Wadsworth v. Grand Casinos of Louisiana, Inc., (2002)

• Court: Tunica-Biloxi Tribal Court
• Writing for the Court: DELAHOUSSAYE, CHIEF JUDGE
• Decision Date: 12 September 2002
• Docket Number: 2000-132
• Citation: Wadsworth v. Grand Casinos of Louisiana, Inc. (Tunica-Biloxi Tribal Ct. 2002)
• Parties: MARY L. WADSWORTH, PLAINTIFF AND APPELLANT v. GRAND CASINOS OF LOUISIANA, INC.-TUNICA-BILOXI AND THE TUNICA-BILOXI INDIANS OF LOUISIANA DEFENDANTS AND APPELLEES

MARY L. WADSWORTH, PLAINTIFF AND APPELLANT v. GRAND CASINOS OF LOUISIANA, INC.-TUNICA-BILOXI AND THE TUNICA-BILOXI INDIANS OF LOUISIANA DEFENDANTS AND APPELLEES

No. 2000-132

Tunica-Biloxi Tribal Court Tunica-Biloxi Nation

September 12, 2002

DECISION

DELAHOUSSAYE, CHIEF JUDGE

In this tort action, Plaintiff-Appellant appeals from an adverse final judgment of the Tribal Trial court sustaining an exception of prescription filed by defendant, and dismissing plaintiff's lawsuit with prejudice at plaintiffs costs.

Plaintiff-Appellant is MARY WADSWORTH (WADSWORTH); DefendantAppellees are (1) GRAND CASINOS OF LOUISIANA, INC.-TUNICA-BILOXI; and (2) TUNICA-BILOXI INDIANS OF LOUISIANA (TRIBE).

Plaintiff's petition alleges that on October 24, 1999, plaintiff presented at Grand Casino Avoyelles for dinner and entertainment. While plaintiff was using the restroom, a casino employee pushed open a stall door, striking plaintiff causing her to fall, sustaining injury. The petition further alleges negligence and/or fault on defendants, in the recited particulars, and further alleges her injuries and damages. Plaintiffs petition was filed for record on November 20 2000.

Subsequently on January 5, 2001, defendants filed a "Motion to Dismiss on ground of Prescription and Failure to state a claim." The motion to dismiss states that the petition is prescribed on its face.

On January 30, 2001, after a hearing, the Tribal Trial Court granted a Judgment of Dismissal of plaintiff's petition, on the grounds of prescription, dismissing plaintiff's claims with prejudice at plaintiff's costs. The issue as to the failure to state a cause of action was rendered moot.

In addition to the above, the following pertinent facts are not disputed.

The alleged injury occurred in the restroom of Grand Casino Avoyelles on October 24, 1999, and the incident was immediately reported by Wadsworth. On December 17, 1999, Wadsworth "updated" Ms. Gerri Goudeaux, Risk Manager for the Tribe, regarding her injuries. By letter of March 23, 2000, counsel for Wadsworth informed Ms. Goudeaux of his representation, who confirmed receipt and responded by letter dated March 27, 2000. Thereafter, on several occasions, plaintiff's counsel forwarded medical bills and records to Ms. Goudeaux and the matter was discussed between them by telephone.

A lawsuit was filed on Ms. Wadsworth's behalf on November 20, 2000. A hearing on the exception of prescription was held on January 23, 2001. The Tribal Trial Judge granted the exception and dismissed the claim of Ms. Wadsworth. At the January 23, 2001 hearing, the following stipulation was made:

"1. Gerri Goudeaux was called to testify.

2. Ms. Goudeaux confirmed receiving exhibits 3, 5-11, and sending exhibit 4.

3. Ms. Goudeaux confirmed that neither she nor any other representative of the defendant took any action to prevent the plaintiff from fling suit.

4. Clerk of Court for the Tunica-Biloxi Indians Tribal court provided plaintiff's counsel a copy of "Tunica-Biloxi Indians of Louisiana, Code of Civil Procedure. Accompanying the Code of Civil Procedure although not attached, was "Tunica-Biloxi Indians of Louisiana Resolution No. 13-95A" amending the relevant prescriptive period.

