Carl J. Calamia, Jr. Cathy Calamia Giancoatieri and Karen Calamia, Individually and as the Children of Carl J. Calamia, Sr. and Theresa Calamia Versus The Parish of Jefferson, Ferguson Enterprises, Inc., Doing Business as Louisiana Utilities Supply Company, a Ferguson Subsidiary, HSBC Holdings, Plc, and/or the Hongkong & Shanghai Banking Corporation Limited as Successors-In-Interest to the Asbestos Fiber Shipper/ Commodities Trader/ Merchant Bank Antony Gibbs & Co., Encana Corporation as Parent and Successor-In-Interest to Cassiar Resources Limited and Cassiar Asbestos Corporation Limited, Formosa Plastics Corporation U.S.a, Individually and as Parent, Alter-Ego and Successor-In-Interest to J-M Manufacturing Company, Inc., Individually and as Parent and Alter-Ego to J-M A/C Pipe Corporation, and Norca Corporation ( 2019 )

CARL J. CALAMIA, JR. ET AL NO. 19-CA-270
VERSUS FIFTH CIRCUIT
THE PARISH OF JEFFERSON, ET AL COURT OF APPEAL
STATE OF LOUISIANA
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
December 30, 2019
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Hans J. Liljeberg
VACATED AND REMANDED
HJL
FHW
JGG
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
LILJEBERG, J.
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
1
The Parish of Jefferson also filed an exception of no right of action pursuant to La. C.C.P. art 425(A),
which provides that a “party shall assert all causes of action arising out of the transaction or occurrence
that is the subject matter of the litigation.” The Parish of Jefferson argued that based on this provision,
19-CA-270 1
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
plaintiffs should be barred from bringing the current lawsuit because they chose to maintain their lawsuit
in Orleans Parish. Due to its decision to grant the Parish of Jefferson’s exception of prescription, the trial
court ruled the exception of no right of action was moot.
2
La. C.C.P. art 2324(C) provides as follows: “Interruption of prescription against one joint tortfeasor is
effective against all joint tortfeasors.”
3
The Parish of Jefferson claims that plaintiffs voluntarily dismissed it from the Orleans Parish lawsuit
prior to a hearing on its exceptions.
19-CA-270 2
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 an
improper venue and served on an improper agent for service of process did not
interrupt the prescriptive period.
Both parties relied on the pleadings from the Orleans Parish lawsuit when
presenting their arguments regarding the exception of prescription to the trial court.
It is also apparent from the reasons cited above that the trial court also relied on
these pleadings to determine the Orleans Parish lawsuit did not interrupt the
prescriptive period in the present matter. However, our review of the record
indicates these documents were not admitted into evidence.4
Evidence not properly offered and introduced cannot be considered, even if
it was physically placed in the record. Denoux v. Vessel Management Services,
Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. When considering an exception of
prescription, documents simply attached to memoranda do not constitute evidence
and cannot be considered as evidence on appeal. In Re Spurlock, 18-666 (La. App.
4
The transcript and record from the January 16, 2019 hearing indicates that the only documents entered
into evidence were documents from the Louisiana Secretary of State regarding the Parish of Jefferson’s
agent for service of process, which the Parish of Jefferson offered into evidence.
19-CA-270 3
5 Cir. 4/24/19), 271 So. 3d 338, 341 (finding the trial court erred by granting an
exception of prescription in the absence of properly admitted evidence).5
Upon our review of the record in this matter, we determine that the parties
failed to introduce, and the trial court did not admit, the Orleans Parish pleadings
into evidence. Consequently, there was no properly admitted evidence for the trial
court to consider when it determined that the Orleans Parish lawsuit did not serve
to interrupt prescription in this matter. Accordingly, we find the trial court erred
by granting the exception of prescription in the absence of properly admitted
evidence.
DECREE
For the foregoing reasons, we vacate the trial court’s judgment on the
exception of prescription and remand for further proceedings.
VACATED AND REMANDED
5
An exception exists with respect to summary judgment motions. La. C.C.P. art. 966(D)(2) permits a court to
“consider only those documents filed in support of or in opposition to the motion for summary judgment and shall
consider any documents to which no objection is made.” See Wood Materials, LLC v. City of Harahan, 17-142 (La.
App. 5 Cir. 10/2/17), 228 So.3d 293, 295 fn.2.
19-CA-270 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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DECEMBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-270
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE)
ERIN BRUCE SAUCIER (APPELLANT) MICHAEL S. FUTRELL (APPELLEE) JANICE M. CULOTTA (APPELLEE)
WILLIAM PETER CONNICK (APPELLEE) ALEXANDER A. LAURICELLA MATTHEW D. MOGHIS (APPELLEE)
(APPELLANT)
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