FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 17-0688,
DIVISION "A" Honorable Robert A. Buckley, Judge
Judge Rosemary Ledet
Raul-Alejandro Ramos PRO SE PLAINTIFF/APPELLANT
A. Tabary, III Elizabeth R. Borne Justin W. Stephens TABARY
& BORNE, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Tiffany G. Chase.
a tort suit. The plaintiff, Raul-Alejandro Ramos, a former
tenant of the defendants, Andrew Le and La Rouge Properties,
alleges that the defendants unlawfully entered the premises
he was leasing and removed his property without his consent.
From the trial court's judgment granting the
defendants' exception of prescription, Mr. Ramos appeals.
AND PROCEDURAL BACKGROUND
one exception (discussed elsewhere in this opinion), the
essential facts are not disputed. In 2013, Mr. Ramos leased
commercial premises from the defendants to operate a
restaurant. During his tenancy, Mr. Ramos undertook
construction of the premises. Because of the construction,
Mr. Ramos moved various items to the rear of the premises. At
some point, Mr. Le advised Mr. Ramos that he could not store
items in the rear of the premises; Mr. Ramos, however,
continued to store items there. Consequently, on three
occasions between 2013 and 2015, Mr. Le or his agent entered
the leased premises and removed items that were being stored
in the rear.
25, 2017, Mr. Ramos, acting pro se, filed this suit
asserting those claims. The defendants filed exceptions of
non-conformity, vagueness, and ambiguity arguing, inter
alia, that Mr. Ramos had failed to allege the dates on
which the acts forming the basis of his claims occurred. The
trial court granted the exceptions and ordered Mr. Ramos to
amend his petition to set forth such dates with specificity.
Pursuant to the trial court's order, Mr. Ramos filed an
defendants filed an exception of prescription, arguing that,
on the face of the petition, Mr. Ramos' claims were
prescribed. Mr. Ramos filed an opposition to the exception,
arguing that, because the defendants had acted under
"color of landlord authority," he had been unaware
of his legal rights and, thus, prescription was interrupted.
At the hearing on the exception, the parties stipulated that
Mr. Ramos' colloquy with the trial court would be
received as testimony. Mr. Ramos also offered as an exhibit a
demand letter he sent to the defendants on September 30,
2016. Following the hearing, the trial court sustained the
exception of prescription and dismissed all of Mr. Ramos'
claims against the defendants. This appeal followed.
asserting that a claim is prescribed must do so through the
filing of a peremptory exception of
prescription. In Ames v. Ohle, 11-1540, pp. 5-6
(La.App. 4 Cir. 5/23/12), 97 So.3d 386, 390-91, this court
set forth the standard of review for such exceptions as
Ordinarily, a party asserting a peremptory exception of
prescription bears the burden of proof. Trust for Melba
Margaret Schwegmann v. Schwegmann, 09-968, p. 8 (La.App.
5 Cir. 9/14/10), 51 So.3d 737, 742. However, if prescription
is evident from the face of the pleadings, the plaintiff will
bear the burden of showing an action has not prescribed.
Id. If evidence is introduced at the hearing on the
peremptory exception of prescription, the district
court's findings of fact are reviewed under the manifest
error-clearly wrong standard of review. Rando v. Anco
Insulations, Inc., 08-1163, p. 20 (La. 5/22/09), 16
So.3d 1065, 1082. If there is as an absence of evidence, the
exception of the prescription must be decided upon the
properly pleaded material allegations of fact asserted in the
petition, and those alleged facts are accepted as true.
Trust for Melba Margaret Schwegmann, 51 So.3d at
742. Further, in reviewing a peremptory exception of
prescription, appellate courts strictly construe the statutes
against prescription and in favor of the claim. Id.
Of the possible constructions of a prescriptive or preemptive
statute, the one that maintains enforcement of the claim or
action, rather than the one that bars enforcement should be
adopted. Rando, 16 So.3d at 1083.
sustaining the defendants' exception of prescription, the
trial court found that Mr. Ramos' claims were prescribed
on the face of the petition and that there had been no
interruption of prescription. Although Mr. Ramos assigns
numerous errors, this appeal presents essentially two issues
for our review: (1) whether the trial court erred in
determining that Mr. Ramos' claims are prescribed on the
face of the petition; and (2) if so, whether the trial court
committed manifest error in determining that prescription was
not interrupted. We address each issue in turn.
determining whether an exception of prescription has merit,
the nature of the cause of action must first be identified.
Albe v. City of New Orleans, 14-0186, p. 8 (La.App.
4 Cir. 9/17/14), 150 So.3d 361, 367 (citing Ames,
11-1540, at p. 6, 97 So.3d at 391). "The character of an
action disclosed in ...