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Bellsouth Telecommunications, LLC. v. A&A Cable Contractors, Inc.

Court of Appeals of Louisiana, First Circuit

May 11, 2017

BELLSOUTH TELECOMMUNICATIONS, LLC. D/B/A AT&T LOUISIANA
v.
A&A CABLE CONTRACTORS, INC. AND CSRS, INC.

         On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 629, 055 Honorable William A. Morvant, Judge Presiding

          Michael B. Alker Mandeville, Louisiana Counsel for Plaintiff/Appellant BellSouth Telecommunications, L.L.C. d/b/a AT&T Louisiana

          James J. Danna Baton Rouge, Louisiana Counsel for Defendant/ Appellee A&A Cable Contractors, Inc.

          Steven B. Loeb Jacob E. Roussel Baton Rouge, Louisiana Counsel for Defendant/ Appellee CSRS, Inc.

          BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.

          McClendon, J.

         The plaintiff appeals from a judgment that granted a defendant's peremptory exception raising the objection of prescription. For the following reasons, we affirm the judgment of the trial court.

         FACTUAL AND PROCEDURAL HISTORY

         On March 14, 2014, BellSouth Telecommunications, L.L.C. d/b/a AT&T Louisiana (BellSouth) filed a Petition for Damages against A&A Cable Contractors, Inc. (A&A), alleging that on March 18, 2013, BellSouth discovered damages to its underground telephone cables caused by the failure of A&A to install the cables at the depth as specified in the contract between BellSouth and A&A. BellSouth further alleged that it incurred costs in repairing the damage. Thereafter, on October 20, 2015, BellSouth filed a Second Supplemental and Amending Petition for Damages adding CSRS, Inc. (CSRS) and William Watson, a CSRS employee, as additional defendants.[1] Therein, BellSouth alleged that during the installation project, A&A encountered a sub-surface concrete slab and, upon the advice of Watson, installed the cables on top of the slab, which was above the depth specified by BellSouth. BellSouth claimed that the defendants were jointly and/or solidarity liable for the damages asserted.

         In response, CSRS filed a peremptory exception raising the objection of prescription on November 30, 2015. CSRS alleged that the claims brought against it were purely delictual claims and were filed more than one year after prescription commenced. Specifically, CSRS maintained that BellSouth unambiguously admitted in its petition that the damage occurred on March 18, 2013, and that BellSouth did not file suit against CSRS until over thirty-one months later in October 2015. CSRS additionally argued that because the action against CSRS was prescribed on the face of the petition, BellSouth had the burden to prove that the action was not prescribed. CSRS asserted that prescription was not interrupted on the date BellSouth initiated the litigation against A&A since CSRS and A&A are neither solidarity liable nor are they joint tortfeasors.

         Following a hearing on March 28, 2016, the trial court agreed with CSRS and sustained the exception. The trial court signed a judgment on April 5, 2016, dismissing BellSouth's claims against CSRS with prejudice. Thereafter, BellSouth timely appealed. The issue on appeal is whether BellSouth's timely filing of suit against A&A interrupted the running of prescription on its claims against CSRS.

         LAW AND DISCUSSION

         Louisiana Civil Code Article 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. See also Kelley v. General Ins. Co. of America, 14-0180 (La.App. 1 Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 15-0157, 15-0165 (La. 4/10/15), 163 So.3d 814, 816. The objection of prescription may be raised by a peremptory exception. LSA-C.C.P. art. 927A(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. When prescription is raised by peremptory exception, without evidence being introduced at the hearing on the exception, the exception must be decided on the facts alleged in the petition, which are accepted as true. Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. If no evidence is introduced, the appellate court's role is to determine whether the trial court's ruling was legally correct. Onstott v. Certified Capital Corp., 05-2548 (La.App. 1 Cir. 11/3/06), 950 So.2d 744, 746.

         Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 04-0620 (La. 1/20/05), 891 So.2d 1268, 1275. Prescription may be renounced, interrupted, or suspended. See LSA-C.C. arts. 3449 through 3472; McKenzie v. Imperial Fire and Cas. Ins. Co., ...


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