Velocity Agency, LLC D/B/A Velocity Digital Advertising Versus Mary Beth St. John A.K.A. Jane Doe ( 2021 )

VELOCITY AGENCY, LLC D/B/A VELOCITY NO. 21-C-658
DIGITAL ADVERTISING FIFTH CIRCUIT
VERSUS COURT OF APPEAL
MARY BETH ST. JOHN A.K.A. JANE DOE STATE OF LOUISIANA
December 02, 2021
Susan Buchholz
First Deputy Clerk
IN RE HAROLD AND HELEN BARTHOLOMEW, JR.
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
MICHAEL P. MENTZ, DIVISION "F", NUMBER 804-003
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Hans J. Liljeberg
WRIT GRANTED, CASE REMANDED FOR RULING ON
EXCEPTION OF PRESCRIPTION
Defendants-relators, Harold and Helen Bartholomew, seek review of the trial
court’s ruling to defer to the merits a decision on their exception of prescription.
Relators contend that plaintiff’s claims are prescribed on their face, that plaintiff
failed to prove the doctrine of contra non valentem applies, and that the trial court
should have decided the exception of prescription before trial rather than deferring
the issue to trial on the merits. For the reasons that follow, we grant relators’ writ
application, vacate the trial court’s ruling, and remand to the trial court for a
determination on the merits of the exception of prescription.
Facts and Procedural History
Plaintiff-respondent, Velocity Agency, LLC, is an advertising company that
filed this defamation suit after receiving a negative online review on December 7,
2019, from “Mary Beth St. John.” Velocity alleges that the negative online review
was politically motivated, damaged the reputation of the business through lowering
its Google business rating, and was posted by someone who was not their
customer, resulting in substantial lost revenue.1
1
According to the Bartholomews’ writ application: “At the time the offending comments were
posted, Harold Bartholomew was involved in a political campaign for judgeship in St. Tammany
Parish and plaintiff, Velocity Agency, was engaged by his opponent. Velocity had taken several
21-C-658
Velocity filed suit on February 7, 2020 against the fictitious reviewer, “Mary
Beth St. John a.k.a. Jane Doe,” and then set about to discern the real identity of
Mary Beth St. John. The parties do not appear to dispute the timeline below, which
identifies certain steps taken in the litigation.
 December 7, 2019 – “Mary Beth St. John” posts a
review of Velocity on Google.com
 February 7, 2020 – Velocity files suit against
“Mary Beth St. John a.k.a. Jane Doe” and indicates
that it intends to amend the petition to state the true
name(s) of defendant(s) “once his or her identity
and capacity becomes known.”
 February 12, 2020 – Velocity files a Subpoena
Duces Tecum (SDT) asking Google to provide
information about the account of “Mary Beth St.
John”
 March 23, 2020 – Google provides the IP address
for the account created on December 7, 2019, which
posted the review
 March 26, 2020 – Velocity files an Emergency
Motion for Authorization to Obtain Identity via
Discovery, seeking permission to serve an SDT on
Charter Communications to obtain the real identity
of “Mary Beth St. John”
 March 27, 2020 – trial court authorizes the STD to
Charter
 April 29, 2020 – Lawyer moves to quash the
Charter SDT on behalf of “the individual notified
by Charter Communications that Charter intends to
supply his or her information” connected to the IP
address
 June 9, 2020 – Velocity issues notices of
depositions and subpoenas for oral depositions to
Helen and Harold Bartholomew for June 25, 2020
 July 28, 2020 – during her deposition, Helen
Bartholomew produces a letter from Charter
Communications regarding the SDT, but she denies
using the fictitious name “Mary Beth St. John,”
states that she does not believe she posted the
December 7, 2019 review, and supplies names of
people who could have had access to her internet
server/IP address.
 September 10, 2020 – Velocity receives the
certified return on the Charter subpoena, which
confirms that the relevant IP address was registered
to Harold and Helen Bartholomew
‘cheap shots’ at Mr. Bartholomew during the campaign, and Velocity suspected that Mr. or Mrs.
Bartholomew might be responsible for the postings.”
2
 June 12, 2021 – Velocity files its First
Supplemental and Amended Petition for Damages
and Injunctive Relief, adding Helen and Harold
Bartholomew as defendants.
