The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 073 5
DERRICK JEROME ALLEN
VERSUS
SHIRLEY MAE MILES BROWN, ERIC GERARD BROWN,
V TIA SYNETTE BROWN BONDS, JOY LARISSA BROWN WHITE
Judgment Rendered: MAY 18 2023
fcc j * *
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. C706049
Honorable Timothy E. Kelley, Judge Presiding
Derrick Jerome Allen In Proper Person
St. Gabriel, Louisiana
Morgan Field Attorney for Defendants/Appellees,
Baton Rouge, Louisiana Shirley Mae Miles Brown, Eric
Gerard Brown, Tia Synette Brown
Bonds, Joy Larissa Brown White
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
PENZATO, J.
Plaintiff, Derrick Jerome Allen, an inmate housed at the Elayn Hunt
Correctional Center, appeals the dismissal of his petition for damages as
prescribed. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On March 24, 2021, Mr. Allen filed the instant " Petition for Damages/
Wrongful Death and Survival Actions," naming Shirley Mae Miles Brown, Eric
Gerard Brown, Tia Synette Brown Bonds, and Joy Larissa Brown White as
defendants. In his petition, Mr. Allen asserted that his father, Hezekiah Brown, Jr.,
suffered a fatal heart attack and died on March 22, 2020. Mr. Allen alleged that the
defendants caused or contributed to Mr. Brown' s death.
In response, the defendants filed a peremptory exception raising the
objection of prescription, noting therein that Mr. Brown died on March 22, 2020,
but Mr. Allen did not file his petition until March 24, 2021. 1 At a hearing on
November 23, 2021, the trial court granted the exception raising the objection of
prescription and dismissed Mr. Allen' s lawsuit. The trial court signed a judgment
in accordance with its ruling on December 29, 2021. Mr. Allen appealed. 2
1 The defendants also filed exceptions raising the objections of no right of action and lis pendens.
Because the trial court granted the exception raising the objection of prescription, it did not
address the exceptions raising the objections of no right of action and lis pendens at the
November 23, 2021 hearing. Silence in a judgment of the trial court as to any issue, claim or
demand placed before the court is deemed a rejection of the claim and the relief sought is
presumed to be denied. Schoolhouse, Inc. v. Fanguy, 2010- 2238 ( La. App. 1 Cir. 6/ 10/ 11), 69
So. 3d 658, 664.
Z On November 29, 2021, Mr. Allen filed a motion requesting a rehearing and/ or reconsideration
of the judgment dismissing his lawsuit as prescribed, which was denied on December 1, 2021.
Mr. Allen then filed a petition for appeal on December 6, 2021, prior to the December 29, 2021
signing of the judgment on the defendants' exception. To the extent that a motion for appeal is
premature, any defect arising from a premature motion for appeal is cured once a final judgment
has been signed. See Overmyer v_ Traylor, 475 So. 2d 1094, 1094- 95 ( La. 1985) ( per curiam);
Green v. Patient Compensation Fund Oversight Board, 2021- 1310 ( La. App. 1 Cir. 7/ 5/ 22), 344
So. 3d 161, 165 n. 5; see also La. C. C. P. arts. 1911, 1915, and 1918.
2
MOTION TO DISMISS APPEAL
As a preliminary matter, we address the motion to dismiss appeal filed by
Shirley Mae Miles Brown on November 1, 2022. On December 22, 2022, Ms.
Brown' s motion was referred to this panel, as the panel to which the appeal was
assigned.
After the record was lodged, this court issued a briefing schedule requiring
Mr. Allen to file his brief on or before August 7, 2022. Because no brief was filed
by that deadline, this court issued a Notice of Abandonment (" NOA") noting that
the appeal would be dismissed if Mr. Allen did not file his brief by September 14,
2022.
Prior to the expiration of the NOA deadline, this court, on motion of Mr.
Allen, granted Mr. Allen an extension of his briefing deadline, requiring that he file
his brief " on or before October 13, 2022, or his appeal shall be dismissed as
abandoned." On October 26, 2022, Mr. Allen requested another extension. On
November 1, 2022, this court granted the extension and ordered Mr. Allen to file
his brief on or before November 14, 2022. Mr. Allen subsequently filed his brief
on November 10, 2022.
