On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana. Trial Court No. C618439. The Honorable Kay Bates, Judge Presiding.
J. Arthur Smith, III, Adrienne D. Rachel, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Prather Warren.
James D. " Buddy" Caldwell, Attorney General, E. Wade Shows, Amy L. McInnis, Jeffrey K. Cody, Megan R. Stafford, Special Assistant Attorneys General, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
BEFORE: PARRO, McDONALD, AND CRAIN, JJ.
[2014 0310 La.App. 1 Cir. 2]
Prather Warren appeals a judgment of the trial court that sustained a peremptory exception raising the objection of prescription and dismissed his claims against the defendant, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. The Board has answered the appeal seeking frivolous appeal damages. We affirm the judgment and deny the relief requested in the Board's answer.
In January 2006, LSU's Office of Human Resource Management received a complaint that Warren, an LSU employee, was viewing pornography on an LSU computer. An investigation began and, on January 14, 2006, a forensic copy was made of the computer identified as Warren's work computer. When a pornographic image depicting juveniles was discovered among the pornography contained on the copy, the LSU Police Department was contacted and, on January 17, 2006, a search warrant was obtained to search for child pornography on the forensic copy. That search revealed " numerous images of pornography involving juveniles." Warren was arrested on January 19, 2006, for nine counts of possession of pornography involving juveniles. However, Warren was not prosecuted for the charges.
On January 16, 2013, Warren filed the instant suit against the Board, asserting a claim for malicious prosecution. Warren alleged that the underlying prosecution was terminated on January 19, 2012, when the statute of limitations on the criminal charges expired and the charges were abandoned. In response, the [2014 0310 La.App. 1 Cir. 3] Board filed a peremptory exception raising the objection of prescription, claiming that the time limitation for instituting prosecution expired earlier than the date alleged by Warren and that Warren's malicious prosecution action was untimely because it was filed outside the one-year prescriptive period that began on the date the criminal prosecution was abandoned.
At the hearing on the exception, Warren testified and documentary evidence was introduced, including LSU's incident report, the application for the search warrant, and the arrest warrant. Based on the evidence presented, the trial court determined that the offense must have occurred before the forensic copy of Warren's computer was made on January 14, 2006, and that the charges were abandoned when he was not prosecuted within six years of that date. Therefore, the trial court reasoned that the claim for malicious prosecution prescribed on January 15, 2013, one day after one year from the date the charges were abandoned; thus, Warren's suit, which was filed on January 16, 2013, was untimely. The trial court rendered judgment sustaining the peremptory exception raising the objection of prescription and dismissing Warren's suit. This appeal followed.
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. Civ. Code art. 3447. A claim for malicious prosecution is subject to the one-year liberative prescriptive period for delictual actions. SeeMurray v. Town of Mansura, 06-355 (La.App. 3 Cir. 9127106), 940 So.2d 832, 838, writ denied, 06-2949 (La. 2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007). However, the cause of action arises, and prescription begins to run, only after the underlying prosecution is dismissed or terminated. Murray, 940 So.2d at 838. Pursuant to Louisiana Code of Criminal [2014 0310 La.App. 1 Cir. 4] Procedure article 572, the underlying " prosecution" in this case terminated when the charges against Warren were abandoned. See Walls v. State, 95-1133 ...