Mark John Finn v. Rodney "Jack" Strain ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0998
MARK JOHN FINN
VERSUS
RODNEY " JACK" STRAIN, JR.
t
Judgment Rendered: SEP 13 2023 -
Appealed from the 22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 2020- 12111
The Honorable Cornelius E. Regan
Ad Hoc Judge Presiding
Antonio McMon Counsel for Plaintiff/Appellant
Covington, Louisiana Mark John Finn
Gwyneth O' Neill Counsel for Defendant/ Appellee
William P. Gibbens Rodney " Jack" Strain, Jr.
New Orleans, Louisiana
J. Collin Sims Counsel for Defendant/ Appellee
Elizabeth Authement State of Louisiana
Covington, Louisiana
BEFORE: McCLENDON, WELCH, AND LANIER, JJ.
LANIER, J.
In this appeal, plaintiff/appellant, Mark John Finn, seeks review of the
Twenty- second Judicial District Court' s judgment sustaining the peremptory
exception raising the objection of prescription, and the motion to lift stay and to
remove improperly filed lis pendens, both filed by the defendant/ appellee, Rodney
Jack" Strain, Jr. For the reasons that follow, we affirm in part, reverse in part, and
remand pursuant to La. C. C. P. art. 934.
FACTS AND PROCEDURAL HISTORY
On May 15, 2020, Mr. Finn filed a petition for compensatory and exemplary
damages against Mr. Strain, in which Mr. Finn alleged that beginning in 1975,
when Mr. Finn was six years old and Mr. Strain was about thirteen years old, Mr.
Strain repeatedly abused Mr. Finn sexually by committing numerous sexual acts
upon Mr. Finn and forcing Mr. Finn to commit sexual acts upon Mr. Strain,
himself, animals, and other children. Mr. Finn alleged that Mr. Strain used force
and intimidation for him to commit these acts of abuse, and that this force and
intimidation continued into their adult lives, when Mr. Strain used his authority as
Police Chief of Abita Springs and later as Sheriff of St. Tammany Parish to enforce
Mr. Finn' s silence. Mr. Finn further alleged that due to the abuse and manipulation
inflicted upon him by Mr. Strain, he has suffered post traumatic stress disorder,
extreme emotional distress, depression, bodily injury, loss of income, humiliation,
and extreme anger, all of which have led to Mr. Finn' s drug use, criminal behavior,
and damaged reputation.
On July 29, 2020, the State of Louisiana, through the St. Tammany Parish
District Attorney' s Office, filed a motion to intervene for purposes of staying all
discovery in the lawsuit. In the motion, the State averred that on June 11, 2019, a
bill of indictment was filed against Mr. Strain, charging him with felony charges
2
such as first degree rape,' aggravated crime against nature,' indecent behavior with
juveniles, and sexual battery.4 The matter was at the time pending in the 22°d JDC
under docket number 0703- F- 2019, and the State requested that the instant
litigation and related discovery be stayed since it was directly related to the
pending criminal proceeding.'
Mr. Strain filed on October 4, 2021 a motion to remove an improperly filed
las pendens. The lis pendens to which Mr. Strain referred was filed by Mr. Finn on
May 20, 2020 in the Parish of St. Tammany against several properties that Mr.
Strain owned. Mr. Strain argued that the lis pendens was improper because the
properties it encumbered had no relation to the instant lawsuit filed by Mr. Finn.
Following a trial by jury, Mr. Strain was found guilty on November 8, 2021
of four counts of first degree rape, two counts of aggravated crime against nature,
one count of indecent behavior with juveniles, and one count of sexual battery.
Mr. Finn was the victim on one of the counts of first degree rape. On November
19, 2021, Mr. Finn filed exceptions raising the objections of unauthorized use of
summary proceeding and nonjoinder of an indispensable party. Mr. Finn argued
that Mr. Strain could not seek to dismiss the lis pendens through the summary
proceeding he requested in his motion, and that a writ of mandamus was the proper
proceeding. Further, the writ of mandamus would make the St. Tammany Parish
Clerk of Court an indispensable party, and the Clerk was never brought into the
lawsuit by any pleading filed by Mr. Finn or Mr. Strain. Also on November 19,
In the motion, the State referred to first degree rape as " aggravated rape." Effective August 1,
2015, the offense of aggravated rape has been restyled as first degree rape, with either referring
to the same offense. La. R.S. 14: 42( E), 2015 La. Acts 256.
