Opinion
NO. 2012 CA 1447
06-27-2013
CAROLYN ANN DUNCAN v. STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS
Otha Curtis Nelson, Sr. Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Carolyn Ann Duncan Hillar C. Moore, III District Attorney Dale R. Lee Assistant District Attorney Baton Rouge, Louisiana Counsel for Defendant/Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 582,008
The Honorable Todd Hernandez, Judge Presiding
Otha Curtis Nelson, Sr.
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant
Carolyn Ann Duncan
Hillar C. Moore, III
District Attorney
Dale R. Lee
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
State of Louisiana
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
In this suit for damages arising from an alleged false arrest and malicious prosecution, the plaintiff appeals a trial court judgment dismissing her claims against one defendant as prescribed. For the reasons that follow, we affirm in part, reverse in part and remand this matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
On June 1, 2008, plaintiff, Carolyn Ann Duncan, was issued a summons for simple battery of the infirm, a violation of La. R.S. 14:35.2. These charges were ultimately dismissed by the East Baton Rouge Parish District Attorney's office ("DA's office") on February 3, 2009. On August 31, 2009, Ms. Duncan filed a petition for damages against the State of Louisiana, through the Department of Health and Hospitals ("DHH"), alleging that DHH's employees had falsely accused her of the crime. On February 2, 2010, Ms. Duncan amended her petition to add a claim for malicious prosecution against DHH. She again amended her petition on January 11, 2012 to add the DA's office as a defendant.
The DA's office filed a peremptory exception raising the objection of prescription, which was granted by the trial court in an April 13, 2012 judgment. Ms. Duncan appealed devolutively to this court from that judgment.
This court issued a Rule to Show Cause Order on September 12, 2012, noting that the April 13, 2012 judgment lacked proper decretal language disposing of or dismissing Ms. Duncan's claims, and ordering the parties to show cause why the appeal should not be dismissed. After receiving responses from the parties, this court issued an interim order remanding the matter to the trial court for the limited purpose of having the district court issue a valid judgment containing appropriate decretal language as required by La. C.C.P. art. 1918. The record was supplemented with a new judgment containing appropriate decretal language on January 22, 2013.
DISCUSSION
The burden of proof generally rests upon the party pleading prescription as an affirmative defense. Where, however, the plaintiffs petition shows on its face that the asserted claim has prescribed, the burden shifts to the plaintiff to prove interruption or suspension of prescription sufficient to bring the action within the prescriptive period. Laforte v. Gulf Island Fabrication, Inc., 10-1605, p. 5 (La. App. 1st Cir. 5/3/11), 65 So.3d 182, 185, writ denied, 11-1484 (La. 9/30/11), 71 So. 3d 296.
Delictual actions, such as claims for false arrest and malicious prosecution, are subject to a one-year liberative prescription period. A cause of action arises and prescription begins to run on a claim for false arrest on the day the false arrest occurs. See Murray v. Town of Mansura, 06-355, p. 7 (La. App. 3rd Cir. 9/27/06), 940 So.2d 832, 838, writ denied, 06-2949 (La. 2/16/07), 949 So. 2d 419, cert denied, 552 U.S. 915, 128 S. Ct. 270, 169 L. Ed. 2d 197 (2007). However, prescription does not begin to run on a claim for malicious prosecution until the underlying prosecution is dismissed. Murray, 06-355 at p. 7, 940 So.2d at 838.
Ms. Duncan was issued a summons on June 1, 2008, and the charges against her were dismissed on February 3, 2009, but she did not file suit against the DA's office until January 11, 2012. Thus, her amended petition stating claims against the DA's office for false arrest and malicious prosecution was clearly prescribed on its face, and the burden shifted to Ms. Duncan to prove suspension or interruption of prescription.
Ms. Duncan alleges that the claims made in her January 11, 2012 petition relate back to the filing of her original petition on August 31, 2009. Regardless of whether her petition adding the DA's office as a defendant relates back to the date of her original petition, her claim for false arrest was prescribed, since her original petition was filed more than a year after her June 1, 2008 arrest.
As for her claim for malicious prosecution, Ms. Duncan asserted a claim for malicious prosecution against DHH in her first amended petition filed on February 2, 2010, which waswithin, one year of the dismissal of the criminal charge on February 3, 2009. By a second amended petition filed thereafter, Ms. Duncan added the DA's office as a defendant and alleged that the DA's office was liable jointly, and insolido" with DHH for the damages she sustained as a result of a criminal charge being "fasely filed" against her, The second amended petition further incorporated by reference the allegations of the original petition and the first amended petition, which asserted a claim for malicious prosecution.
Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art. 2324C; Wheat v. Nievar, 07-0680, p. 4 (La. App. 1st Cir. 2/8/08), 984 So. 2d 773, 775-776. Once a plaintiff establishes that a joint or solidary tortfeasor has been timely sued, consideration of the concept of relating back to interrupt prescription is not necessary. Wheat, 07-0680 at p. 4, 984 So. 2d at 775-776. When no evidence has been introduced at a hearing on an exception of prescription, all allegations of the petition are to be accepted as true. Wheat, 07-0680 at p. 4, 984 So. 2d at 775. Accordingly, based on the allegations of the petition, the DA's office and DHH are joint tortfeasors such that the filing of the malicious prosecution claim against DHH interrupted prescription for the claim against the DA's office. Therefore, the trial court erred in granting the exception of prescription as to me .malicious prosecution claim.
We note that the trial court dismissed Ms. Duncan's claims for malicious prosecution against DHH by way of a peremptory exception raising the objection of no cause of action. However, in Duncan v. State ex rel Department of Health and Hospitals, 12-1634 (La. App. 1st Cir.) (unpublished opinion), this court reversed the trial court's dismissal of Ms. Duncan's malicious prosecution claim against DHH, ordering Ms. Duncan to amend her petition within thirty days of the date of that decision to state a cause of action against DHH. Therefore, because DHH, the alleged joint tortfeasor, has not been dismissed from the litigation, Ms. Duncan's malicious prosecution claim against the DA's office relates back to the timely filing of her claim against DHH.
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CONCLUSION
The judgment dismissing Ms. Duncan's false arrest claim against the DA's office as prescribed is affirmed, but the judgment dismissing Ms. Duncan's malicious prosecution claim against the DA's office is reversed. Costs of this appeal are assessed equally to the parties.
AFFIRMED IN PART: REVERSED IN PART; AND REMANDED.