Prevo v. State ex rel. Department of Public Safety & Corrections Division of Probation & Parole
187 So. 3d 395
La.2015Background
- Meiko Prevo was arrested in April 2000 for crime against nature but pleaded to misdemeanor criminal mischief; she completed probation and was not required to register as a sex offender.
- In September 2008, after a separate arrest, Prevo’s probation officer David Phillips reviewed state records showing a 2000 disposition for crime against nature and told Prevo she had to register as a sex offender; Prevo protested and had her 2000 attorney contact Phillips, but she nonetheless registered on September 9, 2008.
- Prevo repeatedly told probation officers she was not a sex offender; she obtained court minutes by September 2010 confirming the 2000 conviction was for criminal mischief, not a sex offense.
- New probation officer Mike Ware investigated, confirmed the misdemeanor disposition, and initiated removal from the registry; Ware notified Prevo by letter dated October 11, 2010.
- Prevo sued the State on October 7, 2011 alleging coercion and injury from wrongful registration. The State raised prescription (one-year tort prescriptive period); the district court sustained the exception and dismissed. The court of appeal reversed; the Louisiana Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suit is prescribed under La. Civ. Code art. 3492 (one-year tort prescriptive period) | Prevo argued delay was excused by contra non valentem because State misrepresentations hindered her from suing | State argued Prevo knew she was not a sex offender by 2008/2010 and filed suit more than one year later, so claim is prescribed | Held: Claim prescribed on its face; dismissal affirmed (contra non valentem inapplicable) |
| Whether the third category of contra non valentem applies (defendant’s concealment/ misrepresentation prevented suit) | Prevo contended Officer Phillips’ statements and threats lulled her into inaction and prevented suit | State argued Phillips relied on official records, did not willfully conceal or fraudulently misrepresent, and did not prevent Prevo from investigating or suing | Held: Prevo failed to prove element 1 (no actionable concealment/fraud) and element 2 (State did not prevent her from pursuing remedies); contra non valentem not met |
| Whether Prevo’s inaction was reasonable given her education and mental-health history | Prevo argued limited education and mental illness made delay reasonable | State argued Prevo was reasonably capable (contacted counsel in 2008 and obtained records by 2010) and therefore delay was unreasonable | Held: Prevo’s actions (contacting counsel and obtaining records) show she knew facts by 2010; delay until Oct. 2011 unreasonable |
| Whether the injury constituted a continuing tort that would toll prescription until abatement | (Raised by dissent) Prevo’s harm continued while wrongly listed; operating cause persisted until registry removal in Oct. 2010 | State viewed the wrongful act as discrete in 2008 (the erroneous registration) and damage thereafter as continuing effects of that act | Held: Majority treated injury as discrete and prescriptive period ran; dissent argued continuing tort and would have found suit timely, but majority rejected that view |
Key Cases Cited
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (three-part test for third category of contra non valentem)
- Rajnowski v. St. Patrick’s Hospital, 564 So.2d 671 (La. 1990) (mere misstatements do not constitute fraud or concealment to suspend prescription)
- Nathan v. Carter, 372 So.2d 560 (La. 1979) (threats to deter plaintiff from contacting counsel can trigger contra non valentem)
- South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La. 1982) (prescription on a continuing tort does not run until tortious conduct causing injury is abated)
- Crump v. Sabine River Authority, 737 So.2d 720 (La. 1999) (discussing contra non valentem categories and application)