5. Submission of plaintiffs exhibits 1-13 for consideration." (See appellant's brief, page 2)

The parties admit that, assuming the Tunica-Biloxi Code of Civil Procedure sets forth a one-year prescriptive period for tort actions, then the petition of Mary L. Wadsworth has prescribed on its face.

STATUTE OF LIMITATIONS

Prior to July 6, 1995, the statute of limitations, contained in Article 4, Section 2 of the Tunica-Biloxi Code of Civil Procedure read as follows:

"Article 4. Commencement of Actions. Section 1. General limitations.

An action can only be commenced within the time stated in this Code unless a different time is specified by law. The time within which the action may be commenced starts at the time the act complained of was discovered, unless by law otherwise provided.

Section 2. Statute of Limitations.

All civil actions shall be commenced within six (6) years from the time the cause of action accrued in the case of contracts and within three (3) years in the case of torts, unless a different time is prescribed by law. An action shall be deemed to have been commenced for the purpose of this article when the defendant or defendants have been served with summons or when a written petition has been filed. The statute of limitations does not run against a minor, incompetent, or person serving in the Armed Forces of the United States, nor does the period run as to persons absent from the jurisdiction for the purpose of avoiding process...." Article 4, Sections 1 & 2, Tunica-Biloxi Code of Civil Procedure.

Subsequently, on July 6, 1995, the Tunica-Biloxi Tribal Council amended Article 4, Section 2, of the Code of Civil Procedure, as follows:

"Article 4, Section 2. Statute of Limitations.

All civil actions shall be commenced within five years from the time of the accrual of the cause of action in the case of contracts, and within one year in the case of torts, unless a different time is prescribed by law. An action shall be deemed to have been commenced for the purpose of this Article when the defendant or defendants have been served with summons, or when a written petition has been filed. The statute of limitations does not run against a minor, an incompetent, or a person serving in the Armed Forces of the United States, nor does the period run as to persons absent from the jurisdiction for the purpose of avoiding process.

Section 3

Section 4. These amendments shall take effect on July 6, 1995." Article 4, Sections 2, 4, Tunica-Biloxi Indian Code of Civil Procedure, as amended, July 6, 1995.

Thus, it is apparent that at all times pertinent to this lawsuit, the Statute of Limitations, in the case of torts, was one (1) year. It is further apparent that upon his request, Counsel for plaintiff was provided with a copy of the Tunica-Biloxi Code of Civil Procedure, which contained the three-year prescription period, and also was provided, at the same time, according to Counsel's brief and candid statement during oral argument, with a cover letter correctly setting forth the amendment of Article 4, Section 2, reducing the prescriptive period for tort actions to one (1) year.

CONTRA NON VALENTEM

The plaintiff's counsel argued here, and in the Trial Court that prescription in this case be suspended, under the doctrine of CONTRA NON VALENTEM AGERE NULLA CURRIT PRAESCRIPTO, which means "prescription does not run against a party unable to act." Wimberly v. Gotch, 635 So.2d 206, 211 (La. 1994).

When a petition reveals on its face that prescription has run, the plaintiff has the burden of showing why the claim has not prescribed. Bouterie v. Crane, 616 So.2d 657 (La. 1993); Wimberly v. Gotch, supra.

The plaintiff has three theories upon which he may rely to establish prescription has not run, to-wit, suspension, interruption or renunciation. Id. Ms. Wadsworth relies on the suspension theory.

The Courts (Louisiana) created the doctrine of CONTRA NON VALENTEM as an exception to the general rules of prescription. Hillman v. Akins, 631 So.2d 1 (La. 1944); Bouterie v. Crane, supra; Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La. 1992); Plaquemines Parish Com'n Council v. Delta Development Co. Inc., 502 So.2d 1034, 1054 (La. 1987).

The doctrine is contrary to the express provisions of the Civil Code. See LSA-C.C. Art. 3467; Bouterie v. Crane, supra. The principles of equity and justice which form the mainstay of the doctrine, however demand that under certain circumstances, prescription be suspended because plaintiff was effectually prevented from enforcing his rights for reasons external to his own will. Bouterie v. Crane, supra.

Generally the...