2 In the motion, the State referred to aggravated crime against nature as " aggravated incest." The
aggravated incest" statute was repealed, effective June 12, 2014, and its elements incorporated
into La. R. S. 14: 89. 1( A). 2014 Acts 602.
3 See La. R.S. 14: 81,
4 See La. R.S. 14: 43. 1.
s The stay was lifted by the trial court in a separate order on January 19, 2021.
3
2021, Mr. Finn filed a motion for partial summary judgment on the issue of Mr.
Strain' s liability.
On March 9, 2022, Mr. Strain filed a peremptory exception raising the
objection of prescription. He argued that the torts Mr. Finn alleged Mr. Strain
committed occurred from the seventies until the early eighties, and at that time, the
one- year prescriptive period of La. C. C. art. 3492 applied. He further argued that
2021 La. Acts 322, 6 which became effective June 14, 2021 and revived certain
claims involving sexual abuse of minors, did not apply to Mr. Finn' s claim because
it only revived claims that were barred by the liberative prescription of La. R.S.
9: 2800. 9, not La. C. C. 3492. Furthermore, Mr. Strain argued that Act 322 does not
apply to pending litigation, and alternatively, if it were found that Act 322 did
apply to Mr. Finn' s claim, the Act was unconstitutional.
In opposition to Mr. Strain' s exception, Mr. Finn relied on the language of
La. R. S. 9: 2800.9, as it was amended on June 14, 2021: " An action against a
person for sexual abuse of a minor ... does not prescribe." ( Emphasis added) Mr.
Finn argued pursuant to the plain meaning of the words in the statute, any action
against a person for sexual abuse of a minor, regardless of when the abuse occurred
or what prescriptive period applied at the time, does not prescribe. In the
alternative, Mr. Finn argued that the doctrine of contra non- valentum applied, as
Mr. Strain' s positions of authority and intimidation methods prevented Mr. Finn
from timely filing suit.
The motion to remove the lis pendens and the peremptory exception of
prescription filed by Mr. Strain, and the motion for partial summary judgment filed
6 2021 La. Acts 322 amended La. R.S. 9: 2800. 9 so that tort actions for sexual or physical abuse
of a minor did not prescribe. It also revived for a period of three years from its effective date any
such action that had previously prescribed under La. R.S. 9: 2800.9.
Louisiana Revised Statutes, 9: 2800. 9 was originally enacted in 1993. The prescriptive period
provided by the statute prior to its revision on June 14, 2021, was ten years from the date the
claimant reached the age of majority.
4
by Mr. Finn were heard on April 20, 2022. In a judgment signed on May 24, 2022,
the district court sustained the peremptory exception and the granted motion to
remove the lis pendens, dismissing Mr. Finn' s claims against Mr. Strain with
prejudice and ordering the St. Tammany Parish Clerk of Court to cancel the notice
of lis pendens filed by Mr. Finn against Mr. Strain' s immovable property. Based
on these rulings, the district court found the motion for partial summary judgment
to be moot. In its written reasons, the district court stated that since the abuse
occurred before La. R.S. 9:2800. 9 was enacted, the one- year prescriptive period of
La. C. C. 3492 applied. The district court also found that Act 322 did not apply to
pending litigation, since the act specifically permitted a party " to file an action."
The district court also found that the doctrine of contra non- valentem did not
apply, as Mr. Finn never made any attempt to seek legal assistance to file suit prior
to filing the instant petition. Lastly, the district court found that the lis pendens
was improperly filed, since actions involving sexual abuse of a minor do not
involve immovable property. Mr. Finn has appealed this judgment.
ASSIGNMENTS OF ERROR
Mr. Finn assigns as error:
1. The district court' s interpretation of La. R.S. 9: 2900. 9( A)(2), in
that the present revision of the statute did not revive Mr. Finn' s
claims against Mr. Strain.
