Elmer Washington v. State of La., Dept. of Public Safety

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-154

ELMER WASHINGTON

VERSUS

STATE OF LA., DEPT. OF PUBLIC SAFETY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 13-C-0515-D
HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and Shannon J. Gremillion, Judges.

AFFIRMED.

James Stokes Holt IV
Holt Law Firm
4720 North Boulevard
Baton Rouge, LA 70806
(225) 272-1400
COUNSEL FOR PLAINTIFF/APPELLANT:
Elmer Washington

Jeannie C. Prudhomme
Assistant Attorney General
556 Jefferson St., 4th Floor
Lafayette, LA 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana State Police
State of Louisiana, Department of Public Safety

David Lance Pitre
Pitre Law Office
P. O. Drawer 1260
Eunice, LA 70535
(337) 457-9048
COUNSEL FOR DEFENDANT/APPELLEE:
St. Landry Consolidated Government

EZELL, Judge.

Elmer Washington appeals the decision of the trial court granting an

exception of prescription in favor of the State of Louisiana Department of Public

Safety and Corrections and State Trooper Josh Arvie (collectively referred to as

DPS), thereby dismissing his suit. For the following reasons, we affirm the

decision of the trial court.

On February 4, 2013, Mr. Washington filed suit alleging that Trooper Arvie

stopped him on October 1, 2005, for improper lane usage. As a result of the stop,

Mr. Washington was arrested for and convicted of second-offense DWI. Mr.

Washington states in his petition that Trooper Arvie’s dashboard camera was

inoperable on the night of the stop. He alleged no other actions or conduct on the

part of Trooper Arvie. DPS filed exceptions of prescription and no cause of action,

both of which were granted by the trial court. From that decision Mr. Washington

appeals.

On appeal, Mr. Washington asserts only one assignment of error, that the

trial court erred in granting the exception of prescription. The granting of the

exception of no cause of action has not been appealed and is final.

The one-year liberative prescription period for delictual actions begins to run

from the date the injury or damage is sustained. La.Civ.Code art. 3492. The

―continuing tort‖ doctrine, however, provides an exception to the general rule of

prescription. When tortious conduct and resulting damages are of a continuing

nature, prescription does not begin until the conduct causing the damages has

ended. See Bustamento v. Tucker, 607 So.2d 532, (La.1992). The ―continuing tort‖

doctrine applies only when continuous conduct causes continuing damages, and it

is the continuing nature of the alleged conduct that has the effect of delaying the

commencement of prescription. Still, ―for the continuing tort doctrine to apply

both the tortious conduct and the resulting damages must be continuous.‖ Id. at

537 (emphasis ours).

Here, there is no continuing conduct whatsoever. The damages claimed

allegedly arise from Trooper Arvie not recording Mr. Washington’s singular stop

when Mr. Washington was arrested for DWI. No other tortious conduct is alleged

besides this one instance in October of 2005, almost eight years ago. This

assignment of error is entirely devoid of merit. In fact, it is so devoid of merit as to

be frivolous. Counsel for Mr. Washington knew the law required continuous

conduct, as his brief contained language noting that the jurisprudence required any

conduct to be continuous, as well as damages, for the continuing tort doctrine to

apply. Despite this knowledge, counsel for Mr. Washington proceeded to cause

delay with this utterly worthless appeal. Making this appeal of even less value,

had we somehow found in favor of Mr. Washington and reversed the trial court on

the prescription issue, his case would still be dismissed with prejudice because he

did not even appeal the trial court’s granting of DPS’s exception of no cause of

action. Had DPS sought sanctions for frivolous appeal, they would have been

gladly and freely granted.

For the above reasons, the judgment of the trial court is hereby affirmed.

Costs of this appeal are hereby assessed against Mr. Washington.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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