Eric Dewayne Curtis v. Michels Corporation

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-644
consolidated with 18-876

ERIC DEWAYNE CURTIS

VERSUS

MICHELS CORPORATION, ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. 2017-104
HONORABLE E. DAVID DESHOTELS, JR., DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED.

Allen J. Krouse, III
Suzanne M. Risey
Frilot LLC
1100 Poydras Street, Suite 3700
New Orleans, Louisiana 70163
(504) 599-8000
Counsel for Defendants/Appellants:
Michels Corporation
William Fee

Christian C. Creed
Creed and Creed
1805 Tower Drive
Monroe, Louisiana 71201
(318) 387-5800
Counsel for Plaintiff/Appellee:
Eric DeWayne Curtis

Catherine Leary
Attorney at Law
Post Office Box 472
Westwego, Louisiana 70096
(504) 436-9648
Counsel for Plaintiff/Appellee:
Eric DeWayne Curtis

Michael Hays
Michael Hays Law, PLLC
10000 Memorial Drive, Suite 300
Houston, Texas 77024
(713) 752-8300
Counsel for Plaintiff/Appellee:
Eric Dewayne Curtis

KEATY, Judge.

Michels Corporation and William Fee appeal the trial court’s judgment

granting a peremptory exception of prescription. For the following reasons, the trial

court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

This appeal examines the decretal language contained in a judgment granting

a peremptory exception of prescription. The lawsuit arises from a workplace

accident which occurred on or about February 2, 2016, in Vermont when Eric

Dewayne, Plaintiff herein and a Louisiana domiciliary, claims he was injured due to

the negligence of Michels, Fee, and Vermont Gas Systems, Inc. (VGS). Plaintiff

filed two parallel lawsuits in Vermont and Louisiana against the three defendants.

The Louisiana lawsuit, which was initiated on March 23, 2017 as a Petition for

Damages, is the subject of the instant appeal. The matter was briefly removed to

federal court and subsequently remanded back to state court.

On March 22, 2018, Plaintiff’s workers’ compensation carrier, First Liberty

Insurance Corporation, filed a Petition of Intervention. On April 16, 2018, Michels

and Fee filed an Answer to the intervention and asserted an affirmative defense of

prescription. On July 17, 2018, First Liberty filed a Motion and Order For Voluntary

Dismissal of Michels, Fee, and VGS. On that same day, the trial court granted the

dismissal without prejudice.

With respect to Plaintiff’s original Petition for Damages, Fee filed an Answer

on April 4, 2018. On April 5, 2018, Michels and Fee filed an Exception of

Prescription and sought dismissal with prejudice. VGS filed a Declinatory

Exception of Lack of Personal Jurisdiction on April 16, 2018. VGS filed an

Amended Declinatory Exception of Lack of Personal Jurisdiction on June 1, 2018.

On June 6, 2018, Plaintiff filed an unopposed Motion to Dismiss VGS without

prejudice for lack of personal jurisdiction. On that same day, the trial court issued a

Judgment dismissing Plaintiff’s claims against VGS without prejudice. On June 13,

2018, Plaintiff filed an opposition to Michels’ and Fee’s (hereinafter “Defendants”)

Exception of Prescription along with a Motion to Dismiss his claims against those

Defendants, without prejudice. At the hearing on Defendants’ Exception of

Prescription on June 21, 2018, the trial court noted that Plaintiff’s pending Motion

to Dismiss was “not to be argued, or schedule[d] before the Court” during the instant

hearing. The trial court advised that it would “just go forward with the Peremptory

Exception of Prescription” and proceeded to hear oral arguments from both parties.

At the conclusion of the hearing, the trial court orally ruled as follows:

The Court does find that clearly on the face of the pleadings on the
Petition that more than one year has elapsed since from the accident and
to the time that the petition was filed. . . . So, the Court finds that the
Plaintiffs have failed to show why their matter has not prescribed. And
the Court does grant the Exception of Prescription, pursuant to
Louisiana Civil Code, Article 934, granting judgment in favor of the
exceptor claiming that the matter has prescribed. And therefore, the
matter shall be dismissed. The Court will use the language that is found
in the Article 934. It says the matter shall be dismissed. And the Court
will not comment further from there so as not to influence other courts
and whatever laws might be applicable in other courts.

The following colloquy then occurred between Defendants’ counsel and the

trial court:

MR. KROUSE:

Your Honor, so the record is clear, your ruling today is a
dismissal but you are not going to render it with or without prejudice.
Is that correct?

THE COURT:

The ruling of the Court is to grant your Motion and dismiss the
case pursuant to Article 934.

....

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THE COURT:

The effects of that dismissal, how it plays out in other courts is
for other courts to decide, and for another time.

