Occidental Properties Ltd. v. Zufle, 165 So. 3d 124

Occidental sued to foreclose a promissory note and mortgage originally dated 1988; the note was amended in 1998 to extend maturity to September 1, 2008. Occidental acquired the note by assignment in 1998.
Occidental first filed suit on the same note on September 8, 2003; that action was later dismissed as abandoned in 2010 and that dismissal was affirmed on appeal.
Occidental filed a second foreclosure action on April 21, 2011; the trial court entered judgment in favor of Occidental and a writ issued that led to a sheriff’s sale being scheduled.
Brae intervened asserting a superior judicial mortgage and filed an exception of prescription arguing the note was prescribed because Occidental accelerated the note by filing the 2003 suit.
Occidental attempted to oppose the exception with photocopied receipts and affidavits (including an out-of-country witness affidavit) alleging payments that interrupted prescription; the trial court excluded the affidavits as hearsay and ultimately granted Brae’s exception of prescription and denied Occidental’s motion for new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the promissory note is prescribed	The 2003 suit did not start prescription because subsequent payments (receipts/affidavits) interrupted prescription	The 2003 suit accelerated the note and started the 5-year prescription, so the 2011 suit is time-barred	Note was accelerated by the 2003 suit; five-year prescription elapsed before the 2011 suit — exception of prescription sustained
Admissibility of affidavits/receipts in exception hearing	Affidavits and receipts are competent evidence to show interruption of prescription	Affidavits are hearsay and inadmissible in an exception-of-prescription trial unless unobjected-to	Affidavits were hearsay and inadmissible; no competent evidence was introduced, so ruling reviewed for legal correctness
Whether judicial notice of prior proceeding was permissible	Occidental opposed taking judicial notice	Brae requested judicial notice of the 2003 suit to show acceleration	Court took judicial notice of its prior proceeding; this supported finding of acceleration
Whether denial of new trial was an abuse of discretion	Occidental sought new trial to produce live testimony from foreign witness to prove payments	Brae argued denial was not appealable alone; evidence was not produced despite multiple opportunities	Trial court did not abuse discretion in denying new trial given refusal/delay to produce witness and prior opportunities

Sperandeo v. Osabas, 33 So.3d 269 (La. App. 5 Cir. 2010) (timing for raising peremptory exceptions)
Alvarez v. Se. Commercial Cleaning, LLC, 136 So.3d 329 (La. App. 5 Cir. 2014) (standard of review for exceptions when evidence introduced)
Dugas v. Bayou Teche Water Works, 61 So.3d 826 (La. App. 3 Cir. 2011) (review standards for exception hearings)
Babin v. Babin, 10 So.3d 784 (La. App. 5 Cir. 2009) (acknowledgement interrupts prescription)
Morris v. Westside Transit Line, 841 So.2d 920 (La. App. 5 Cir. 2003) (prescriptive statutes construed narrowly against prescription)
Caro v. Bradford White Corp., 678 So.2d 615 (La. App. 5 Cir. 1996) (affidavits are hearsay and inadmissible in exception trial absent statutory authorization)
Boneno v. Lasseigne, 514 So.2d 276 (La. App. 5 Cir. 1987) (limitations on affidavit use in exception hearings)
Board of Com’rs. v. Louisiana Com’n on Ethics, 416 So.2d 231 (La. App. 1 Cir. 1982) (affidavit hearsay principle)
Smith v. Smith, 31 So.3d 453 (La. App. 5 Cir. 2010) (failure to object to hearsay can waive the objection)
Bailey v. Robert V. Neuhoff Ltd. P’ship, 665 So.2d 16 (La. App. 1 Cir. 1995) (denial of new trial considered on appeal incidental to final judgment)
Territo v. Schwegmann Giant Supermarkets, Inc., 662 So.2d 44 (La. App. 5 Cir. 1995) (same)