Shawn Stroder and Trisha Stroder v. Town of Welsh, Welsh Police Department, David M. Armine and Atlantic Specialty

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 23-75

SHAWN STRODER AND TRISHA STRODER

VERSUS

TOWN OF WELSH, WELSH POLICE DEPARTMENT, DAVID M.
ARMINE, AND ATLANTIC SPECIALTY INSURANCE COMPANY

**********

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, C-481-22
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

**********

LEDRICKA J. THIERRY
JUDGE

**********

Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry,
Judges.

AFFIRMED.

Steve M. Sikich
The Sikich Law Firm
309 E. Sallier Street, Suite B
P.O. Box 1432
Lake Charles, LA 70602
(337) 721-8008
COUNSEL FOR PLAINTIFFS/APPELLANTS
Shawn Stroder and Trisha Stroder

Joy C. Rabalais
H. Edward Barousse, III
Jordan John Henagan
Grant R. Schexnailder
K. Elizabeth Heinen
Borne, Wilkes & Rabalais, LLC
200 W. Congress Street, Suite 1000
Lafayette, LA 70501
(337) 232-1604
COUNSEL FOR DEFENDANTS/APPELLEES
Town of Welsh and Officer David Amrine, Individually and in
His Official Capacity as a Police Officer for the Town of Welsh

THIERRY, Judge.

Plaintiffs, Shawn Stroder and Tricia Stroder, appeal the decision of the district

court finding their claims to be prescribed. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 23, 2020, Shawn Stroder was riding a bicycle in Welsh, Louisiana in

Jefferson Davis Parish, when he was struck by defendant, Officer David Amrine,

who was driving a 2019 Ford Explorer owned by the Town of Welsh. Mr. Stroder

alleges he was dragged approximately 180 feet, causing severe injuries to his back,

head, ears, mouth, and other areas of his body. At the time of the accident, Plaintiffs

allege that Officer David Amrine was an employee of the Town of Welsh and the

Welsh Police Department.

On May 18, 2021, Shawn Stroder and Tricia Stroder filed a petition for

damages in Calcasieu Parish against several Defendants: the Town of Welsh, the

Welsh Police Department, David M. Amrine (incorrectly spelled as “Armine” in the

petition), and Atlantic Specialty Insurance Company. The petition identifies Officer

Amrine’s domicile as Iowa, Louisiana, located in Calcasieu Parish. The Town of

Welsh and the Welsh Police Department are both located in Jefferson Davis Parish.

Atlantic Specialty Insurance Company is a foreign insurance company with its

registered agent located in Baton Rouge, Louisiana.

Defendants were not served until June of 2021, more than a year after the

incident occurred. Officer Amrine, the Town of Welsh, and the Welsh Police

Department were served on June 3, 2021. Atlantic Specialty Insurance Company

was served on June 7, 2021.

On July 7, 2021, Defendants filed an Exception of Improper Venue, asserting

that La.R.S. 13:5104(B) mandates that any suit against a political subdivision of the

state or officer thereof within the course and scope of his employment be instituted

before the district court in which the political subdivision is located, or in the district

court having jurisdiction in the parish where the cause of action arises. Defendants

claimed that because the Town of Welsh is located in Jefferson Davis Parish, venue

was proper in Jefferson Davis Parish. Defendants similarly claimed that venue was

proper in Jefferson Davis Parish because Officer Amrine was in the course and scope

of his employment as an officer of a political subdivision (located in Welsh,

Jefferson Davis Parish).

On April 19, 2022, Plaintiffs filed a First Supplemental and Amending

Petition, adding a new paragraph alleging that Mr. Stroder sustained his damages in

Calcasieu Parish, as he was treated at Lake Charles Memorial Hospital located in

Calcasieu Parish and therefore incurred medical expenses (i.e., damages) in

Calcasieu Parish.

On May 20, 2022, Judge Ritchie of the Fourteenth Judicial District in

Calcasieu Parish granted Defendants’ Exception of Improper Venue and transferred

the matter to the Thirty-First Judicial District Court in Jefferson Davis Parish.

On September 19, 2022, the Welsh Police Department filed an exception of

lack of procedural capacity, asserting that it is not a juridical person and therefore

lacks the procedural capacity to be sued. On that same date, the Town of Welsh and

Officer David Amrine filed a peremptory exception of prescription, claiming that

the lawsuit was prescribed because Defendants were not served within the one-year

peremptory period. In support, Defendants cited La.Civ.Code art. 3462.