After orally granting the exception, the parties were instructed to submit a

proposed judgment. Both parties were unable to agree on the language to include

therein, and each submitted their own proposed judgments. On July 17, 2017, the

trial court rendered its own judgment which stated the following:

IT IS ORDERED that Defendants’ Exception of Prescription is
GRANTED, pursuant to Louisiana Civil Code article 934. All claims
against defendants, Michels Corporation and William Fee, asserted
herein are hereby dismissed.

Both Defendants and Plaintiff appealed on July 31, 2018 and September 11, 2018,

respectively. Plaintiff filed an Unopposed Motion to Consolidate on November 13,

2018, in this court noting that the trial court’s Clerk of Court processed the two

appeals separately under different docket numbers. As such, Plaintiff asked that

both appeals be consolidated. On November 14, 2018, this court granted the

unopposed motion and consolidated the instant appeal with the companion case

hereto, Curtis v. Michels Corp., 18-876 (La.App. 3 Cir. __/__/__) (unpublished

opinion).

Defendants assert one assignment of error on appeal, contending that the trial

court erred in failing to dismiss, with prejudice, Plaintiff’s lawsuit in accordance

with La.Code Civ.P. art. 934 and controlling third circuit precedent.

Plaintiff asserts three assignments of error on appeal. In his first assignment

of error, Plaintiff asks, “Did the trial court err or abuse its discretion in declining to

dismiss plaintiff’s Louisiana lawsuit with prejudice?” In his second assignment of

error, Plaintiff asks, “Did the trial court err or abuse its discretion in declining to

dismiss plaintiff’s Louisiana lawsuit without prejudice and/or in failing to include

language which expressly reserves plaintiff’s right to proceed in Vermont?” In his
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final assignment of error, Plaintiff asks, “Are defendants’ arguments on this appeal

barred by the doctrine of collateral estoppel and/or by other legal principles which

militate against rendering two judgments in the same case which are inconsistent

with each other?”

STANDARD OF REVIEW

The applicable standard of review regarding a peremptory exception of

prescription was discussed in Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir.

4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065 (La. 9/11/15), 176 So.3d 1043,

as follows:

The exception of prescription is governed by La.Code Civ.P. art.
927. The standard of review of a grant of an exception of prescription
is determined by whether evidence was adduced at the hearing of the
exception. If evidence was adduced, the standard of review is manifest
error; if no evidence was adduced, the judgment is reviewed simply to
determine whether the trial court’s decision was legally correct.

DISCUSSION

Defendants’ assignment of error and Plaintiff’s first two assignments of error

question whether the trial court should have included certain decretal language in its

judgment. Specifically, Defendants contend the trial court should have included the

phrase “with prejudice” when it granted the exception of prescription. Defendants

ask this court to amend the trial court’s judgment to provide that Plaintiff’s lawsuit

is dismissed with prejudice.

On the other hand, Plaintiff asks this court to enter a judgment which

dismisses his claim “without prejudice” and/or which contains other language

reserving his right to proceed in Vermont in the event that the Vermont court deems

such a procedure permissible under its laws. Plaintiff asks that all costs of the trial

proceedings and this appeal be taxed to Defendants. Plaintiff contends that

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Defendants have not clearly explained the issue on appeal. According to Plaintiff,

the issue is whether his claim is time barred in Vermont, not Louisiana.

At the outset, we note that Defendants’ exception, which the trial court ruled

on, arose from a suit filed by Plaintiff in a Louisiana court. Defendants’ exception

addressed whether Plaintiff’s lawsuit prescribed in Louisiana, not Vermont. As such,

the issue before this court on appeal is whether Plaintiff’s Petition for Damages was

timely filed according to the laws of Louisiana. In his petition, Plaintiff alleges that

he is a Louisiana domiciliary who was injured in Vermont while working in the

course and scope of his employment as a pipe inspector with McDaniel Technical

Services, Inc. Plaintiff claims he was injured by Defendants’ negligence. Plaintiff’s

petition, therefore, asserts a tort, i.e., a delictual action. In Louisiana, “[d]elictual

actions are subject to a liberative prescription of one year” which “commences to

run from the day injury or damage is sustained.” La.Civ.Code art. 3492.

The objection of prescription is raised by the peremptory exception. La.Code

Civ.P. art. 927(A)(1). Louisiana Code of Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory
exception may be removed by amendment of the petition, the judgment
sustaining the exception shall order such amendment within the delay
allowed by the court. If the grounds of the objection raised through the
exception cannot be so removed, or if the plaintiff fails to comply with
the order to amend, the action, claim, demand, issue, or theory shall be
dismissed.

“Generally, the burden of proof lies on the party pleading the exception of

prescription. However, if it is apparent from the face of the pleadings that

prescription has occurred, the burden shifts to the plaintiff to show that the action

has not prescribed.” Allain v. Tripple B Holding, LLC, 13-673, pp. 9-10 (La.App. 3

Cir. 12/11/13), 128 So.3d 1278, 1285 (citation omitted).

