The opinion
Judgment rendered July 6, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 54,575-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
DENISE ANDING O/B/O OF Plaintiffs-Appellants
THE MINOR CHILDREN,
MARCUS ANDING, DEAUNTE
BROWN & ALYSSA ANDING
versus
LIEUTENANT SCOTT Defendants-Appellees
FERGUSON, DILLARD
DEPARTMENT STORES, INC.,
PECANLAND MALL, LLC, THE
CITY OF MONROE, THE
MONROE POLICE
DEPARTMENT, & XYZ
INSURANCE COMPANY
*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2020-2497
Honorable Alvin Rue Sharp, Judge
*****
PLEASANT, WILLIAMS & Counsel for Appellants
BANKS-MILEY LAW GROUP, LLC
By: Kristen B. Pleasant
Jessica Welch Williams
Donecia Banks-Miley
CITY OF MONROE Counsel for Appellees,
LEGAL DEPARTMENT Lieutenant Scott
By: Angie D. Sturdivant Ferguson, The City of
Brandon W. Creekbaum Monroe and The Monroe
Police Department
PROVOSTY, SADLER Counsel for Appellee,
& deLAUNAY, APC Dillard Department
By: H. Bradford Calvit Stores, Inc.
Eli Jules Meaux
John Dexter Ryland
DAVENPORT, FILES & KELLY, LLP Counsel for Appellee,
By: M. Shane Craighead Pecanland Mall, LLC
*****
Before COX, ROBINSON, and MARCOTTE, JJ.
COX, J.
This civil suit arises from the Fourth Judicial District Court, Ouachita
Parish, Louisiana. Denise Anding (“Anding”), on behalf of Alfonso
Brown’s (“Brown”) children, appeals a judgment that sustained exceptions
of prescription and dismissed her wrongful death and survival actions arising
from Brown’s death. For the reasons expressed, we affirm.
FACTS
On September 21, 2020, Anding, on behalf of Brown’s children, filed
a petition for wrongful death and survival action, damages, and declaratory
relief against Lieutenant Scott Ferguson (“Lt. Ferguson”), Dillard’s
Department Store, Inc. (“Dillard’s”), Pecanland Mall, LLC (“Pecanland”),
Monroe Police Department (“MPD”), and the City of Monroe (the “City”)
(collectively, “Appellees”), seeking damages for Brown’s death and
subsequent survival action, as well as declaratory relief concerning the
prescription of her claim under 1) La. R.S. 9:5828-9:5830, for hardships
regarding Covid-19 and Hurricane Laura; 2) La. C.C. art. 3472; and 3)
contra non valentem.
In her petition, Anding alleged that on June 17, 2019, Brown went
into Dillard’s in Pecanland Mall in Monroe, Louisiana. While shopping,
Brown spoke with a store employee who asked about the clothes he had and
helped him find other clothes to browse. After the interaction, the store
employee became suspicious of Brown’s behavior and reported him to store
security who advised that Lt. Ferguson, who was working as private security
for Dillard’s, would handle the matter. Lt. Ferguson then came into the area
and passed Brown before proceeding to the restroom. The store employee
was concerned that Brown would leave the store without paying and alerted
store security, who advised that Lt. Ferguson would handle the matter.
After Brown left the store, Lt. Ferguson followed him into the parking
lot and told Brown to stop. Although Lt. Ferguson, during his interview
with a Louisiana State Police Investigator, stated that Brown looked back at
him and ran, Anding claimed that a witness, Marvin Wink (“Wink”),
testified that Brown never ran, but trotted away. Lt. Ferguson stated that
because Brown had his right hand in his pocket, he fired his taser, but only
one prong hit Brown in the mid-back area; however, Wink testified that
Ferguson fired the taser three times.1 Lt. Ferguson testified that after he
attempted to grab Brown, he was pushed off, so he attempted to drive stun
Brown. Lt. Ferguson stated that he struggled with Brown in the parking lot
until they reached the travel lane closest to the store.