At the relevant time, Rule 2- 8. 6 of the Uniform Rules, Courts of Appeal, did
not provide for an extension for an appellant to file a brief beyond the
abandonment period.' However, in Succession ofBellande, 2015- 1427 ( La. App. 1
Cir. 4115116), 2016 WL 1546132, * 1 ( unpublished), under similar circumstances,
this court did not dismiss an appeal where we had granted an extension of the
briefing schedule past the NOA deadline, reasoning as follows:
W] hile technically Rule 2- 8. 6 of the Uniform Rules, Courts of
Prior to January 1, 2023, Rule 2- 8. 6 provided, in pertinent part, that "[ i] f an appellant does not
file a brief within 30 days after such notice [ of abandonment] is transmitted, the appeal shall be
dismissed as abandoned." Rule 2- 8. 6 was amended May 2, 2022, with an effective date of
January 1, 2023, and now provides that "[ i] f an appellant does not file a brief within 30 days
alley such notice [ of abandonment] is transmitted, the appeal shall be subject to dismissal as
abandoned."
3
Appeal, does not provide for an extension to file appellants' brief
beyond the abandonment period, it was granted by this court.
Pursuant to La. C. C.P. art. 2164, the appellate court can render any
judgment which is just, legal, and proper upon the record upon appeal.
Under the unique facts of this case, we decline to dismiss the appeal.
Considering the foregoing circumstances, and in light of Succession of
Bellande, we deny Ms. Brown' s motion to dismiss the appeal.
ASSIGNMENTS OF ERROR
Mr. Allen submits four assignments of error:
1. Appellant will be denied a right to a proper judicial review on
appeal being the appellate record is incomplete.
2. The trial court erred when it denied [ appellant' s] motion requesting
a rehearing/ reconsideration.
3. The trial court erred when it disobeyed the La. Supreme Court' s
memorandum suspending deadlines because of covid virus.
4. Trial court erred when it went against clearly established law by
U.S. Supreme Court [ and] this court.
LAW AND DISCUSSION
Assignment of Error No. 1
In his first assignment of error, Mr. Allen contends the appellate record is
incomplete. On September 19, 2022, the appellate record herein was
supplemented with Mr. Allen' s motion requesting a rehearing and/ or
reconsideration of judgment, which was filed in the trial court on November 29,
2021, along with an attachment to that motion entitled " Pre -Trial Inserts of
Defendant, Doug Welborn, Clerk of Court for East Baton Rouge Parish," filed in
the matter of "Derrick Jerome Allen vs. Doug Welborn, Clerk of Court East Baton
Rouge Parish," case number 577, 205.
As the appellate record is complete, this assignment of error has no merit.
Assignment of Error No. 4
Finding the appellate record to be complete, we next address Mr. Allen' s
fourth assignment of error, wherein he argues that his petition for damages was
12
timely filed by mail.
Mr. Allen' s wrongful death and survival actions are delictual actions subject
to a prescriptive period of one year. See La. C. C. art. 3492. Additionally, wrongful
death and survival actions prescribe one year from the death of the deceased who
dies due to the fault of another. La. C. C. art. 2315. 2 ( B) and 2315. 1 ( A).
Ordinarily, the party urging prescription bears the burden of proof at trial of
the exception; however, if the petition is prescribed on its face, the burden shifts to
the plaintiff to show the action is not prescribed. Quinn a Louisiana Citizens
Property Ins. Corp., 2012- 0152 ( La. 11/ 2/ 12), 118 So. 3d 1011, 1017. When, as in
this case, no evidence is introduced at the hearing to support or controvert the
exception raising the objection of prescription, the exception must be decided upon
facts alleged in the petition with all allegations accepted as true. See La. C. C. P, art.
931; Harris v Breaud, 2017- 0421 ( La. App. 1 Cir. 2/ 27/ 18), 243 So. 3d 572, 578.
If no evidence is introduced 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. Harris, 243 So. 3d at
578- 79.
In his petition, Mr. Allen alleged that on March 22, 2020, his father, Mr.
Brown, drove by himself to a church in Baton Rouge, Louisiana, to do chores at
the church, suffered a fatal heart attack, and died. The record reflects that Mr.
Allen' s petition was filed on March 24, 2021. Because Mr. Allen' s petition is
prescribed on its face, the burden shifted to him to show that his wrongful death
and survival actions were not prescribed.
At the hearing on the defendants' exception, Mr. Allen argued that he mailed
his petition on March 19, 2021. On appeal, Mr, Allen argues that we should follow
what he contends was our previous ruling in Allen v Hatch, 2005 CA 0673 ( La.
5
App. 1 Cir. 6/ 21/ 06) ( unpublished).'