2. The district court' s failure to apply contra non-valentem to the
instant case, when Mr. Finn first sought treatment in 2019 for post-
traumatic stress disorder related to the abuse, thereby commencing
the prescriptive period in 2019.
3. The district court' s order to remove the notice of lis pendens from
the St. Tammany Parish conveyance records, as well as the district
court' s failure to join the St. Tammany Parish Clerk of Court as an
indispensable party.
5
DISCUSSION
The Louisiana Supreme Court has recently handed down its opinion on the
case T.S. v. Congregation of Holy Cross Southern Province, Inc. and Holy Cross
College, Inc., 2022- 01826 ( La. 6/ 27123), So. 3d , 2023 VEL 4195778. The
facts of Holy Cross are strikingly similar to the facts of the instant case, and Holy
Cross addresses the same prescription issue. In Holy Cross, the plaintiff brought
claims against the defendant in Orleans Civil District Court for negligent hiring
and supervision and vicarious liability, alleging he had been sexually abused by
one of the school' s teachers over 55 years earlier, when the plaintiff was eleven
years old. The plaintiff relied on Act 322 as the basis for the timeliness of his
lawsuit. The defendant filed a peremptory exception raising the objection of
prescription. The district court sustained the exception, holding that Act 322 was
unconstitutional. Holy Cross, * 1- 2.
The plaintiff appealed directly to the supreme court. Although the supreme
court agreed that the plaintiffs claim had prescribed, it disagreed with the district
court' s constitutional basis for sustaining the exception. Instead, the supreme court
found that the claim had prescribed on statutory, non -constitutional grounds. Holy
Cross, * 3. In so doing, the supreme court relied on Burmaster v. Plaquemines
Parish Government, 2007- 2432 ( La. 5/ 21/ 08), 982 So. 2d 795, 802- 03, which
states, " courts should refrain from reaching or determining the constitutionality of
legislation unless, in the context of a particular case, the resolution of the
constitutional issue is essential to the decision of the case or controversy."
The supreme court concluded that the constitutionality of Act 322 did not
have to be addressed since the Act did not express a clear intent to revive
prescribed sexual abuse claims that occurred prior to 1993. Holy Cross, * 3. The
supreme court noted that Act 322 specifically addressed prescribed sexual abuse
11 See La. Const. art. V, § 5( D)( 1).
claims under La. R.S. 9: 2800. 9, which was enacted in 1993. Since the plaintiff' s
cause of action arose a considerable time before the enactment of La. R.S.
9: 2800.91 it prescribed under the one- year liberative prescriptive period of La. C. C.
art. 3492, which was applicable at that time.' Holy Cross, * 4.
While the supreme court recognized that 2022 La. Acts 386, which became
effective on June 10, 2022, ostensibly revived any cause of action related to sexual
abuse of a minor under any Louisiana prescriptive period,' O the supreme court
noted that the plaintiff s action was filed prior to Act 386' s enactment, and that the
plaintiff made a constitutional argument under Act 322, not Act 386. The supreme
court therefore found that a constitutional argument under Act 386 was not before
it. Holy Cross, * 4- 5.
Shifting to non -constitutional grounds, the supreme court found that the
plaintiff' s claim had prescribed on its face, and that the plaintiff had not satisfied
his burden of proving the claim had not prescribed. See Hogg v. Chevron USA,
Inc., 2009-2632 ( La. 716110), 45 So. 3d 998. Therefore, since the plaintiff had not
filed suit within one year of the alleged abuse, his claim was prescribed. Holy
Cross, * 5.
The plaintiff in Holy Cross also claimed that prescription was suspended
under the doctrine of contra non- valentem, because he was prevented by the
defendant from availing himself of his cause of action, and because the plaintiff
was not aware of his cause of action for a considerable amount of time. See Carter
v. Haygood, 2004- 0646 ( La. 1119105), 892 So. 2d 1. 261, 1286. The plaintiff
9 Louisiana Civil Code art. 3492 states, in pertinent part: " Delictual actions are subject to a
liberative prescription of one year. This prescription commences to run from the day injury or
damage is sustained."