The petition then provides that after Lt. Ferguson gained control over
Brown and called for backup, Brown dropped the clothes he obtained from
Dillard’s, got up, and the two “traveled back to the edge of parking lot area
where the cars were parked.” Lt. Ferguson then pushed Brown against a car,
Brown fell to one knee, and Lt. Ferguson drive stunned Brown’s back leg.
Anding then alleged that when Brown failed to remove his hand from his
pocket, Lt. Ferguson put Brown down on his chest and drive stunned him
again. After Lt. Ferguson handcuffed Brown, he asked Wink to gather the
clothes Brown dropped, and he noticed that Brown began to breathe heavily
and checked his pulse.
1
Anding notes that the taser report provided that Lt. Ferguson’s taser was fired
eight times between 11:40 a.m. and 11:42 a.m.
2
When he could not locate a pulse, Lt. Ferguson allegedly stated, “Oh,
shit,” removed the handcuffs, rolled Brown onto his back, and performed
CPR until the other officers arrived on the scene.2 Shortly thereafter, Brown
was pronounced dead at the scene. Although the case was brought before a
grand jury on October 17, 2019, where no true bill was returned, Anding
contends that she and Brown’s family were never notified of this
information and were repeatedly told that the matter was under investigation.
The petition claimed Lt. Ferguson’s use of force in order to detain Brown
was unreasonable and excessive.
Specifically, Anding alleged that Lt. Ferguson’s use of his taser
constituted battery against Brown because his use of the taser was improper
and unjustified under the circumstances of this case primarily because
Brown was unarmed and, therefore, incapable of inflicting any serious
injuries. Based on this use of force, Anding asserted that Lt. Ferguson was
liable for Brown’s death and all subsequent damages arising from the
incident. Anding further claimed that because Lt. Ferguson, an MPD
officer, worked as private security for Dillard’s, the City, MPD, Dillard’s,
and Pecanland were vicariously liable for his actions.3
2
Another witness, Antonio Williams, stated that he went to the mall with Brown
and that he and another man, only referred to as Nathan in the petition, were waiting in
the car for Brown. He stated that he saw Brown exit the store with clothes and that he
later saw two officers tase Brown in the chest. Williams reported that when he saw
Brown and the officers in the parking lot, he stated, “Y’all ain’t gotta do him like that,” at
which point he was told that he was interfering with an officer. Williams stated that
Brown was still alive and handcuffed on the ground when he drove off.
3
Anding alleged that the City and MPD were vicariously liable for Lt. Ferguson’s
action and were independently liable for the negligent hiring, training, and supervising of
Lt. Ferguson, as well as the following:
• Refusal to supervise, reprimand, discipline, transfer, monitor, counsel, and/or
control law enforcement officers who engage in misconduct, and condoning the
use of excessive force;
• Failing to conduct an internal affairs investigation and discipline[e] Lt. Ferguson
for using excessive force;
3
In recognizing that the petition was filed beyond the general one-year
prescriptive period, Anding asserted four arguments for declaratory relief to
render the claim as timely filed. Specifically, she asserted that she was
entitled to a suspension of prescription under La. R.S. 9:5828-9:5830 for
hardships regarding Covid-19. She further provided that she was also
entitled to another suspension of prescription because of Hurricane Laura,
which would have suspended her claim for 30 days commencing August 21,
2020.4 Alternatively, Anding argued that pursuant to La. C.C. art. 3472, she
was entitled to an additional three months by which to bring this action.
She also argued that the doctrine of contra non valentem rendered the
claim timely because she was unaware of the investigative findings and
• Failing to have a specific policy manual regarding the levels of force used for
civilians that are suspected of nonviolent crimes and who pose no immediate
threat of harm to the officer or the public;
• Failing to provide Lt. Ferguson with a placement body camera; and
• Failing to provide proper medical devices for treatment resulting from the use of
tasers, such as defibrillators.
