Sam Doe v. the Society of the Roman Catholic Church of the Diocese of Lafayette

BRADBERRY, J., Dissents with Reasons.

Once liberative prescription accrues, the right to plead the defense is

“absolute, complete, unconditional, and independent of a contingency,” and it is

therefore vested. See In re Am. Waste & Pollution Control Co., 597 So.2d 1125,

1130 (La.App. 1 Cir.), writs denied, 604 So.2d 1309, 1318 (La.1992) (citing Voelkel

v. Harrison, 572 So.2d 724, 726 (La.App. 4th Cir. 1990), writs denied, 575 So.2d

391 (La.1991)(defining a vested right)). The idea that it is constitutionally

permissible for the Legislature to revive a prescribed cause of action has been

unequivocally rejected by the Louisiana Supreme Court on several occasions. See

Hall v. Hall, 516 So.2d 119 (La.1987) (per curiam); Bouterie v. Crane, 616 So.2d

657 (La.1993) (citing Hall, 516 So.2d 119); Falgout v. Dealers Truck Equip. Co.,

98-3150, (La. 10/19/99) 748 So.2d 399. In Elevating Boats, Inc. v. St. Bernard

Parish, 00-3518, p. 14, (La. 9/5/01), 795 So.2d 1153, 1164, (quoting 1 Marcel

Planiol, Treatise on the Civil Law, § 243 (La. State Law Inst. trans. 1959)(12th ed.

1939)), overruled on other grounds by Anthony Crane Rental, L.P. v. Fruge, 03-

115 (La. 10/21/03), 859 So.2d 631, Chief Justice Calogero, writing for the majority

explained why a cause of action cannot be revived once liberative prospection has

accrued:

[A]fter the prescriptive period on an obligation has run, an obligor gains
the right to plead prescription. In such a situation, that right to plead
prescription has already accrued and application of a lengthened
prescriptive period to revive the obligation, and effectively remove the
right to plead prescription, would “modify or suppress the effects of a
right already acquired.” Thus, we have noted that the Legislature is
without the authority to revive a prescribed claim.

Moreover, the appellate courts of the state and at least one federal court in

Louisiana have consistently held that the Legislature could not revive a prescribed

claim. Johnson v. The Roman Cath. Church for the Archdiocese of New Orleans, 02-

429 (La.App 1 Cir. 2/14/03), 844 So.2d 65, writs denied, 03-730, 03-778 (La.

5/9/03); Orleans Parish Sch. Bd. v. United States Gypsum Co., 892 F.Supp. 794,

(E.D. La. 1995), aff’d., 114 F.3d 66 (5th Cir. 1997), cert. denied, 522 U.S. 995, 118

S.Ct. 557 (1997) (citing numerous Louisiana appellate court decisions); City of New

Orleans v. W.R. Grace & Co., No. 92-5, (E.D. La., 1992) (unpublished opinion).

Though Chance v. American Honda Motor Co., 93-2582, (La. 4/11/94), 635

So.2d 177, and Cameron Parish School Board v. ACandS, Inc., 96-895 (La.

1/14/97), 687 So.2d 84, have led some to question whether the Supreme Court has

begun to alter its historically stalwart rejection of the Legislature’s ability to revive

a prescribed cause of action, those cases did not hold that the Legislature could

revive a prescribed claim where it provided a clear and unequivocal expression of

its intent to do so. In fact, Elevating Boats, 795 So.2d 1153, seems to have rejected

that position after those cases were issued. Further, our supreme court has held that

“even where the legislature has expressed its intent to give a law retroactive effect,

that law may not be applied retroactively if it would impair contractual obligations

or disturb vested rights.” Morial v. Smith & Wesson Corp., 00-1132, p. 9 (La.

4/3/01), 785 So.2d 1, 10, cert. denied, 534 U.S. 951, 122 S.Ct. 346 (2001); Segura

v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714, cert. denied, 511 U.S.

1142, 114 S.Ct. 2165 (1994).

It is my opinion that while our Louisiana Supreme Court may have opened

the door to reviving prescribed claims with Chance and Cameron Parish, it has yet

to actually walk through it. Being that we are an intermediate, error-correcting court

and they are the policy making court, we are bound to follow the clear decisions of

the Louisiana Supreme Court. Lafourche Parish Water Dist. No. 1 v. Digco Util.

Const., L.P., 18-1112 (La.App. 1 Cir. 3/13/19), 275 So.3d 20, writ denied, 19-577

(La. 6/17/19); 274 So.3d 1257. See also, Latino v. Binswanger Glass Co., 532 So.2d

960 (La.App. 5 Cir. 1988); Arrington v. ER Physician Grp., Inc., 12-995 (La.App. 3

Cir. 2/6/13), 110 So.3d 193, writ denied, 13-493 (La. 4/12/13), 111 So.3d 1011. In

my opinion, the law as stated in the Louisiana Supreme Court’s many prior

pronouncements sets forth that prescription has clearly been held to be a vested

property right, and that revival is still, to this point, unconstitutional. Therefore, I

must dissent from the majority’s finding.