Mr. Allen failed to introduce any evidence as to the date he mailed his
petition. Moreover, this court has held that the " mailbox rule" pronounced in
Houston a Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382, 101 L. Ed. 2d 245
1988), does not apply to non -administrative, civil suits filed by prisoners.
Knockurn a Waguespack, 2012- 0277 ( La. App. 1 Cir. 1112/ 12), 111 So. 3d 370,
371- 72.
Thus, the trial court was legally correct in concluding that Mr. Allen' s claims
were prescribed. This assignment of error has no merit.
Assignment of Error No. 3
In this assignment of error, Mr. Allen argues that the Louisiana Supreme
Court suspended all deadlines because of the Covid- 19 pandemic.
On March 16, 2020, in response to the Covid- 19 pandemic, the governor
issued an emergency order suspending all legal deadlines. On June 9, 2020, the
legislature passed La. R.S. 9: 5828 through 5830 to approve and ratify the
governor' s suspension of prescriptive periods, and to provide for its applicability.
Louisiana Revised Statutes 9: 5829 ( A) provides that:
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.)
4 In Allen v_ Hatch, this court vacated a trial court judgment dismissing Mr. Robinson' s
defamation claims against the defendant and remanded the case because it was unclear whether a
motion to recuse filed by Mr. Robinson was denied prior to the rendition of the judgment.
Because we vacated the underlying judgment, we did not address Mr. Robinson' s assignment of
error regarding what he contended was a timely filed amended petition. In dicta contained in a
footnote, we indicated that while we made no determination as to whether Mr. Robinson stated a
cause of action in his amended petition, we noted that we were bound by the pronouncements of
the United States Supreme Court in Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382,
101 L. Ed. 2d 245 ( 1988), wherein the Court concluded that a prisoner' s pleadings are deemed
filed upon delivery of the document to prison authorities for forwarding to the district court.
rol
Mr. Allen' s wrongful death and survival actions prescribed one year from the
death of his father, or March 22, 2021. Thus, the emergency orders in response to
the Covid- 19 pandemic are not applicable to Mr. Allen' s claims.
This assignment of error has no merit,
Assignment of Error No. 2
In this assignment of error, Mr. Allen contends that the trial court erred in
denying his motion for rehearing and/or reconsideration without addressing any of
his claims and without reviewing the document attached to his motion, i.e., the
Pre -Trial Inserts of Defendant, Doug Welborn, Clerk of Court for East Baton
Rouge Parish."
The Louisiana Code of Civil Procedure does not provide for a motion to
reconsider with respect to any judgment, and such a motion is generally treated as
a motion for new trial. Harris v Louisiana Department of Public Safety &
Corrections, 2019- 1657 ( La. App. 1 Cir. 813120), 310 So. 3d 211, 214. A trial court
has much discretion in determining whether to grant a motion for new trial;
however, the denial of a motion for new trial should not be reversed on appeal
unless there has been an abuse of discretion. Harrington a Board ofSupervisors of
Louisiana State University and Agricultural and Mechanical College, 2021--1527
La. App. 1 Cir. 9/ 29/ 22), 2022 WL 4587873, * 4, writ denied, 2022- 01621 ( La.
1/ 11/ 23), 352 So. 3d 985.
In his motion for rehearing and/ or reconsideration, Mr. Allen argued that the
Clerk of Court for East Baton Rouge Parish " has a very long history of holding
his] pleading[ s] and law -suits, and filing said suits/pleadings late after the
deadline], or not filing such at all." He contended that the " Pre -Trial Inserts of
Defendant, Doug Welborn, Clerk of Court for East Baton Rouge Parish"
documented such action.
Mr. Allen has failed to provide any evidence that the Clerk of Court for East
7
Baton Rouge Parish received his petition on or before March 22, 2021, and failed
to file it until March 24, 2021. Thus, we find no abuse of the trial court' s vast
discretion in denying his motion for rehearing and/ or reconsideration without a
contradictory hearing. See Samuel v Harris, 2021- 1577 ( La. App. 1 Cir. 6/ 3122),
342 So. 3d 1009, 1012. This assignment of error has no merit.
CONCLUSION
For the foregoing reasons, we deny the motion to dismiss appeal filed by
Shirley Mae Miles Brown and maintain the appeal. We affirm the December 29,
2021 judgment of the trial court sustaining the peremptory exception raising the
objection of prescription and dismissing with prejudice Derrick Jerome Allen' s
petition. All costs of this appeal are assessed against Derrick Jerome Allen.
MOTION TO DISMISS APPEAL DENIED; JUDGMENT AFFIRMED.
M