APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 71, 165,
DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, IRMA HONOR Joseph F.
Lahatte, III, Michael S. Brandner, Jr., Scot P. Koloski
COUNSEL FOR DEFENDANT/APPELLEE, HUFF MANAGEMENT CO., INC. AND
ASSOCIATED INDUSTRIES INSURANCE COMPANY Sidney W. Degan, III,
Foster P. Nash, III, Travis L. Bourgeois, Richard W.
composed of Judges Fredericka Homberg Wicker, Robert A.
Chaisson, and Hans J. Liljeberg
A. CHAISSON, JUDGE
case arising from a trip-and-fall accident, Irma Honor
appeals a May 8, 2018 judgment of the trial court sustaining
an exception of prescription filed by Huff Management Co.,
Inc., and dismissing Ms. Honor's case with prejudice. For
the following reasons, we affirm the judgment of the trial
& PROCEDURAL HISTORY
September 5, 2017, Ms. Honor filed a petition for damages
against the initial defendant, Livingston Management, Inc.
("Livingston"), alleging that she was injured on
September 7, 2016, when she tripped and fell at the Normandy
Village Apartments in LaPlace, Louisiana. One month later,
Livingston filed an answer to Ms. Honor's original
petition in which it asserted that, at the time of the
alleged fall, it was neither the owner nor manager of
Normandy Village Apartments, and that it had not managed the
apartments since May 1, 2012. On December 14, 2018, Ms. Honor
filed a First Supplemental and Amending Petition for Damages
naming as a defendant for the first time the current owner
and manager of the property, Huff Management Co., Inc.
filed a peremptory exception of prescription. After the
hearing of the exception, the matter was submitted on the
arguments and memoranda alone, with neither party introducing
any evidence. Thereafter, the trial court rendered judgment
sustaining Huff's exception of prescription and dismissed
Ms. Honor's case with prejudice. After the denial of her
motion for new trial, Ms. Honor filed this appeal.
appeal, Ms. Honor acknowledges that her Supplemental and
Amending Petition naming Huff as a defendant was filed
outside the one year liberative prescriptive period allowed
for delictual actions under La. C.C. art. 3492. However, she
maintains that the trial court erred in sustaining Huff's
exception of prescription because the running of the
prescriptive period was suspended pursuant to contra non
valentum. In particular, Ms. Honor argues that she
was unable to ascertain the identity of the property owner
and proper party defendant despite reasonable diligence, and
therefore, under the fourth category of contra non
valentum, also known as the "discovery rule,"
prescription was suspended and her Supplemental and Amending
Petition was timely filed. In opposition, Huff argues that
Ms. Honor could have ascertained the owner of Normandy
Village Apartments through a simple public records search and
that her failure to identify Huff as the proper defendant may
only be attributed to her own neglect, thereby depriving her
of the benefit of contra non valentum. See
Renfroe v. State ex rel. Dep't of Transp. &
Dev., 01-1646 (La. 2/26/02), 809 So.2d 947, 953.
pleading prescription has the burden of proving facts to
support the exception unless the petition is prescribed on
its face; when the face of the petition reveals that
plaintiff's claim has prescribed, the burden shifts to
the plaintiff to demonstrate that the prescription was
suspended or interrupted. Monson v. Travelers Prop. &
Cas. Ins. Co., 09-267 (La.App. 5 Cir. 12/8/09), 30 So.3d
66, 69, writ denied, 10-0043 (La. 3/12/10), 28 So.3d
trial of the peremptory exception, evidence may be introduced
to support or controvert any objection pleaded. La. C.C.P.
art. 931. In the absence of evidence, an exception of
prescription must be decided upon facts alleged in the
petition, with all allegations accepted as true.
Monson, 30 So.3d at 71. Documents attached to
memoranda do not constitute evidence and cannot be considered
on appeal. Caro v. Bradford White Corp., 96-120
(La.App. 5 Cir. 7/30/96), 678 So.2d 615, 618.
no evidence was introduced at the trial of the exception, we
must examine the Supplemental and Amending Petition, and,
accepting the facts alleged therein as true, determine
whether Ms. Honor's claim has prescribed. According to
the petition, the trip-and-fall accident occurred on
September 7, 2016. There are no allegations of facts in the
petition indicating what Ms. Honor knew or did not know about
the identity of the property owner, or any other facts
concerning any efforts, reasonable or otherwise, that ...