Anding further alleged that Dillard’s was vicariously liable for Lt. Ferguson’s actions for
negligent hiring, training, and supervising of Lt. Ferguson, as well as the following:
• Failing to properly train and supervise security officers on approaching
customers, detaining customers, discharging tasers, and de-escalation strategies
for suspected shoplifters;
• Refusing to supervise, reprimand, discipline, transfer, monitor, counsel, and/or
control security employees who engage in misconduct, and then condoning the
use of excessive force;
• Failing to have proper medical devices for treatment resulting from the use of
tasers such as defibrillators;
• Failing to have adequate security measures in place; and
• Failing to have outdoor surveillance cameras that have the capability of recording
and retaining daily footage in the parking lot.
Finally, Anding alleged that Pecanland owed a duty to Brown to protect him while in the
parking lot. She asserted that Pecanland breached its duty of due care to provide
adequate security, failing to have security officers patrolling the parking lot, and failing
to have outdoor surveillance cameras that have the capability of recording and retaining
daily footage in the parking lot.
4
In brief, the City notes that on August 28, 2020, the Louisiana Supreme Court
issued an order suspending prescription for 30 days commencing on August 21, 2020. It
notes that this 30-day period would have expired on Sunday, September 20, 2020.
4
additional facts of this case until September 8, 2020. Anding alleged that
although the case was presented before a grand jury on October 17, 2019,
where no true bill was returned, no one ever provided Brown’s family with
any information about the investigation despite several attempts to contact
MPD and the Louisiana State Police.
The Appellees subsequently filed several exceptions,5 including
peremptory exceptions of prescription, arguing generally that Anding’s
claim prescribed on the face of the petition because it was filed more than
one year after the date of the incident. In opposition, Anding asserted that
Lt. Ferguson’s use of force to apprehend Brown was considered “a crime of
violence,” namely, manslaughter and aggravated battery, and under La.
C.C.P. art. 3493.10, a two-year prescriptive period applied to the facts of this
case. Alternatively, Anding reasserted her previous arguments for
suspension of prescription under La. R.S. 9:5828-9:5830 and contra non
valentem.
On May 13, 2021, a hearing on the exceptions was held, and the trial
court rendered written reasons for judgment on July 15, 2021. In addressing
the exception of prescription, the trial court found that Anding’s claim
prescribed. It noted that the incident took place on June 17, 2019, and
provided that:
Under existing state law, [Anding’s] causes of action (if any)
accurred on that date and any lawsuit to be filed by [Anding]
should have been filed no later than 17 June 2020. [Anding’s]
actual lawsuit was not filed until 21 September 2020 (more than
one year as, generally, required by law).
5
Dillard’s also independently filed a dilatory exception of vagueness and
ambiguity and no right of action.
5
In addressing Anding’s claim that La. R.S. 9:5828-9:5830 gave her
additional time to file, the trial court found that neither the legislative
allowances concerning Covid-19 nor the Louisiana Supreme Court or the
governor’s declaration for suspension of legal deadlines concerning
Hurricane Laura applied; specifically, it stated:
The state legislature dealt with Covid-19 and time limitations
for filing suits in R.S. 9:5829 and related provisions.
Essentially, there, our law making body honored the
[g]overnor’s extension of prescription through 5 July 2020 and
fixed a date by which any suspended claim must be filed. That
date was 6 July 2020. This effort worked to produce a
“suspension with a deadline” and that “deadline” expired on 6
July 2020—long before Plaintiff filed the instant lawsuit on 21
September 2020. Today, this Court declines the invitation to
find that a limited “suspension extension” due to Covid-19
applies to this case. But again, the inquiry does not stop there
because Plaintiff asserts that a “Hurricane Laura order” works
to free Plaintiff from the general time limitations under 3492.
Our state’s highest court issued a “Hurricane Laura suspension”
— which was legislatively enacted around June of 2020. Our
state’s [g]overnor declared a state of emergency on or about 21
August 2020 — but by the time the [g]overnor and the La.
