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Albe v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

September 17, 2014

MICHELLE ALBE
v.
CITY OF NEW ORLEANS, PHOTO SAFETY PROGRAM

Page 362

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2008-12542, DIVISION " A" . Honorable Tiffany G. Chase, Judge.

Jennifer N. Willis, WILLIS & BUCKLEY, APC, New Orleans, LA; Joseph G. Albe, Attorney at Law, New Orleans, LA; Robert A. Lenter, Attorney at Law, Metairie, LA; Roy F. Amedee, Jr., Attorney at Law, New Orleans, LA; Edward R. Washington, III, Attorney at Law, New Orleans, LA; Anthony S. Maska, THE LAW FIRM OF EDWARD S. BOPP, Mandeville, LA; Gregory John McDonald, Kristin Mosely Jones, BIENVENU, FOSTER, RYAN & O'BANNON, LLC, New Orleans, LA; Joseph McMahon, III, Attorney at Law, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLANT -- VERNETTA BALLARD.

Kim M. Boyle, Allen C. Miller, PHELPS DUNBAR LLP, New Orleans, LA; Jessica C. Huffman, Attorney at Law, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLEE -- AMERICAN TRAFFIC SOLUTIONS, INC.

Patricia S. LeBlanc, Carl Butler, Michael L. Fantaci, Deborah A. Villio, LEBLANC BUTLER, LLC, Metairie, LA; Shawn Lindsay, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, City Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE -- CITY OF NEW ORLEANS.

(Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Daniel L. Dysart).

OPINION

Page 363

PAUL A. BONIN, J.

[2014-0186 La.App. 4 Cir. 1] Vernetta Ballard, one of the current plaintiffs in this putative class-action lawsuit, concedes that her tort claims against the defendants, the City of New Orleans and its contractor, American Traffic Solutions, Inc., would be prescribed because they were not asserted within the applicable one-year prescriptive period. But, she argues, that by applying the softening doctrine of contra non valentem, the one-year prescriptive period is tolled and her claims are timely, and thus the district court's sustaining of American Traffic's exception of prescription and dismissal with prejudice of her lawsuit against it should be reversed.

American Traffic operates a traffic enforcement system using cameras. After Mrs. Ballard failed to timely pay two camera-generated red-light citations, the defendants issued two delinquency notices, both of which threatened her with the

Page 364

possibility of " jail time" if she persisted in her refusal to pay the citations. The parties now all agree that there is no legal basis or justification for such a threat.

The kernel of Mrs. Ballard's invocation of contra non valentem is her assertion that American Traffic prevented her from timely filing suit because it [2014-0186 La.App. 4 Cir. 2] supplied her with false information about the possibility of jail time and did not take any corrective action to notify her of the falsity of its threat of the possibility of jail time. We conclude that Mrs. Ballard's ignorance of the law - as opposed to her ignorance of any facts - does not toll the applicable one-year prescriptive period. And because we also conclude that the trial judge's factual findings were not clearly wrong and were reasonable and that her application of the controlling law was correct, we affirm the judgment dismissing with prejudice Ms. Ballard's suit against American Traffic.[1] We explain our decision in greater detail below.

I

At the outset we provide a brief description of the background of these proceedings.[2]

This case arises out of the City of New Orleans' Automated Traffic Enforcement System. The City and American Traffic entered into a contract whereby American Traffic installed traffic cameras on select City streets, issued citations, and collected monies for traffic violations.

It was Michelle Albe, and not Mrs. Ballard, who originally filed suit on December 8, 2008, against the City asking the district court to rule that the City's [2014-0186 La.App. 4 Cir. 3] Automated Traffic Enforcement System ordinance is unconstitutional and reverse a traffic ticket issued to her under the system. Mrs. Albe amended her petition several times to add American Traffic as well as tort claims for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress arising out of the mental anguish associated with receiving delinquency notices with the " jail time" language. The specific objectionable language was contained on the back of the delinquency notices: " Failure to respond will cause this matter to be submitted to a collection agency in accordance with applicable state and federal laws and additional fines and possible jail time may be assessed against you. It may also result in the vehicle being immobilized and/or impounded." [3] (emphasis added)

Mrs. Albe amended her suit on July 16, 2009, to include several class action claims. It appears that the scope of the class was then narrowed to comprise only those individuals

Page 365

who received delinquency notices threatening ...


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