James Michael Smith v. Vick Investments, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-622

JAMES MICHAEL SMITH

VERSUS

VICK INVESTMENTS, LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2017-3661
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John E. Conery, and
Van H. Kyzar, Judges.

AFFIRMED.

John L. Van Norman, III
John L. Van Norman, IV
215 Dr. Michael Debakey Drive
Lake Charles, LA 70601
Telephone: (337) 436-5787
COUNSEL FOR:
Defendant/Appellee – Vick Investments, LLC

Larry Edward Pichon
330 Alamo Street – Suite G
Lake Charles, LA 70601
Telephone: (337) 439-3073
COUNSEL FOR:
Plaintiff/Appellant – James Michael Smith

THIBODEAUX, Chief Judge.

This case arises from a petition for damages filed by Plaintiff, James

Michael Smith (hereinafter “Smith”), against Defendant, Vick Investments, LLC

d/b/a Wagin Cajun (hereinafter “Vick Investments”). Smith filed a petition for

damages on September 6, 2017, approximately two years following a barroom fistic

encounter. The trial court sustained a peremptory exception of prescription in favor

of Vick Investments and dismissed Smith’s claim. Smith now appeals arguing that

the trial court should have applied the two-year prescriptive period under

La.Civ.Code art. 3493.10 because a crime of violence occurred. For the following

reasons, we affirm the trial court’s judgment.

I.

ISSUES

We must decide whether the trial court erred in granting Vick

Investments’ peremptory exception of prescription.

II.

FACTS AND PROCEDURAL HISTORY

Smith instituted this legal proceeding on September 6, 2017, against

Vick Investments. In his petition, Smith alleges that Vick Investments failed to

provide adequate security to ensure its customers’ safety. Smith cited an incident

that occurred on or about September 7, 2015, when he was attacked by Cody Spears

(hereinafter “Spears”), while at a bar called Wagin Cajun, which is owned and

operated by Vick Investments. The altercation took place almost two years before

the petition was filed. Vick Investments filed a peremptory exception of prescription

arguing that Smith’s petition alleged negligence on its face and was prescribed.

At the hearing on the peremptory exception of prescription, Vick

Investments argued that Smith’s claim had expired before the petition was filed. The

trial court granted the peremptory exception of prescription and issued a judgment

in favor of Vick Investments, finding that Smith’s claim against Vick Investments

had prescribed. The trial court then dismissed the proceeding assessing the costs to

Smith.

III.

STANDARD OF REVIEW

Generally, appellate review of a peremptory exception of prescription,

requires an appellate court to determine whether the trial court’s finding of fact was

manifestly erroneous. Johnson v. Littleton, 45,323 (La.App. 2 Cir. 5/19/10), 37

So.3d 542. However, when an exception of prescription involves the interpretation

of a statute, which is a question of law, the appellate court must use de novo standard

of review. In re Succession of Smith, 09-969 (La.App. 3 Cir. 2/3/10), 29 So.3d 723.

Furthermore, the party raising the defense of prescription bears the burden of proof.

Wells v. Zadeck, 11-1232 (La. 3/30/12); 89 So.3d 1145. “However, if prescription

is evident on the face of the pleadings, the burden shifts to the plaintiff to show the

action has not prescribed.” Id. at 1149.

IV.

LAW AND DISCUSSION

Louisiana Civil Code Article 3493.10 states the following:

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Delictual actions which arise due to damages sustained as
a result of an act defined as a crime of violence under
Chapter 1 of Title 14 of the Louisiana Revised Statutes of
1950 are subject to a liberative prescription of two years.
This prescription commences to run from the day injury or
damage is sustained.

In this case, Smith states that because an act of violence was committed

by Spears on Vick Investments’ premises, Article 3493.10 applies, making his claim

against Vick Investments subject to a two-year prescriptive period. We disagree.

Louisiana Civil Code Article 3493.10 applies to delictual actions which

arise due to damages sustained as a result of an act defined as a crime of violence.

Louisiana Revised Statutes 14:2(B) defines “crime of violence” as:

[1] an offense that has, as an element, the use, attempted
use, or threatened use of physical force against the person
or property of another, and that by its very nature, involves
a substantial risk that physical force against the person or
property of another may be used in the course of
committing the offense, or [2] an offense that involves the
possession or use of a dangerous weapon.

Here, Smith claims that Vick Investments and Spears are jointly liable

for his damages. Spears is not a party to this suit; rather, a separate suit was filed

and is still pending in district court. Furthermore, there are two separate tortious acts

that Smith claims caused his damages: first, the battery Spears committed against

him; and second, Vick Investments’ failure to protect its customers and provide

proper security lighting and the fact that they continued to serve alcohol to an already

intoxicated person. Smith’s claims of negligence against Vick Investments are

separate from the “act defined as a crime of violence.” Smith argues that since the

action arises from the same set of facts “it does not make any sense to have separate

prescriptive periods.” However, we disagree and find that Smith has failed to meet

his burden of proof.

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In Boland v. Kleinpeter, 01-3287 (La. 6/21/02), 820 So.2d 489, the

supreme court reasoned that the individual actions of the joint tortfeasors should be

considered and not the entire action against both tortfeasors for the application of

the two-year prescription of Article 3493.10. Here, we agree and conclude that the

trial court correctly sustained Vick Investments’ exception of prescription finding

that a one-year prescriptive period applied. Although it is evident that the seminal

act by Cody Spears precipitated Smith’s lawsuit, Vick Investments did not commit

a crime of violence against Smith. Indeed, acts of violence have neither been alleged

nor proved against Vick Investments. Therefore, we find that the claims of

negligence against Vick Investments have prescribed.

V.

CONCLUSION

We conclude that the trial court ruled properly and the judgment

sustaining Vick Investments’ exception of prescription was not clearly wrong.

Indeed, it was eminently correct. Therefore, we affirm the trial court’s judgment.

All costs of this appeal are to be assessed to James Michael Smith.

AFFIRMED.

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