Supreme Court acted, [Anding’s] case had already
“prescribed.” The actions by the [g]overnor, the legislature,
and the state’s highest court (in this instance) do not work to
“resurrect an already dead case.” Once more, this Court
declines the invitation to find that a limited “suspension
extension” due to Hurricane Laura applies to this case.
Finally, the trial court found that Anding’s claim was untimely under
La. C.C. art. 3472. Specifically, the court provided that the state
legislature’s extension for “deadlines in legal proceedings” related only to
those proceedings which were “ongoing” at the time of the provision’s
enactment. The trial court also found that contra non valentem did not apply
to this case.6
6
The trial court declined to provide written reasons for the remaining exceptions,
namely, the exception of no right of action and exception of vagueness and ambiguity.
6
Anding now appeals the trial court’s ruling in its entirety.
DISCUSSION
Generally, the standard of review of a judgment for an exception of
prescription depends on whether evidence was introduced during the hearing
of the exception. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-
00061 (La. 10/10/21), 333 So. 3d 368; Wells Fargo Fin. La, Inc. v.
Galloway, 17-0413 (La. App. 4 Cir. 11/15/17), 231 So. 3d 793. If no
evidence was presented to support or controvert the exception, the manifest
error standard of review does not apply, and the appellate court’s role is to
determine whether the trial court’s ruling was legally correct. Cook v.
Rigby, 19-1475 (La. App. 1 Cir. 11/25/20), 316 So. 3d 482.
When evidence is introduced during the hearing on an exception of
prescription, the trial court’s findings of fact are reviewed under the manifest
error standard of review. Mitchell, supra; Carter v. Haygood, 04-0646 (La.
1/19/05), 892 So. 2d 1261. In the absence of evidence, the exception of
prescription must be decided on the facts alleged in the petition, which are
accepted as true. Johnson v. Littleton 45,323 (La. App. 2 Cir. 5/19/10), 37
So. 3d 542. Because this particular exception of prescription involves the
interpretation of a statute, which is a question of law, we review this matter
using the de novo standard of review. Id.
Assignment of Error 1
Anding argues that although the incident occurred on June 17, 2019,
and she did not file suit until September 21, 2020, her claim was timely
because Lt. Ferguson’s actions are considered a crime of violence, such that
her claim was subject to a two-year prescriptive period under La. C.C. art.
3493.10. We disagree and find that because Anding filed a claim for
7
wrongful death and survival action, which are governed by specific
prescriptive periods, Anding had one year to timely file suit.
La. C.C. art. 2315.2(B), which governs wrongful death actions,
provides, in pertinent part, that claims filed under this article prescribe one
year from the death of the deceased. Likewise, La. C.C. art. 2315.1, which
governs survival actions, provides that such claims “shall survive for a
period of one year from the death of the deceased.” Anding has not
presented any argument that La. C.C. art. 3493.10 is an exception to, or in
any way supersedes the prescriptive periods governing La. C.C. art.
2315.2(B) and La. C.C. art. 2315.1, such that a two-year period of
prescription should be invoked.
Accordingly, we find that the trial court did not err in finding that
Anding’s claim was subject to a one-year prescriptive period.
Assignment of Error 2
Next, Anding contends that the trial court erred in finding that her
negligence claims prescribed. All parties acknowledge that Anding’s
negligence claims would generally be subjected to a one-year prescriptive
period, but under the Covid-19 statutes, La. R.S. 9:5828-9:5830, prescription
for this claim was extended. Anding argues that the ratification of these
statutes, specifically the “good cause” provision of La. R.S. 9:5830(B),
rendered her claim timely. In contrast, Appellees argue that Anding’s claims
facially prescribed because she had a one-year prescriptive period from June
17, 2019, when the incident occurred, but Anding did not file until more
than one year later on September 21, 2020, superseding the extensions
allotted by the Covid-19 statutes.