YD 2022 La. Acts 386, § 2 states:
Any person whose cause of action related to sexual abuse of a minor was barred
by liberative prescription shall be permitted to file an action under R.S. 9: 2800. 9
on or before June 14, 2024. It is the express intent of the legislature to revive
until June 14, 2024, any cause of action related to sexual abuse of a minor that
previously prescribed under any Louisiana prescriptive period.
7
claimed he did not realize he had a cause of action until 2021, when he learned of
the disclosures of other victims of his abuser. Holy Cross, * 6. The district court
found contra non- valentem did not apply to the plaintiff' s claim because the
plaintiff had actually expressed awareness and understanding of his claim as early
as 1982 and as late as 2008, when the plaintiff was no longer a minor. Holy Cross,
5.
The supreme court in Holy Cross vacated that part of the district court' s
judgment pertaining to the constitutionality of Act 322, but affirmed the judgment
in all other respects. The supreme court also remanded the matter pursuant to La.
C. C. P. art 934, to allow the plaintiff to amend his petition. Holy Cross, * 7.
The issue in the instant case involves the interpretation of statutes. Thus, it
is a question of law, and reviewed by this court under a de nava standard of
review. Broussard v. Hillcorp Energy Co., 2009- 0449 ( La. 10120109), 24 So. 3d
813, 815- 16. We will also use the Holy Cross opinion as guidance on the issue of
prescription.
We find the following dates are pertinent in deciding the prescription issue:
Mr, Finn was abused by Mr, Strain from about 1975 to 1981, when La. C. C. art.
3492 provided the one- year prescriptive period for his claim. In 1993, La. R.S.
9: 2800. 9 was enacted. In June of 2019, Mr. Strain was indicted for felony sex
crimes, and in July of the same year, Mr. Finn was diagnosed with post- traumatic
stress disorder. Mr. Finn filed suit against Mr. Strain in 2020. On June 14, 2021,
Act 322 became effective and amended La. R.S, 9: 2800. 9, but it did not alter its
prescriptive period.
1 Chief Justice Weimer dissented in part, stating that the majority should have addressed the
constitutionality of Act 322. Justice Crain concurred in part and dissented in part, stating that the
district court failed to address the constitutionality of Act 386, and it therefore could be
dispositive of the merits of the defendant' s exception. He would have therefore remanded the
case to the district court for further proceedings. Holy Cross, * 8.
9
As with the plaintiff in Holy Cross, Mr. Finn did not file suit within a year of
the abuse. The sexual abuse Mr. Strain inflicted upon Mr. Finn purportedly ended
around 1981, and Mr. Finn' s claim would have prescribed around 1982, pursuant
to La. C. C, art. 3492. Mr. Finn filed suit in 2020 prior to the enactment of Act 322,
which revived claims involving sexual abuse of minors that had prescribed under
La. R.S. 9: 2800. 9. Following the reasoning of Holy Cross, Mr. Finn' s claim is
prescribed on its face. Act 322 could not have revived his claim, because his claim
prescribed under La. C. C. art. 3492 and not La. R.S. 9: 2800.9. The text of a law is
the best evidence of legislative intent. La. R.S. 24: 177( B)( 1); Red Stick Studio
Development, L.L. C. v. State ex rel. Dept. of Economic Development, 2010- 0193
La. 1119111), 56 So. 3d 181, 185, n. 7. Therefore, we will not extend Act 322 to
actions that prescribed prior to the enactment of La. R.S. 9: 2800. 9, since the words
of Act 322 do not provide for such. Mr. Finn' s claim is prescribed on its face, and
he has not provided sufficient proof to refute that it has so prescribed. This
conclusion is also consistent with the Holy Cross opinion.
Mr. Finn further argues that, according to the equitable doctrine of contra
non- valentem, the prescriptive period should be suspended, so that his filing the
instant lawsuit in 2020 would be considered timely. Mr. Finn bases this argument
on three points: that, before and while Mr. Strain was an Abita Springs police
officer, Abita Springs Chief of Police from 1985 to 1995, and then St. Tammany
Parish Sheriff from 1996 to 2016, Mr. Strain was able to use his power and
authority to intimidate and prevent Mr. Finn from pursuing legal action; that, until
Mr. Strain was indicted in June of 2019, he was still a powerful figure in St.
