29,006 La.App. 2 Cir. 1/22/97, G.B.F. v. Keys

• Decision Date: 22 January 1997
• Parties: 29,006 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 632

687 So.2d 632

29,006 La.App. 2 Cir. 1/22/97

G.B.F., Plaintiff-Appellant, v. Michael Wayne KEYS, Defendants-Appellants.

No. 29,006-CA.

Court of Appeal of Louisiana Second Circuit.

Jan. 22, 1997.

Writ Denied March 21, 1997.

A. Richard Snell, Steven G. Mckenzie, Bossier City, for Plaintiff-Appellant.

Lunn, Irion, Johnson, Salley & Carlisle by James Gardner, Shreveport, for Defendants-Appellees.

Before MARVIN, C.J., and NORRIS and STEWART, JJ.

MARVIN, Chief Judge.

In this action for damages founded on allegations that as a child, plaintiff was sexually abused by his scoutmaster, Keys, G.B.F., the plaintiff who instituted the action against the scoutmaster and his alleged superiors in 1993, almost three years after he reached the age of majority, appeals a judgment upholding the peremptory exception of prescription and dismissing GBF's demands against the Boy Scouts of America, a co-defendant. La. C.C. art. 3492.

GBF complains that the trial court should have retroactively applied amended statutes lengthening the applicable prescriptive period, or in the alternative, applied the doctrine of contra non valentem to suspend the accrual of liberative prescription.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The named defendants are Keys, the Boy Scouts of America, Inc. and Norwela Council of Boy Scouts of America. G.B.F. was a member of Boy Scout Troop No. 216 located in Bossier City, Louisiana, for approximately four years at ages 11 through 14. Contending that Keys used his position and authority as a scoutmaster to accomplish the sexual abuse, G.B.F. alleged that the other defendants (collectively, "B.S.A.") are liable for failing to provide and apply proper procedures to screen applicants for scoutmasters, failing to properly supervise Keys, failing to investigate Keys and failing to remove Keys as scoutmaster.

In February 1987, Keys was arrested for sexual misconduct with other young members of Troop No. 216. After pleading guilty, Keys was sentenced to five years in prison. Although G.B.F.'s petition does not specifically allege when Keys committed the sexual abuse, the events occurred before Keys' arrest in February 1987. Reaching his 18th birthday on September 11, 1990, G.B.F. did not institute his action until June 15, 1993.

B.S.A. filed its peremptory exception of prescription on August 31, 1993. Relying on the one-year prescriptive period for delictual actions under La. C.C. art. 3492, B.S.A. contended that G.B.F.'s action prescribed one year after Keys' arrest in February 1987. B.S.A. focused on G.B.F.'s knowledge of the abuse as a minor, rather than on his parents' knowledge of the abuse. The trial court overruled this first exception of prescription following Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, which held that, while the victim is a minor, the doctrine of contra non valentem suspends the running of prescription until the minor's parents have sufficient notice of the sexual molestation.

After taking depositions of G.B.F. and his mother, and based on facts developed through this discovery, B.S.A. refiled its peremptory exception of prescription on September 22, 1995. The trial court sustained this exception on February 14, 1996, holding that G.B.F.'s cause of action prescribed because he failed to bring it within one year from the date that he became an adult, September 11, 1990. The trial court held that the doctrine of contra non valentem does not apply to this action to suspend the running of prescription once G.B.F. attained the age of majority. We agree.

DISCUSSION

Res Judicata

G.B.F. contends that B.S.A. should not be allowed to re-litigate the issue of prescription, claiming that the second exception of prescription is barred as res judicata because the trial court overruled the first exception of prescription filed in August, 1993. G.B.F. argues his position in brief. G.B.F. did not file a formal pleading raising the exception of res judicata at either the trial or appellate level. An exception of res judicata may not be supplied by the court. La. C.C.P. art. 927. Ordinarily, the exception cannot be injected as an issue in the case solely by brief or oral argument. See and compare Bergeron v. Houma Hospital Corporation, 514 So.2d 1192 (La.App. 1st Cir.1987), writ denied and Hayes v. Hayes, 607 So.2d 3 (La.App. 2d Cir.1992). Nevertheless, under the circumstances, we have considered this argument and find it without merit.