La. R.S. 9:5828 provides, in pertinent part:
8
A. The legislature finds that the COVID-19 public health
emergency created a statewide emergency disrupting and
forcing the closure of certain courts and public offices and
further resulting in the displacement of courts, offices, clients,
and counsel. This Part is enacted for the benefit and protection
of the state as a whole and its citizens, and to prevent injustice,
inequity, and undue hardship to persons who were prevented by
the COVID-19 public health emergency from timely access to
courts and offices in the exercise of their legal rights, including
the filing of documents and pleadings as authorized or required
by law. Therefore, this Part shall be liberally construed to
effect its purposes.
La. R.S. 9:5829 provides, in pertinent part:
A. All prescriptions, including liberative, acquisitive, and the
prescription of nonuse, abandonment periods, and all
peremptive periods shall be subject to a limited suspension or
extension during the time period of March 17, 2020, through
July 5, 2020; however, the suspension or extension of these
periods shall be limited and shall apply only if these periods
would have otherwise expired during the time period of
March 17, 2020, through July 5, 2020. The right to file a
pleading or motion to enforce any right, claim, or action which
would have expired during the time period of March 17, 2020,
through July 5, 2020, shall expire on July 6, 2020. (Emphasis
added).
La. R.S. 9:5830 provides, in pertinent part:
A. All deadlines in legal proceedings that were suspended by
Proclamation Number JBE 2020-30 and any extensions
thereof shall be subject to a limited suspension or extension
until July 6, 2020; however, the suspension or extension of
these deadlines shall be limited and shall apply only if these
deadlines would have otherwise expired during the time
period of March 17, 2020, through July 5, 2020. The right to
file a pleading or motion to enforce any deadline in legal
proceedings which would have expired during the time period
of March 17, 2020, through July 5, 2020, shall expire on July 6,
2020. (Emphasis added).
B. Notwithstanding the provisions of Subsection A of this
Section and to the extent that deadlines in legal proceedings
were not suspended by Proclamation Number JBE 2020-30 and
any extensions thereof if a deadline in a legal proceeding lapsed
during the time period March 17, 2020, through July 5, 2020, a
party shall have the right to seek an extension or suspension of
that deadline by contradictory motion or declaratory judgment.
The party seeking the extension shall bear the burden of
9
proving that either the party or his attorney was adversely
affected by the Covid-l9 public health emergency and, but for
the adverse effects of the Covid-19 public health emergency,
the legal deadline would have been timely met. For good cause
shown, the court shall extend the deadline in the legal
proceeding, but in no instance shall the extension be later than
September 1, 2020.
We find this argument to be without merit; the statutory language of
La. R.S. 9:5828-9:5830 is clear and unambiguous: all deadlines were subject
to a limited suspension or extension until July 6, 2020. Therefore, any
deadline that would have expired between March 17, 2020, and July 5, 2020,
expired on July 6, 2020. Here, the incident occurred on June 17, 2019, and
because it would have expired on June 17, 2020, Anding was afforded a
filing deadline of July 6, 2020; her claim was not filed until September 21,
2020, therefore, it has facially prescribed.
Anding acknowledges that under La. R.S. 9:5829, her claim, which
would have expired on June 17, 2020, was extended to July 6, 2020.
However, she contends that under the La. R.S. 9:5830(B), “good cause”
provision, she was entitled to a hearing to determine if the deadline for filing
should have been extended. We disagree and find that the plain language of
these statutes clearly provides that Anding’s claim fell under the provisions
of La. R.S. 9:5829, which addresses prescription and peremption
specifically; therefore, the “good cause” provision of 9:5830 does not apply.
On June 9, 2020, in response to the Covid-19 pandemic, the governor
signed Act 162 (the “Act”) into law and the legislature passed La. R.S.
9:5828 to ratify and amend the governor’s suspension of prescriptive
periods, peremptive periods, and other legal deadlines first found in the JBE-
2020-30 Proclamation. While 9:5828 ratified and confirmed the governor’s
order, 9:5829, as titled, amended the governor’s suspension of prescriptive
10
and peremptive periods specifically. It created a limited suspension of such
periods that would have, absent the Covid-19 shutdown, prescribed or
perempted from any time between March 17, 2020, to July 5, 2020, and
extended the expiration of those dates to July 6, 2020.
