Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Calamia v. The Parish of Jefferson

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

CARL J. CALAMIA, JR. ET AL
v.
THE PARISH OF JEFFERSON, ET AL

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 732-538, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CARL J. CALAMIA, JR., CATHY CALAMIA GIANCOATIERI AND KAREN CALAMIA, INDIVIDUALLY AND AS THE CHILDREN OF CARL J. CALAMIA, SR. AND THERESA CALAMIA Erin Bruce Saucier Caleb H. Didriksen, III

          COUNSEL FOR DEFENDANT/APPELLEE, THE PARISH OF JEFFERSON Michael S. Futrell Matthew D. Moghis

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         Plaintiffs/appellants, Carl J. Calamia, Jr., Cathy Calamia Giancoatieri and Karen Calamia, individually and as children of Carl J. Calamia, Sr. (collectively referred to as "plaintiffs"), appeal the trial court's January 29, 2019 judgment granting an exception of prescription filed by defendant, Parish of Jefferson. On appeal, plaintiffs argue their lawsuit is not prescribed because a similar lawsuit pending against joint tortfeasors in Orleans Parish tolled the prescriptive period for their claims against the Parish of Jefferson. As discussed more fully below, however, the relevant pleadings from the Orleans Parish lawsuit were not admitted into evidence and the trial court relied on these documents in rendering its decision to grant the exception of prescription in favor of the Parish of Jefferson. Accordingly, we must vacate the trial court's judgment and remand for further proceedings.

         FACTS AND PROCEDURAL BACKGROUND

         This matter arises from the death of Carl Calamia, Sr. on February 21, 2007, following a diagnosis of malignant mesothelioma. On October 31, 2013, Mr. Calamia's children filed suit against the Parish of Jefferson and several other defendants in the 24th Judicial District Court for the Parish of Jefferson raising survivorship and wrongful death claims. In their petition, plaintiffs alleged that Mr. Calamia contracted mesothelioma when he worked as an underground utilities contractor installing, repairing and replacing asbestos-cement water pipes throughout Jefferson Parish.

         On October 26, 2018, the Parish of Jefferson filed an exception of prescription arguing that plaintiffs' survivorship and wrongful death claims, filed more than six years after Mr. Calamia's death, are untimely.[1] In its exception, the Parish of Jefferson explained plaintiffs would argue that the filing of an earlier lawsuit against the Parish of Jefferson, and numerous other alleged joint tortfeasors, in Orleans Parish Civil District Court on November 21, 2006 ("Orleans Parish lawsuit"), served to toll the prescriptive period for their claims pending in the current lawsuit pursuant to La. C.C. art. 2324(C).[2] The Parish of Jefferson argued that because plaintiffs filed the Orleans Parish lawsuit in an improper venue according to La. R.S. 13:5107(B), and also failed to serve its registered agent for service of process within the prescriptive period, La. C.C. art. 3462 required a finding that the Orleans Parish lawsuit did not serve to interrupt the prescriptive period with respect to plaintiffs' claims against it. The Parish of Jefferson attached to its supporting memorandum, a copy of the original and amended petition for damages filed in the Orleans Parish lawsuit, as well as a copy of exceptions of improper venue and improper service that it filed in response and a January 17, 2007 order dismissing plaintiffs' claims against it in the Orleans Parish lawsuit without prejudice.[3]

         As expected, in response to Parish of Jefferson's exception of prescription, plaintiffs argued that pursuant to La. C.C. art. 2324(C), the Orleans Parish lawsuit pending against the Parish of Jefferson's alleged joint tortfeasors interrupted the prescriptive period with respect to their claims in the present matter.

         Following a hearing on January 16, 2019, the trial court granted the exception of prescription and found that prescription was not interrupted because the Orleans Parish lawsuit "was filed initially in an improper venue, [and] that there was no proper service within the prescriptive period." On January 29, 2019, the trial court signed a written judgment granting the exception of prescription and dismissing all of plaintiffs' claims against the Parish of Jefferson with prejudice.

         On February 25, 2019, plaintiffs filed a timely motion for devolutive appeal, which the trial court granted on March 7, 2019.

         DISCUSSION

         On appeal, plaintiffs ask this Court to overturn the trial court's judgment granting the exception of prescription because the Orleans Parish lawsuit pending against the Parish of Jefferson's joint tortfeasors tolled the prescriptive period pursuant to La. C.C. art 2324(C). The Parish of Jefferson argues, on the other hand, that pursuant to La. C.C. art. 3562, the Orleans Parish lawsuit, filed in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.