128 So. 3d 306
La. Ct. App.2013Background
- Herrera sued Gallegos and USAgencies for damages, filing her petition on May 8, 2008, alleging the collision occurred on May 8, 2007.
- Defendants repeatedly raised an exception of prescription, arguing the accident occurred on May 7, 2007, and the suit was filed after the one-year prescriptive period.
- Defendants attached a Kenner Police Department call log and a custodian-of-records affidavit to their memoranda but never formally introduced those documents into evidence at hearings.
- The trial court initially overruled defendants’ exceptions (with opportunities to re-urge), but on January 14, 2013 sustained a later exception after considering the call log and affidavit and dismissed Herrera’s suit with prejudice.
- The appellate court reversed, holding the trial court erred by relying on documents that were never properly admitted; because no evidence was admitted by defendants, prescription was not proven and the petition’s allegation (May 8, 2007) must be accepted as true.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Herrera’s suit was prescribed | Herrera: complaint alleges May 8, 2007 accident; insurance records list May 8, so suit timely | Defendants: Kenner PD call log and custodian affidavit show May 7, 2007, so suit untimely | Reversed: defendants failed to formally admit evidence; prescription not proved, accept petition’s allegation as true |
| Proper consideration of evidence on exception | Herrera: trial court should credit her pleadings and insurance docs; burden remained with defendant | Defendants: court may consider the police call log affidavit to meet burden | Held for Herrera: court cannot consider documents not formally introduced into evidence |
Key Cases Cited
- Carter v. Haygood, 892 So.2d 1261 (La. 2005) (conflicts in evidence on prescription resolved to preserve plaintiff’s suit when appropriate)
- Denoux v. Vessel Mgmt. Servs., Inc., 983 So.2d 84 (La. 2008) (appellate courts may not review evidence not properly introduced into the record)
- Cichirillo v. Avondale Indus., Inc., 917 So.2d 424 (La. 2005) (failure to properly offer evidence can alter outcome on prescription issues)
- Taranto v. Louisiana Citizens Prop. Ins. Corp., 62 So.3d 721 (La. 2011) (standard of review and burden on exception of prescription)
- Adams v. Grefer, 99 So.3d 1083 (La. App. 5 Cir.) (review of trial court findings on peremptory exception of prescription under manifest error standard)