Conversely, 9:5830 as titled, applies to “deadlines in legal
proceedings.” This statute applied an equivalent rule under 9:5829 to
deadlines in legal proceedings and provided that any legal deadline that
would have expired between March 17, 2020, and July 5, 2020, would be
subject to a limited suspension. Only then are such persons entitled to a
contradictory hearing to seek an extension or suspension of that deadline. In
interpreting these statutes, La. C.C. art. 9 and La. R.S. 1:4 provide:
When a law is clear and unambiguous and its application does
not lead to absurd consequences, it shall be applied as written,
with no further interpretation made in search of the legislative
intent.
Here, the language of the statute is clear and cannot be interpreted any other
way; 9:5830 plainly provides for suspension of deadlines in legal
proceedings, and 9:5829 provides for suspension of prescriptive and
preemptive periods specifically.
Although Anding contends that the “good cause” provision does not
specifically exclude liberative prescription, we find that this interpretation
would render the language of 9:5830 superfluous. When interpreting a
statute, courts should give effect to all parts of a statute and should not reach
an interpretation that renders any part superfluous; thus interpreting
suspension of liberative prescription to 9:5830 would render the inclusion of
that specific period in 9:5829 meaningless. Therefore, we find this argument
to be without merit.
11
Anding further contends that La. C. C. art. 3472 and art. 3472.1 give
her additional time by which to file her claim; we note that while art. 3472
provides that “[t]he period of suspension is not counted toward accrual of
prescription” and “prescription commences to run again upon the
termination of the period of suspension,” the legislative notes to La. R.S.
9:5828-9:5830 provide that these statutes “shall preempt and supersede. . .
any provision of the Civil Code or any other provision of law to the extent
that such provision conflicts with the provisions of this Act.” Therefore, art.
3472 does not apply. See Acts 2020, No. 162.
With respect to art. 3472.1, Anding argues that because the article was
enacted shortly after La. R.S. 9:5829-9:5830, the legislature, in recognizing
the impact of Covid-19, intended for art. 3472.1 to act as an additional
means to suspend prescription. La. C. C. art. 3472.1 provides, in pertinent
part:
A. Notwithstanding any other provisions of the law, in the
event the governor declares a state of emergency or disaster
pursuant to R.S. 29:721 through 772, the Supreme Court of
Louisiana may enter an order or series of orders as deemed
necessary and appropriate to suspend all prescriptive and
peremptive periods for a period of time not to exceed ninety
days.
Although this article was enacted after La. R.S. 9:5829-9:5830, it does not
automatically apply to previously enacted legislation addressing suspension
of prescription under emergency orders. Rather, the statute provides that for
any event following its ratification, by which the governor declares a state of
emergency or disaster, the Louisiana Supreme Court may enter an order to
suspend prescription or peremption. The only order issued pursuant to this
article is Proclamation No. 170 JBE 2021, addressing Hurricane Laura. Our
legislature previously enacted legislation addressing suspension of
12
prescription and peremption regarding Covid-19 in La. R.S. 9:5828-9:5830,
and it controls in this case; therefore, Anding’s claim prescribed on July 6,
2020.
Alternatively, Anding argues that under the doctrine of contra non
valentem, her claim was timely because she was unaware of the grand jury
proceedings regarding this case and because the Covid-19 shutdown
prevented her from hiring an attorney.
Our courts recognize four categories of contra non valentem that
prevent the running of prescription:
(1) Where there was some legal cause which prevented the
courts or their officers from taking cognizance of or acting on
the plaintiff’s action; (2) where there was some condition
coupled with the contract or connected with the proceedings
which prevented the creditor from suing or acting; (3) where the
debtor himself has done some act effectually to prevent the
creditor from availing himself of his cause of action; and (4)
where the cause of action is not known or reasonably knowable
by the plaintiff, even though this ignorance is not induced by
the defendant.