Tammany Parish, and Mr. Finn was fearful of any repercussions that would be
brought against him or his family as a result of filing suit; and that, until Mr. Finn
was diagnosed with post-traumatic stress disorder in July of 2019, he did not fully
realize or understand that he had a cause of action against Mr. Strain.
Z
Contra non- valentem non currit praescriptio means that prescription does
not run against a person who could not bring his suit. Wells v. Zadeck, 2011- 1232
La. 3130112), 89 So. 3d 1145, 1150. Louisiana jurisprudence has long recognized
the doctrine of contra non- valentem as a means of suspending the running of
prescription when the circumstances of a case fall within one of four categories.
Those categories are: ( 1) where there was some legal cause which prevented the
courts or their officers from taking cognizance of or acting on the plaintiffs action;
2) where there was some condition coupled with the contract or connected with
the proceedings which prevented the creditor from suing or acting; ( 3) where the
debtor himself has done some act effectually to prevent the creditor from
availing himself of his cause of action; and ( 4) where the cause of action is not
known or reasonably knowable by the plaintiff, even though this ignorance is not
induced by the defendant. Id. The third and fourth categories are applicable to the
instant case.
Mr. Finn does not argue that he was never aware that Mr. Strain sexually
abused him until liberative prescription had run. Rather, Mr. Finn' s argument
indicates he was aware of the abuse, since he states that Mr. Strain' s positions of
authority prevented him frorn seeking legal action. Mr. Strain was employed by
the Abita Springs Police Department from 1985 to 1995. Assuming Mr. Strain
could have indeed prevented Mr. Finn from filing suit, Mr. Strain' s jurisdiction and
authority at that time was only within the city of Abita Springs. Mr. Finn could
have sought legal advice and filed suit within the parish of St. Tammany but
outside the city of Abita Springs during that time. Therefore, whatever abilities
Mr. Strain may have had to prevent Mr. Finn from filing suit would not have
extended beyond the city limits of Abita Springs until 1996, when Mr. Strain
became the Sheriff of St. Tammany Parish, at which time the action would have
10
already prescribed. Therefore, the doctrine of contra non-valentem would be of no
benefit to Mr. Finn.
Additionally, we note the provision in La. C. C. P. art. 934," which mandates
an amendment to the petition when the grounds of the objection pleaded by the
exception may be removed by amendment. We therefore reverse that portion of
the judgment dismissing Mr. Finn' s claims with prejudice; we remand this case to
the district court to allow Mr. Finn, within a delay deemed reasonable by the
district court, to amend his petition to remove the grounds of the objection, if
possible. See Holy Cross, * 7; see also Painter v. Clouatre, 2021- 1462 ( La. App. 1
Cir. 6/ 16/ 22), 343 So. 3d 771, 776.
Since we affirm the trial court' s sustaining of the peremptory exception
raising the objection of prescription, we pretermit discussion on the notice of lis
pendens issue at this time, pending any forthcoming amendment to the petition by
Mr. Finn.
DECREE
The judgment of the Twenty -Second Judicial District Court, signed May 24,
2022, is affirmed in part and reversed in part. The matter is remanded pursuant to
La. C. C.P. art. 934. All costs of this appeal are assessed to the appellant, Mark
John Finn.
AFFIRMED IN PART, REVERSED IN PART; REMANDED
PURSUANT T4 LA. C.C.P. ART. 934.
Louisiana Code of Civil Procedure, article 934 states, in relevant part: " When the grounds of
the objection pleaded by the peremptory exception may be removed by amendment of the
petition, the judgment sustaining the exception shall order such amendment within the delay
allowed by the court."
11
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0998
MARK JOHN FINN
VERSUS
RODNEY " JACK" STRAIN, JR.
McClendon, 3., concurs.
I am constrained to agree with the result reached by the majority based on the
decision of the Louisiana Supreme Court in T.S. v. Congregation of Holy Cross
Southern Province, Inc. and Holy Cross College, Inc., 2422- 01826 ( La. 6/ 27/ 23),
So. 3d , 2023 WL 4195778.