In order to plead res judicata, it is necessary that there be a final judgment. La. R.S. 13:4231; Fisher v. Rollins, 231 La. 252, 91 So.2d 28 (1956); Henry Ins. Agency, Inc. v. Desadier, 94-39 (La.App. 3rd Cir. 10/5/94), 643 So.2d 374. A judgment overruling an exception of prescription is merely interlocutory and not appealable, absent irreparable harm. Fleniken v. Allbritton, 566 So.2d 1106 (La.App. 2d Cir.1990). It is not a "final judgment." Compare Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir.1979).

Moreover, La. C.C.P. art. 928 states that the peremptory exception may be pleaded at any stage of the proceedings. See Teachers' Retirement System of Louisiana v. Louisiana State Employees' Retirement System, 456 So.2d 594 (La.1984), holding that the peremptory exception of no right of action may again be raised or pleaded after once being denied.

Applicable Prescriptive Period

Before 1992, La. C.C. art. 3492 provided that the one-year liberative prescription for a delictual action applied to this action. Article 3492 now provides as follows:

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

La. C.C. art. 3496.1 was amended by Act 322 of 1992 to provide a three-year prescriptive period for an action against a person for "abuse of a minor."

An action against a person for abuse of a minor is subject to a liberative prescriptive period of three years. This prescription commences to run from the day the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches the age of majority. This prescriptive period shall be subject to any exception of peremption provided by law.

Italics supplied.

In 1993, La. C.C. art. 3498.1 was enacted, effective June 25, 1993, to provide for a ten-year prescriptive period for an action against a person for "sexual abuse of a minor." La. C.C. art. 3498.1, redesignated as La. R.S. 9:2800.9 by the Louisiana State Law Institute, is also pertinent:

A. An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children's Code Article 603(1). This prescriptive period shall be subject to any exception of peremption provided by law.

G.B.F. complains that the trial court failed to retroactively apply the amended statutes, La. C.C. art. 3496.1 and La. R.S. 9:2800.9. He argues that the express language of La. C.C. art. 3496.1, providing that prescription is suspended "for all purposes" until the minor attains the age of majority, indicates a clear legislative intent to suspend prescription for any and all acts during the minority of a child, even when those acts occurred prior to the legislative act.

Emphasizing that La. R.S. 9:2800.9 tracks the language of La. C.C. art. 3496.1 by providing that "this prescription ... shall be suspended for all purposes until the minor reaches the age of majority," G.B.F. argues that this statute should be applied retroactively for the same reasons as Art. 3496.1. According to G.B.F., if the legislature had not intended for retroactive application, then there would have been no need to include the phrase "for all purposes" in both statutes.

We cannot apply La. C.C. art. 3496.1 or La. R.S. 9:2800.9 retroactively in this case because to do so would revive an already prescribed cause of action, infringing upon constitutionally vested rights. A statute enacted after the expiration of the plaintiff's cause of action by prescription cannot revive the already prescribed action. See Hall v. Hall, 516 So.2d 119 (La.1987); Harrison v. Gore, 27,254 (La.App.2d Cir. 8/23/95), 660 So.2d 563, writ denied; Bishop v. Simonton, 615 So.2d 8 (La.App. 2d Cir.1993), writ denied. In Bishop, we stated:

Statutes of prescription like these, being remedial in nature, generally apply to all actions instituted after the effective date even though the cause of action accrued before enactment of the legislation. Lott v. Haley, 370 So.2d 521 (La.1979); Rusher v. Winningham Nissan Volvo, Inc., 550 So.2d 784 (La.App. 2d Cir.1989). Exceptions to this general rule of retroactivity for prescriptive statutes, however, include instances where such application would strip a party of a vested right or would revive an already prescribed cause of action. Brown v. Reese, 532 So.2d 187 (La.App. 2d Cir.1988); LeBlanc v. City of Lafayette, 558 So.2d 259 (La.App. 3d Cir.1990). More directly stated, a legislative act cannot revive a cause of action already barred by liberative prescription prior to the effective date of that act. Hall v. Hall, 516 So.2d 119 (La.1987); Small v. Avoyelles Parish Police Jury, 589 So.2d 1132 (La.App. 3d Cir.1991), writ denied, 593 So.2d 374 (La.1992); Lyman v. Town of Sunset, 567 So.2d 1171 (La.App. 3d Cir.1990), writ denied, 571 So.2d 648 (La.1990); LeBlanc, supra.

615 So.2d at 11. Emphasis supplied.

G.B.F. became...