JEREMY IVORY, INDIVIDUALLY AND IN HIS
CAPACITY AS A EUNICE POLICE OFFICER; BILLY McCAULEY, JR.,
INDIVIDUALLY AND IN HIS CAPACITY AS A EUNICE POLICE
OFFICER

THIBODEAUX, Chief Judge, dissenting.

The majority fails to recognize that prescription was already

interrupted against the police officers because of their status as joint tortfeasors.

Louisiana Revised Statutes 13:5107 does not change the status of the officers who

were added as joint tortfeasors. Prescription was interrupted before the first

amended petition was filed and certainly before the second amended petition which

was served. Louisiana Revised Statutes 13:5107 is silent on circumstances where

prescription has already, as here, been interrupted by means other than the filing of

an amending petition.

Contrary to the majority’s assertion, there is no conflict between

La.R.S. 13:5107 and La.Civ.Code art. 2324. The statute does not speak to joint

liability; Civil Code Article 2324 specifically does. Thus, the trial court and the

majority create a conflict where none exists. Because there is no conflict, Johnson

v. Shafor, 08-2145 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, writ denied, 09-1921

(La. 11/20/09), 25 So.3d 812, is not applicable. In my view, Civil Code Article

2324 controls and prescription was interrupted. I would reverse and remand for

further proceedings.

For the foregoing reasons, I respectfully dissent.

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