113 So. 3d 346
La. Ct. App.2013Background
- Plaintiffs Allday and ACG sue Newpark and Massachusetts Bay for breach of contract and damages from Hurricanes Katrina and Rita repairs and insurance payments.
- Allday owned four units in the building at 2901 Causeway Blvd.; ACG leased units to conduct business activities there.
- Newpark sought a dilatory exception of prematurity based on an arbitration requirement in the Condominium Agreement; the court dismissed without prejudice but retained arbitration issues.
- Massachusetts Bay filed an exception of no right of action, which the court denied; Massachusetts Bay remained in the suit.
- In 2010, ACG was added as a plaintiff; the amended petition asserted similar claims against Newpark and Massachusetts Bay.
- Newpark then filed prescription and no right of action exceptions; the trial court sustained them by December 2011, dismissing ACG’s claims with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ACG’s amended petition shows prescription on its face | ACG: petition not prescribed on its face | Newpark: prescription started and is unbroken | No; amended petition not prescribed on its face |
| Who bears the burden to prove prescription | ACG bears burden if not on face | Newpark bears burden to prove prescription | Burden on Newpark; presumption of prescription not established |
| Whether the trial court erred in sustaining prescription | ACG evidence shows gaps in when repairs occurred | Newpark relied on vague pleadings | Trial court erred in sustaining prescription; remanded |
| Whether the case should be dismissed with prejudice | ACG seeks reversal and remand | Dismissal with prejudice appropriate if prescribed | Dismissal with prejudice reversed; remand for proceedings |
Key Cases Cited
- Huth v. Pickering, 966 So.2d 652 (La.App. 5 Cir. 2007) (interpretation of prescription against the obligee)
- Monson v. Travelers Property & Casualty Ins. Co., 30 So.3d 66 (La.App. 5 Cir. 2009) (burden-shifting on prescription when not on face)
- Jensen v. City of New Orleans ex rel. New Orleans Aviation Bd., 64 So.3d 298 (La.App. 5 Cir. 2011) (articulates pleading standards under Art. 931)