188 So. 3d 391
La. Ct. App.2016Background
- Hotard’s Plumbing filed a Petition on Open Account on June 4, 2014 against Monarch Homes and Ray Harney II seeking $15,237.83.
- Petition claimed an open account evidenced by an itemized statement and invoices, with more than 30 days’ past-due amount and attorney fees if judgment favored petitioner.
- Petition also alleged an alternative breach of contract for unpaid plumbing services; attached invoices reference a 6/15/06 job at Harney’s home and a 9/1/2010 project at Lot 241(306) South Pass.
- Appellees filed an exception of prescription, arguing three-year liberative period for open accounts under La. C.C. art. 3494; trial court granted the exception.
- At the prescription hearing no evidence was introduced; the trial court’s ruling rested on the petition’s allegations.
- Majority vacates the judgment and remands for an evidentiary record to determine whether the underlying agreement was an open account or a contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the action is governed by open account or contract prescription | Hotard’s argues both open account (3-year) and breach of contract (10-year). | Monarch/Harney contends the petition is an open account subject to 3-year prescription and that it was prescribed. | Remanded for evidentiary determination of the action’s character. |
| Whether the trial court erred by granting prescription absence of evidence | Petition supports open account and contract claims; no need to dismiss without evidence. | Burden on movant; if facially prescribed, plaintiff must show otherwise. | Remanded to develop a record; no final ruling on prescription. |
Key Cases Cited
- Sperandeo v. Osabas, 33 So.3d 269 (La. App. 5th Cir. 2010) (facts used to review dispositive findings on prescription under manifest error)
- Quinn v. Louisiana Citizens Prop. Ins. Corp., 118 So.3d 1011 (La. 2012) (petition allegations control prescriptive period when no evidence presented)
- Cichirillo v. Avondale Indus., Inc., 917 So.2d 424 (La. 2005) (burden-shifting framework on peremptory exceptions)
- Waguespack v. Judge, 877 So.2d 1090 (La. App. 5th Cir. 2004) (an action’s character informs applicable prescriptive period)
- Taranto v. La. Citizens Prop. Ins. Corp., 62 So.3d 721 (La. 2011) (burden on movant for peremptory exception; shift when facially prescribed)
- Campo v. Correa, 828 So.2d 502 (La. 2002) (role of burden in open account vs contract actions)
- Starns v. Emmons, 538 So.2d 275 (La. 1989) (distinguishes remedies and prescriptive periods for actions)