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Benson v. State

Court of Appeals of Louisiana, First Circuit

September 15, 2017


         On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C646492 The Honorable Timothy E. Kelley, Judge Presiding

          Douglas L. Bryan Marksville, Louisiana Attorney for Plaintiff/ Appellant, Nolan J. Benson d/b/a Borrel's EZ Shop

          Jeff Landry, Attorney General Margaret A. Collier, Assistant Attorney General Baton Rouge, Louisiana Attorneys for Defendant/ Appellee, State of Louisiana, Department of Revenue, through its Office of Alcohol and Tobacco Control


          CRAIN, J.

         The plaintiff, Nolan Benson, doing business as Borrel's EZ Shop, appeals a judgment sustaining an exception of prescription and dismissing his claims against the State of Louisiana, Department of Revenue, through the Office of Alcohol and Tobacco Control. We affirm.


         Benson seeks damages against the state based on the state's denial of his applications for a Class B liquor license for his business. The denial was premised upon Benson's business being less than 300 feet from a church, school, playground, synagogue, or library, and therefore prohibited from licensure by Louisiana Revised Statute 26:281. Benson contends the state misapplied the relevant statutory provision and argues licenses were granted to other businesses located closer to churches. He claims the state was discriminating against him because he is a minority business owner. Benson alleged he was finally granted a license in December 2014, after the relevant statutory provision was correctly applied.

         Benson filed this suit for damages on May 19, 2015, in the 12th Judicial District Court, located in Avoyelles Parish, where Benson resides. The state filed exceptions of improper venue and prescription, which the trial court denied. The Third Circuit Court of Appeal granted the state's application for writ of supervisory review and granted the exception of improper venue upon determining that Benson's suit was required to be brought in East Baton Rouge Parish. Because the third circuit determined that venue was not proper in Avoyelles Parish, it also reversed the trial court's ruling denying the exception of prescription, and referred the exception to the court of proper venue.

         After this suit was transferred to the 19th Judicial District Court in East Baton Rouge Parish, the state again urged its exception of prescription. The state argued that Benson's claims were subject to a liberative prescription of one year, which began, at the latest, on July 22, 2010, the date Benson alleged his application for a liquor license was denied The state argued this suit, filed in 2015, was untimely and should be dismissed, Benson opposed the exception, claiming he alleged a continuing tort that persisted through December 2014, the date he finally obtained a liquor license. The trial court sustained the exception and dismissed Benson's suit. Benson appeals.


         Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. Civ. Code art. 3447. Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Mallett v. McNeal, 05-2289 (La. 10/17/06), 939 So.2d 1254, 1258. Generally, the burden of proving a cause of action has prescribed rests with the party pleading prescription; however, when the face of the plaintiffs petition shows the prescriptive period has run, and the plaintiff is contending there is a suspension or interruption of prescription, the burden is on the plaintiff to prove suspension or interruption. Thompson v. Town of Jonesboro, 16-1224 (La.App. 1 Cir. 6/2/17), ___So. 3d___, ___(2017WL2399348).

         Evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition. See La. Code Civ. Pro. art. 931; Kelley v. General Insurance Company 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. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 11-2835 (La. 11/2/12), 125 So.3d 1057, 1072. When, as here, evidence is received at the trial of the exception, the appellate court reviews the trial court's factual findings under the manifest error-clearly wrong standard. Thompson, ___So. 3d at____.

         Benson does not dispute that his claims are subject to the one-year prescriptive period applicable to delictual actions, which commences to run from the date the injury or damage is sustained. See La. Civ. Code art. 3492. Rather, he argues his claims constitute a continuing tort, and therefore have not prescribed. In support of his position, he introduced into evidence his own affidavit, wherein he pertinently attested that he "consistently and repeatedly ...

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