In his petition, Plaintiff alleged that the injury-causing accident occurred on

February 2, 2016. Plaintiff’s petition was filed over one year later on March 23,
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2017, in violation of La.Civ.Code art. 3492. As such, his action appears prescribed

on the face of the pleadings. Therefore, Plaintiff had the burden to prove that his

action had not prescribed.

Before reviewing whether Plaintiff met the burden of proving that his action

had not prescribed, we must address whether any evidence was offered at the hearing

on the exception. The transcript of the hearing indicates that Plaintiff’s counsel

stated the following:

We had identified exhibits in our memorandum and I would like to offer
them into evidence at this time. Exhibit 1, the entire federal record,
which is available online, but we didn’t attach it to our memorandum . . .
because it is so voluminous. But we would ask the Court to take judicial
notice of the federal record.

Plaintiff’s counsel advised that the federal court found that Vermont substantive law

was controlling. Defendants’ counsel objected to its introduction based on relevancy.

The trial court permitted introduction of the evidence over the objection. Plaintiff’s

counsel also offered into evidence a second exhibit, which counsel identified as “the

exhibits attached to Vermont Natural Gas in its exception of lack of personal

jurisdiction filed in this court.” Counsel noted that those exhibits were already in

the trial court’s record but wanted to “incorporate them by reference and offer them

in support of” Plaintiff’s position. Defendants’ counsel again objected to its

relevancy, and the trial court permitted the evidence over the objection.

The record before us on appeal, however, contains no exhibits for us to review.

“Appellate courts are courts of record and may not review evidence that is not in the

appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc.,

07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. In Denoux, the supreme court also

explained that, “Evidence not properly and officially offered and introduced cannot

be considered, even if it is physically placed in the record. Documents attached to

memoranda do not constitute evidence and cannot be considered as such on appeal.”
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Id. Therefore, in the instant matter, we review the trial court’s decision to determine

whether it was legally correct.

At the hearing, Plaintiff argued that his claims were timely filed because they

are subject to Vermont’s three-year statute of limitations as opposed to the one-year

prescriptive period under La.Civ.Code art. 3492. Plaintiff’s counsel stated that “we

do not concede that the case is prescribed on its face. We think that on its face it is

a choice of law case, and Vermont law applies.” As we stated above however, the

issue raised in Defendants’ exception and ruled on by the trial court was whether

Plaintiff’s lawsuit was timely filed in Louisiana, not Vermont. A review of the

transcript shows that Plaintiff offered no evidence at the hearing to show that the

matter had not prescribed under Louisiana law. At the close of oral arguments, the

trial court found that Plaintiff was unable to meet his burden and that the matter had

prescribed on the face of the petition. Specifically, the trial court noted:

[T]he burden shifts to the Plaintiff to show some kind of reason why
the matter is not prescribed. The Court finds that the arguments that
were presented before the Court having to do with choice of law, I am
not aware of what the Vermont statutes hold with respect to prescription
or anything else, and the Court is not gonna go there. So, the Court
finds that the Plaintiffs have failed to show why their matter has not
prescribed.

After our review of the record and based upon the facts in the petition regarding

when the accident occurred, we cannot say that the trial court erred in finding that

Plaintiff’s claim had prescribed in Louisiana.

On appeal, Defendants agree with the trial court’s ruling that the matter

prescribed but disagree with the trial court’s failure to include the terms “with

prejudice” in its judgment. In support of inclusion of those terms, Defendants cite

Ubosi v. Sowela Technical Institute, 584 So.2d 340 (La.App. 3 Cir.), writ denied,

589 So.2d 1075 (La.1991), wherein the plaintiff alleged that the trial court erred in

dismissing her prescribed suit with prejudice. The plaintiff argued that it was within
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the trial court’s discretion to determine whether the dismissal was with or without

prejudice under La.Code Civ.P. art. 1672, the article governing involuntary

dismissals. This court found that the plaintiff’s argument lacked merit. The Ubosi

court explained that La.Code Civ.P. art. 1672 applied “only when the plaintiff fails

to appear on the date set for trial.” Id. at 342. We further explained that “[t]he effect

of a sustained peremptory exception is that the action shall be dismissed” pursuant

to La.Code Civ.P. art. 934. We also held that, “While [La.Code Civ.P. art. 934] does

not say with prejudice, peremptory exceptions are designed to preclude a right of

action. When an action is prescribed, it is over. When an action is dismissed with

prejudice, that means it cannot be filed again.” Id.

