Suhren v. Gibert
55 So. 3d 941
La. Ct. App.2011Background
- Inter-family dispute over Nerhus Properties, Inc. with Suhren, Hamblin, Cheryl Gibert, and Eugene Gibert owning shares.
- Board of Nerhus comprised of Suhren’s relatives since 1987; Suhren becomes suspicious of governance by late 1990s.
- November 2004 Suhren sued the directors and Nerhus for fiduciary breaches, alleged mismanagement, and usurpation of opportunities.
- Suhren amended complaints twice, adding usurpation and ratification claims; Hamblin later dismissed with prejudice.
- District court granted summary judgment, per La. R.S. 12:1502, finding Suhren’s claims prescribed/perempted and dismissed with prejudice.
- Appellant appeals; court reviews de novo and remands to distinguish which claims, if any, are not prescribed under 12:1502.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is La. R.S. 12:1502 peremptive or hybrid? | Suhren argues 12:1502 is not peremptive. | Appellees contend it has peremptive attributes and is largely peremptive. | Statute is prescriptive with peremptive elements; not a pure presumption. |
| Are some claims timely under 12:1502 or under 12:96? | Some claims within three years may not be prescribed. | Apply 12:1502/12:96 timelines to determine prescription. | Remand to identify non-prescribed claims under 12:1502 and 12:96. |
| May continuing tort doctrine apply to 12:1502 claims? | Continuous conduct could toll/presume lack of prescription. | Continuing tort doctrine inconsistent with 12:1502(E)’s non-interruption language. | Continuing tort does not apply to 12:1502 claims. |
| Are the 12:1502 claims under director/officer presumptively time-barred? | Some actions could evade preemption if not timely. | 12:1502 time bars apply as per statute and case law. | Claims subject to 12:1502 time limits; remand to separate unprescribed claims. |
| Should amendment be allowed to cure prescription under 934? | Amendment could cure prescription gaps. | If grounds cannot be removed, amendment not permitted. | Remand to consider amendment under Art. 934 if prescription curable. |
Key Cases Cited
- Wooley v. Lucksinger, 14 So.3d 311 (La.App. 1 Cir. 2008) (hybrid prescriptive/peremptive nature of 12:1502; not strictly peremptive)
- Brumfield v. McElwee, 976 So.2d 234 (La.App. 4 Cir. 2008) (continuing tort doctrine; not applicable under 12:1502)
- Scott v. American Tobacco, 949 So.2d 1266 (La.App. 4 Cir. 2007) (continuing tort doctrine discussion)
- Bustamento v. Tucker, 607 So.2d 532 (La.1992) (peremption principles in Louisiana law)
- Flowers v. Rausch, 364 So.2d 928 (La.1978) (peremption characteristics in state law)
- Conerly v. State Through Louisiana State Penitentiary & Dept. of Corrections, 858 So.2d 636 (La.App. 1 Cir. 2003) (statutory time limits interpreted as prescriptive with no interruption)
- Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986) (statutory interpretation of prescriptive periods)