Plaquemines Parish Comm. Council v. Delta Dev. Co., 502 So. 2d 1034 (La.
1987).
Although Anding does not specify which category of contra non
valentem applies to her assertion that prescription was suspended because
she was unaware of the grand jury proceedings, we address her argument
under both the third and fourth categories in the interest of thoroughness.
The third category is implicated when (1) the defendant engages in conduct
which rises to the level of concealment, misrepresentation, fraud or ill
practice; (2) the defendant’s actions effectually prevented the plaintiff from
pursuing a cause of action; and (3) the plaintiff must have been reasonable in
his or her inaction. Carter, supra.
13
After a review of the record, we find that there is no indication that
anyone took any action that effectually prevented Anding from learning
about the grand jury proceedings. In fact, we note that while the
investigation was ongoing, Anding, through her former counsel, requested,
and MPD and/or the City provided her with, body camera footage related to
this incident. Given that the Appellees complied with her request shortly
after the incident, and in the absence of any other evidence suggesting that
the Appellees prevented Anding from receiving information about the
proceedings, we find that this category does not apply.
Likewise, we find that the fourth category does not apply to this case.
The fourth category of contra non valentem, commonly referred to as the
discovery rule, provides that prescription does not run against one who is
ignorant of the facts upon which his cause of action is based, as long as such
ignorance is not willful, negligent or unreasonable. Roane v. Jones, 47,860
(La. App. 2 Cir. 4/10/13), 116 So. 3d 700, writ denied, 13-1299 (La.
9/20/13), 123 So. 3d 175). Under the discovery rule, prescription begins to
run when a plaintiff obtains actual or constructive knowledge of facts
indicating to a reasonable person that he or she is the victim of a tort. Campo
v. Correa, 01-2707 (La. 6/21/02), 828 So. 2d 502. A prescriptive period
begins to run even if the injured party does not have actual knowledge of
facts that would entitle him to bring a suit, as long as he has constructive
knowledge of such facts. Id.
The record demonstrates that Anding had the requisite knowledge
about Brown’s death to trigger the running of prescription as evidenced by
her hiring an attorney and requesting body camera footage shortly after the
14
incident occurred. Therefore, we find that this category does not apply and
Anding had sufficient information to timely file suit.
Anding also contends that the first category of contra non valentem
applies to this case. As the Fourth Circuit observed in Felix v. Safeway Ins.
Co., 15-0701 (La. App. 4 Cir. 12/16/15)183 So. 3d 627, the first category of
contra non valentem encompasses circumstances in which courts must close
following a natural disaster, and thus, it covers “the law of catastrophes: war,
flood, hurricane, epidemic, strike, profound illness, etc.” Felix, supra.
However, the mere occurrence of a catastrophe “does not suffice to invoke
the maxim [contra non valentem]: the impossibility of acting must be
absolute, for example, because the courts were closed or inaccessible.” Id.
Accordingly, to invoke the first category, a plaintiff must establish not only
the occurrence of a catastrophe but also a factual impediment to filing suit.
Id.
In citing Cipriano v. Pulitzer, 07-0010 (La. App. Cir. 5/23/07), 959
So. 2d 558, Anding specifically argues that the Covid-19 shutdown was a
legal cause to suspend prescription under the first category because it
prevented her from obtaining representation after her former counsel
disengaged from the case. We disagree and find that Cipriano, supra, is
distinguishable.
In Cipriano, supra, the plaintiff was involved in an accident on April
11, 2005, and on August 29, 2005, Hurricane Katrina hit the New Orleans
area. On April 12, 2006, the plaintiff filed suit and defendants filed an
exception of prescription, which the trial court granted because the suit was
filed one day late. On appeal, the plaintiff, in part, argued that under the first
category of contra non valentem, his suit had not prescribed “because all
15
available courts of jurisdiction were closed due to Hurricane Katrina, [and]
he had no legal recourse for those days.” The Fourth Circuit found that
because all available courts with jurisdiction over plaintiff’s cause of action
were closed from August 29, 2005, until September 2, 2006, when the
Nineteenth Judicial District Court reopened, a legal cause existed to prevent
courts from recognizing plaintiff’s cause of action.
