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Stoll v. Stich

Court of Appeals of Louisiana, Fifth Circuit

December 16, 2014

STEVEN M. STOLL
v.
JUDITH M. STICH A/K/A JUDITH M. STOLL A/K/A JUDITH M. LETELLIER & ELIZABETH A. STICH A/K/A ELIZABETH A. STOLL A/K/A ELIZABETH A. LETELLIER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 716-329, DIVISION " A" . HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING.

STAVROS PANAGOULOPOULOS, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

Panel composed of Judges Robert A. Chaisson, Robert M. Murphy, and Stephen J. Windhorst.

OPINION

Page 251

[14-261 La.App. 5 Cir. 2] ROBERT A. CHAISSON, Judge.

Steven Stoll appeals a judgment sustaining an exception of no cause of action in this defamation action against his ex-wife, Judith Marie Stich, and his adopted daughter, Elizabeth Stich. For the following reasons, we amend the portion of the judgment sustaining the exception of prescription, affirm the portion of the judgment sustaining the exception of no cause of action, and remand the matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In his petition, Mr. Stoll alleges that on July 27, 2009, the defendants knowingly made false statements to members of the Jefferson Parish Sheriff's Office, in which they alleged that he had been raping and molesting Elizabeth Stich since she was nine years old. As a result of these accusations, Mr. Stoll was arrested in January of 2010, and was incarcerated for approximately nine days until he was able to make bail. The petition further states that during Mr. Stoll's incarceration, Judith Stich repeated these allegations to third persons at Mr. Stoll's [14-261 La.App. 5 Cir. 3] bank and church. Additionally, the petition states that on numerous occasions over the two years since the initial accusation, until the conclusion of his criminal trial on June 22, 2011, the defendants continued to repeat their false statements about Mr. Stoll to members of the Jefferson Parish Sheriff's and District

Page 252

Attorney's offices. Lastly, the petition states that " [t]hese allegations are continuing to be made by the Defendants against the Plaintiff through the present day in the venue of Domestic Court in a custody matter." [1] Mr. Stoll filed his petition for defamation on June 22, 2012. One of the defendants, Judith Stich, urged exceptions of prescription and no cause of action.[2] The trial court sustained both exceptions, and dismissed the suit with prejudice as to Judith Stich. Mr. Stoll now appeals that judgment.

DISCUSSION

Exception of Prescription

Defamation is a delictual action subject to the liberative prescription of one year. La. C.C. art. 3492. Normally, the exceptor bears the burden of proof at the trial of the peremptory exception of prescription; however, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Milbert v. Answering Bureau, Inc., 13-022 (La. 6/28/13), 120 So.3d 678, 684. Mr. Stoll alleges that the defendants have made numerous defamatory statements against him beginning on July 27, 2009, and continuing through the date of the filing of his petition on June 22, 2012. It is evident on the face of the petition that all statements made prior to June 22, 2011, more than one year prior to the filing of his petition, have prescribed. The burden is therefore on Mr. Stoll to show that his cause of action as to those statements has [14-261 La.App. 5 Cir. 4] not prescribed. During the hearing on Ms. Stich's exceptions, Mr. Stoll argued for the first time, without citation to any supporting authority, that prescription was suspended or interrupted during the pendency of the criminal proceedings against him, in order that he not forfeit his right against self-incrimination. The trial court, apparently rejecting that argument, and further finding that each and every act of repeating the statement is a separate cause of action, sustained the exception of prescription as to the statements made to individuals at Mr. Stoll's bank and church in January of 2010. We agree that the statements made to the bank and ...


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