Defendants also cite Springer v. Nannie O’Neal Senior Apartments, 14-1125

(La.App. 3 Cir. 4/1/15), 162 So.3d 710, writ denied, 15-858 (La. 6/5/15), 171 So.3d

951, wherein the plaintiff filed lawsuits in both state and federal court. The federal

suit was voluntarily dismissed with prejudice, after which the defendants filed an

exception of res judicata in state court. The trial court granted the exception and

held that the plaintiff’s premises liability claims were precluded. The defendants

answered the subsequent appeal and asked this court to amend the trial court’s

judgment to indicate that it was with prejudice pursuant to La.Code Civ.P. art. 934.

This court held that “although La.Code Civ.P. art. 934 does not explicitly say that a

dismissal pursuant to the grant of a peremptory exception should be with prejudice,

the peremptory exceptions are intended to preclude a right of action.” Id. at 716.

We then explained that based upon the factual scenario, the lawsuit was over when

the exception was granted. In conclusion, we stated: “However, the issue has been

raised and, in the interest of clarity, we will amend the judgment to indicate that the

matter is dismissed with prejudice.” Id. at 716.

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Defendants further cite Pate v. Regional Transit Authority, 08-1147, p. 6

(La.App. 4 Cir. 3/11/09), 8 So.3d 744, 749, wherein the fourth circuit noted that

“[t]he trial court’s judgment simply granted the exception of prescription.” It

explained that “[w]hen the exception of prescription is granted, the action ‘shall be

dismissed.’” Id. (quoting La.Code Civ.P. art. 934). The fourth circuit revealed that

“[a] lawsuit dismissed because it is prescribed is over and the dismissal ought to be

with prejudice.” Pate, 8 So.3d at 749 (footnote omitted). Accordingly, the fourth

circuit amended the trial court’s judgment to include the phrase “with prejudice.” Id.

We find the foregoing jurisprudence factually distinguishable with respect to

the instant matter. In Ubosi, 584 So.2d 340, the plaintiff argued that the trial court

erred in dismissing her prescribed suit with prejudice whereas in the instant matter,

the trial court’s judgment was silent with respect to whether it was dismissed with

or without prejudice. In Springer, 162 So.3d 710, the exception at issue dealt with

an exception of res judicata whereas the exception at issue in this case deals with

prescription. Moreover, the fourth circuit in Pate, 8 So.3d 744, opined that a

prescribed lawsuit should be dismissed with prejudice rather than must be dismissed

with prejudice.

Regardless, we note that other Louisiana jurisprudence supports a finding that

the instant judgment should be without prejudice. In Quality Environmental

Processes, Inc. v. IP Petroleum Co., Inc., 16-230, p. 27 (La.App. 1 Cir. 4/12/17),

219 So.3d 349, 379, writ denied, 17-915 (La. 10/9/17), 227 So.3d 833, the first

circuit explained:

When a judgment is silent as to whether it is being dismissed
with or without prejudice, the dismissal must be without prejudice.
State ex rel. Dep’t of Soc. Serv. v. A.P., 2002-2372 (La.App. 1 Cir.
6/20/03), 858 So.2d 498, 503 n.10. A trial judge is vested with great
discretion in dismissing a lawsuit with or without prejudice. Howard
v. Lee, 50,366 (La.App. 2 Cir. 1/13/16), 185 So.3d 144, 153. Dismissal
after trials on the merits, however, are to be with prejudice. Citizens
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Sav. Bank v. G & C Development, L.L.C., 2012-1034 (La.App. 1 Cir.
2/15/13), 113 So.3d 1085, 1088.
Additionally, in Total Sulfide Services, Inc. v. Secorp Industries, Inc., 96-589

(La.App. 3 Cir. 12/11/96), 685 So.2d 514, the plaintiff appealed the trial court’s

judgment dismissing its suit “with prejudice” against the defendant based upon

abandonment. The plaintiff argued that the suit should have been dismissed

“without prejudice.” This court amended the trial court’s judgment to delete the

phrase “with prejudice.” We explained that the article governing abandonment “is

silent on whether such dismissal shall be with or without prejudice.” Id. at 514.

In this case, the trial court granted Defendants’ peremptory exception of

prescription, before a trial on the merits, without specifying whether it was with or

without prejudice. Additionally, the article governing a peremptory exception, i.e.,

La.Code Civ.P. art. 934, is silent on whether such dismissal shall be with or without

prejudice. Based upon the foregoing jurisprudence along with the trial court’s great

discretion in dismissing a lawsuit with or without prejudice, we affirm the trial

court’s judgment at issue.

DECREE

For the above reasons, the trial court’s judgment granting the peremptory

exception of prescription is affirmed. Costs of this matter are split equally between

the Plaintiff/Appellee, Eric Dewayne, and Defendants/Appellants, Michels

Corporation and William Fee.

AFFIRMED.

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

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