After a hearing on October 25, 2022, and in a judgment signed on December

5, 2022, Judge Gunnell granted Defendants’ peremptory exception of prescription,

Welsh Police Department’s exception of lack of procedural capacity, and

2

Defendants’ motion to strike jury and bifurcate trial. The only pleading objected to

by Plaintiffs was Defendants’ exception of prescription. It is the prescription ruling

which Plaintiffs now appeal, asserting that the district judge improperly granted

Defendants’ exception of prescription.

ANALYSIS

The standard of review of a judgment on a peremptory exception of

prescription depends on whether evidence was introduced at the hearing. Mitchell v.

Baton Rouge Orthopedic Clinic, LLC, 21-61 (La. 12/10/21), 333 So.3d 368. If no

evidence is introduced, then the exception is decided upon the facts alleged in the

petition, with all allegations in the petition accepted as true. Id. The reviewing court

assesses whether the trial court was legally correct in its ruling. When evidence is

introduced at the hearing, the trial court’s decision is reviewed under the manifest

error standard of review. The exception to this is when there is no dispute regarding

the material facts. In such a case, the reviewing court applies the de novo standard

of review. Id.

In this case, evidence was introduced at the hearing on the exception of

prescription. However, there is no dispute regarding the material facts; namely, that

the accident occurred on May 23, 2020, Plaintiffs filed their petition for damages on

May 18, 2021, and Defendants were served on June 3, 2021 and June 7, 2021.

Therefore, the de novo standard of review applies.

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

subject to a liberative prescription of one year,” commencing on the date when the

injury occurs or damage is sustained. In this case, the injury and damage occurred

on May 23, 2020, and thus the prescriptive period is one year from that date.

3

Plaintiffs filed their petition for damages within the prescriptive period, on May 18,

2021. It is undisputed that Plaintiffs timely filed the suit in Calcasieu Parish.

However, the issue is whether Plaintiffs timely filed their suit in Jefferson

Davis Parish. When an action is filed in an improper venue and subsequently

transferred, prescription is only interrupted if the defendants were served within the

prescriptive period. Louisiana Civil Code Article 3462 states (emphasis added):

Prescription is interrupted when the owner commences action
against the possessor, or when the obligee commences action against
the obligor, in a court of competent jurisdiction and venue. If action is
commenced in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served by process
within the prescriptive period.

See also Titus v. IHOP Rest., Inc., 09-951 (La. 12/1/09), 25 So.3d 761.

In this case, Plaintiffs originally filed their petition for damages in Calcasieu

Parish, which was transferred to Jefferson Davis Parish upon the granting of an

exception of improper venue filed by Defendants.1 Defendants were not served until

June 3, 2021 and June 7, 2021, several days beyond the one-year prescriptive period.

Therefore, under the unambiguous language of La.Civ.Code art. 3462, prescription

was not interrupted.

Plaintiffs argue that the fact that Defendants were not served within the one-

year prescriptive period is immaterial, because Defendants were on notice of the

accident well before they were served. This is contrary to both the plain language of

the article and the subsequent jurisprudence on this article. Actual knowledge of a

lawsuit is irrelevant for purposes of the statute; it is service that is key. The Louisiana

fifth circuit recently reiterated this longstanding rule in a 2022 decision:

1
Both parties set forth arguments relating to venue in their brief. However, the venue ruling
was not appealed, and therefore this court’s ruling is limited to the issue on appeal: the district
court’s granting of Defendants’ exception of prescription.

4

“Where service of process is the legal act which interrupts the running
of prescription it is essential that the defendant be served. This is the
only type of notice permitted or recognized. Knowledge obtained
through any other source will not constitute a legal interruption.”
[Conner v. Cont’l S. Lines, Inc., 294 So.2d 485, 487 (La. 1974).] Actual
service of citation is necessary to interrupt prescription when the suit is
filed in a court which does not have jurisdiction of the action. Hidalgo
v. Dupuy, 122 So.2d 639, 643 (La.App. 1st Cir. 1960).

Matos v. White, 21-313, p. 6 (La.App. 5 Cir. 2/23/22), 336 So.3d 594, 599.

Therefore, since Defendants in this action were not served within the

applicable one-year prescriptive period, prescription was not interrupted. By the time

this case was transferred to the proper venue in Jefferson Davis Parish, the case was

prescribed. The district court correctly granted Defendants’ exception of

prescription.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. All

costs of this appeal are assessed against appellants, Shawn Stroder and Trisha

Stroder.

AFFIRMED.

5