Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
643, 998, Sec. 26 The Honorable Donald R. Johnson, Judge
Nicholas M. Graphia, Attorney for Plaintiff/ Appellant,
Donald Joe Calloway
R. Baringer James S. Holliday, Jr. Benjamin J.B. Klein James
R. Bullman Jarred W. Schick, Attorneys for Defendant/
Appellee, Anna Lobrano
BEFORE: PETTIGREW, McDONALD, AND CALLOWAY, JJ.
Donald Joe Calloway,  appeals a judgment granting the exceptions
raising the objections of no cause of action and prescription
filed by defendant, Anna Lobrano, and dismissing his claims
with prejudice. For the reasons stated herein, we affirm.
AND PROCEDURAL HISTORY
Calloway filed suit against Ms. Lobrano on November 23, 2015,
seeking to be reimbursed for a $400, 000.00 check he issued
to her on August 15, 2012. Mr. Calloway alleged that he
delivered the check to his late grandfather, T Joe Calloway,
who was Ms. Lobrano's boyfriend, and that his grandfather
presented the check to Ms. Lobrano, who negotiated it. Mr.
Calloway alleged that he had made amicable demand on Ms.
Lobrano, but she had not returned the funds. The petition
stated the causes of action were "enrichment without
cause" pursuant to La. C.C. art. 2298 and
"obligation to restore" pursuant to La. C.C. art.
Lobrano filed a peremptory exception raising the objection of
no cause of action, and in the alternative, raising the
objection of prescription, claiming that Mr. Calloway failed
to plead a prima facie cause of action for a claim of unjust
enrichment. Ms. Lobrano also asserted that Mr. Calloway's
claim was prescribed pursuant to La. C.C. art. 3494(3), since
the funds should have been characterized as a loan.
hearing was held on February 22, 2016, wherein the trial
court sustained Ms. Lobrano's exception raising the
objection of prescription and took the exception raising the
objection of no cause of action under
advisement. On the same date as the hearing, Mr.
Calloway filed an amended petition alleging the elements of a
cause of action of unjust enrichment and asserting,
alternatively, that the check made payable to Ms. Lobrano was
a loan of which he expected to be repaid a year from the date
of the check. It is unclear from the record if the trial
court was aware of the amended petition at the time of the
hearing or when it issued its oral ruling. On February 29,
2016, the trial court issued a ruling sustaining the
exceptions raising the objections of no cause of action and
of prescription, and judgment was signed accordingly on March
Calloway filed a motion for new trial, which the trial court
heard on May 16, 2016. The trial court denied the motion for
new trial, and judgment was signed on May 20, 2016. Mr.
Calloway moved for appeal from a final judgment rendered
March 18, 2016. He also acknowledged that a motion for new
trial hearing was held on May 16, 2016, which was denied and
that he desired to "appeal devolutively from the final
judgment rendered in this action." The only description
of the final judgment in the motion for appeal refers to the
March 18, 2016 judgment, not the May 20, 2016 judgment
denying the motion for new trial. The actual order signed by
the trial court does not specify which judgment is being
appealed. Therefore, given the motion and order before us in
the record, we consider this appeal to be from the March 18,
2016 judgment on the merits, the only judgment referenced by
Mr. Calloway in his motion for appeal.
Calloway claims that the trial court erred in finding that he
failed to state a cause of action for unjust enrichment and
in finding that his claim had prescribed.
of No ...