In contrast, we find that Anding was not impeded from seeking legal
recourse and timely filing this suit. The record shows that Anding initially
retained counsel, Matthew Hemmer, by at least June 20, 2019, a few days
after the incident occurred; however, it is unclear from the record exactly
when he disengaged from the case; presumably, he remained over the case
until at least July 29, 2019.7 Jerry Coleman (“Coleman”), Brown’s brother,
provided in his affidavit, that after Brown’s funeral he tried to obtain legal
services from Macy Allen, but stated that after a year she stopped taking his
calls and never told him why she couldn’t represent him. Coleman stated
that he then attempted to contact numerous attorneys during the Covid-19
shutdown, but legal offices were closed and he could not get anyone to
return his calls.
We cannot conclude that the Covid-19 shutdown was the sole
impediment to Anding’s inability to retain counsel and file her claim. As
previously noted, Anding initially retained counsel shortly after Brown died
and thereafter counsel disengaged from the case. Colemen provided that he
attempted to hire another attorney sometime in 2019, after Brown’s funeral,
but was unable to officially hire her or receive information about the case for
7
This is the date of the last filing by the original counsel in this case as evidenced
in the record.
16
about a year and that it was not until the shutdown that he tried to find
another attorney, but was unable to do so. Because Anding struggled to
obtain counsel long before the Covid-19 shutdown occurred, this event alone
was not the sole impediment to Anding filing suit.
Moreover, while we acknowledge that the Covid-19 shutdown is
similar to the devastation following Hurricane Katrina, insofar as both
disasters were so devastating that our legislature enacted special statutes to
address the issue of prescription, we cannot say that the temporary in-person
closures of non-essential businesses prevented Anding from timely filing her
claim. Unlike the plaintiff in Cipriano, supra, who was prevented from
filing his claim due to complete court closures for a year following
Hurricane Katrina, Anding was not prevented from filing her claim in court
during the shutdown. During the Covid-19 shutdown, all non-essential
businesses, including law offices and courts, were only temporarily
prevented from conducting business in person.
To accommodate this change, courts implemented the use of
electronic filing and virtual tools to continue legal proceedings. While this
may have impacted the manner by which courts and law offices conducted
business, it in no way indicates that courts were completely shut down,
preventing any access to them. This is evidenced by the enactment of La.
R.S. 9:5828-9:5830 which continued the suspension of prescription and
peremption for certain claims in order to accommodate litigants during the
shutdown. Because Anding still had access to courts, we find that the
Covid-19 shutdown was not an absolute impediment to Anding seeking legal
17
recourse and timely filing her case.8 Accordingly, we find that Anding’s
arguments regarding suspension of prescription under contra non valentem
do not have merit.
Assignment of Error 3
Finally, Anding argues that the trial court erred in failing to render
judgment as to the exception of no right of action, no cause of action, and
exceptions of vagueness and ambiguity. Because we find that Anding’s
claims are barred by prescription, we decline consideration of these
arguments.
CONCLUSION
For the reasons expressed, the judgment is affirmed. Costs of this
appeal are cast against the Appellant.
AFFIRMED.
8
In petition, Anding also argued that the 30-day suspension of prescription
enacted to address the damage caused by Hurricane Laura also afforded her additional
time by which to file her claim. While we recognize that the Louisiana Supreme Court
suspended prescription for 30 days commencing August 21, 2020, until September 20,
2020, we find that the special suspension did not extend Anding’s deadline. Pursuant to
La. R.S. 9:5828-5830, the prescriptive period applicable to this case, Anding’s claim
expired on July 6, 2020, and could not be extended under the later enacted Hurricane
Laura order.
18