Because the First Supplemental and Amending Petition, which named the
Bartholomews as defendants, was filed approximately 18 months after the
allegedly defamatory review was posted, the Bartholomews filed an exception of
prescription asserting that the claims had prescribed.
In response, Velocity argued that the Bartholomews prevented Velocity
from discovering their true identity; therefore, it argued that the First Supplemental
and Amending Petition related back under La. C.C.P. art. 1153, or, in the
alternative, the doctrine of contra non valentem suspended prescription and the
cause of action was not prescribed. After a hearing, the trial court deferred ruling
on the prescription exception to trial on the merits. The Bartholomews seek
supervisory review.
Argument
The Bartholomews argue first that under La. C.C.P. art. 929, a peremptory
exception, “when pleaded before or in the answer shall be tried and decided in
advance of trial of the case.” Although Short v. Griffin, 95-680 (La. 6/16/95), 656
So.2d 635, holds that a decision on an exception of prescription may be deferred
when the evidence “is so intertwined with evidence on the merits that it would be a
waste of judicial economy to try two matters in separate proceedings[,]” the
Bartholomews contend that all the evidence necessary to decide the exception was
before the trial court, which should have ruled. Second, the Bartholomews argue
that the doctrine of contra non valentem does not apply to suspend prescription in
this case, as Velocity was aware of the true identity of the defendants before the
one-year prescriptive period had run.
In opposition, Velocity contends the trial court acted within its vast
discretion in deferring a ruling on the prescription issue to trial on the merits,
because the evidence on the exception was intertwined with the evidence on the
merits, citing Lodrigues v. Duhé, 08-916 (La. 6/27/08), 983 So.2d 1287 (setting
aside court of appeal’s judgment to defer question of prescription to the merits),
and South Peters Hotel Investors, LP v. Roy Anderson Corp., 08-1035 (La. 6/6/08),
983 So.2d 908 (finding the trial court did not abuse its discretion in referring the
prescription issues to the merits, thereby granting the writ, setting aside the court of
appeal’s judgment, and reinstating the trial court’s judgment). As to the application
of contra non valentem, Velocity argues that by filing the First Supplemental and
Amended Petition on June 12, 2021, it filed within “one year of learning the
information that the IP Address was registered to the Bartholomew address,” and
the accrual of prescription was suspended under contra non valentem until
Velocity discovered this information.
Analysis
A trial court’s ruling deferring to the merits a decision on an exception of
prescription is reviewed for an abuse of discretion. Short v. Griffin, 656 So.2d at
636; South Peters Hotel Investors, L.P., 938 So.2d at 908.
3
We find the trial court abused its discretion in deferring the Bartholomews’
exception of prescription to the merits. In Short v. Griffin, the Louisiana Supreme
Court recognized that La. C.C.P. art. 929 “neither precludes a trial court from
referring a peremptory exception to trial on the merits nor divests the trial court of
the long-recognized discretion to refer peremptory exceptions to the merits.” In re
Medical Review Panel for Claim of Dede, 98-830 (La. App. 5 Cir. 5/20/98), 713
So.2d 794, 796 (citing Short, 656 So.2d at 635). Yet Short also states: “the trial
judge’s options in deciding the trial of the exception include referring the
exception to the merits in appropriate cases.” 656 So.2d at 636 (emphasis added).
In Short, a three-day trial on the exception of prescription was anticipated—an
exercise that would have been repeated in the event of a merits trial. Id. at 635.
Here, in contrast, the timeline of events is essentially undisputed, lengthy
testimony as to the prescription issue appears unnecessary to determine the factual
and legal issues presented, and Velocity has not established that the evidence
relevant to prescription is intertwined with the merits of this case. Although we
make no determination as to the Bartholomews’ second assignment of error
addressing the merits of their exception of prescription, we find the trial court erred
in deferring a decision to trial on the merits. We therefore grant relators’ writ
application, vacate the trial court’s ruling, and remand for a determination on the
merits of relators’ exception of prescription.
Gretna, Louisiana, this 2nd day of December, 2021.
SMC
FHW
HJL
4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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21-C-658
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24th Judicial District Court (Clerk)
Honorable Michael P. Mentz (DISTRICT JUDGE)
Brett W. Tweedel (Relator) Thomas G. Buck (Relator)
Scott C. Stansbury (Respondent) Bernard A. Dupuy (Respondent)
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Attorney at Law
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Metairie, LA 70002
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