Era Sanders v. Petrin, L.L.C. a/k/a Petrin Corporation ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1625
ERA SANDERS
VERSUS
PETRIN, L.L. C. A/K/ A PETRIN CORPORATION
Judgment Rendered: JUL 2 4 2020
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF WEST BATON ROUGE
STATE OF LOUISIANA
DOCKET NUMBER 43658, DIVISION " D"
HONORABLE ELIZABETH A. ENGOLIO, JUDGE
Lon E. Roberson Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana Era Sanders
David K. Johnson Attorney for Defendant/Appellee
Baton Rouge, Louisiana Petrin, L.L.C., a/ k/ a Petrin
Corporation
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDonald, J.
This is an appeal from a judgment sustaining defendant' s exception of
prescription and dismissing plaintiff's suit with prejudice. After review, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 19, 2017, the plaintiff, Era Sanders, fax -filed a petition for damages
naming as defendant his employer, Petrin, L.L.C., a/ k/ a Petrin Corporation (Petrin).'
Mr. Sanders maintained that he was injured at work due to the intentional acts of
Petrin on or about May 16, 2016. Petrin filed an answer, denying the allegations,
and asserting numerous affirmative defenses.
Thereafter, Petrin filed an exception of prescription. Petrin asserted that the
petition was prescribed because Mr. Sanders' testimony, as well as his medical
records, showed that his injury occurred on or before March 29, 2016, and his suit
was not filed until more than one year after the injury. Petrin asked that the petition
be dismissed with prejudice. In support of its exception, Petrin attached to its
memorandum two exhibits: an excerpt from Mr. Sanders' deposition, and Mr.
Sanders' medical records from Our Lady of the Lake Regional Medical Center
OLOL) showing the treatment he received on March 29, 2016.
The matter was heard on June 25, 2019, and the entire record was entered into
evidence by Petrin. At the close of the hearing, the trial court sustained the exception
of prescription. The judgment was signed on July 30, 2019, dismissing Mr. Sanders'
suit with prejudice. Mr. Sanders appeals the judgment.
DISCUSSION
In his sole assignment of error, Mr. Sanders maintains that the trial court erred
We note that the trial court found that the petition was fax -filed on May 12, 2017. The chronological
index of the record indicates that the petition was fax -filed on May 11, 2017. However, the petition in the
record on appeal does not contain a fax -filing date stamp. The petition was untimely regardless of which
of these May 2017 dates it was filed on since the trial court concluded the accident occurred no later than
March 29, 2017.
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by not considering his injury to be a continuing tort lasting past March 29, 2016.
The issue of a continuing tort was raised by Mr. Sanders for the first time on appeal.
In his deposition, Mr. Sanders testified he was working with wet cement on a
Saturday when he first noticed holes in his gloves. He went to the bathroom to wash
his hands and found " a lot of little bumps." He testified that about a week later, his
hands were dry and cracked, so he went to the shop foreman, and then he went to
OLOL, where he was given a prescription cream for his hands.
The records from OLOL show that Mr. Sanders went to the emergency room
on March 29, 2016. He reported that he had gotten wet cement on his hands a week
earlier, resulting in itching and cracked skin on both hands. He was diagnosed with
chemical dermatitis and dry skin dermatitis, given a prescription for a cream to apply
to his hands, and discharged.
At the hearing, the trial court noted that the petition alleged that the injury
occurred on May 16, 2016; however, the trial court found that the injury occurred no
later than March 29, 2016, when Mr. Sanders went to the OLOL emergency room
for treatment.
Under La. C. C. art. 3492, delictual actions are subject to a liberative
prescription of one year, which commences to run from the day injury or damage
is sustained. A party urging an exception raising the objection of prescription has
the burden of proving facts to support the exception unless the petition is prescribed
on its face. Dunn v. City of Baton Rouge, 2007- 1169 ( La. App. 1 Cir. 2/ 8/ 08), 984
So. 2d 129, 130.
If evidence is introduced at the hearing on the peremptory exception of
prescription, the trial court' s findings of fact are reviewed under the manifest error
standard of review. Cawley v. National Fire & Marine Ins. Co., 2010- 2095 ( La.
App. 1 Cir. 5/ 6/ 11), 65 So. 3d 235, 237.
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The entire suit record, including the attachments to the memorandum in
support of the exception of prescription, was introduced into evidence at the hearing
by Petrin. Thus, the manifest error standard of review applies to the trial court' s
findings of fact.
In order to reverse a factfinder' s determinations, the appellate court must find
from the record that a reasonable factual basis does not exist for the finding of the
trial court, and the appellate court must further determine that the record establishes
that the finding is clearly wrong (manifestly erroneous). Stobart v. State through
Dept. of Transp. and Development, 617 So. 2d 880, 882 ( La. 1993).
The evidence shows that Mr. Sanders sought treatment for his injury on March
29, 2016 at the OLOL emergency room. While Mr. Sanders alleges in brief that he
suffered a continuing tort, there is no evidence in the record of an injury past the date
on which Mr. Sanders was treated at OLOL and released.
Thus, after review, we find no manifest error in the trial court' s determination
that Mr. Sanders' injury occurred no later than March. 29, 2016, the date that he went
to OLOL for treatment, and thus, his suit is prescribed. Therefore, the trial court
judgment is affirmed.
CONCLUSION
For the foregoing reasons, the trial court' s July 30, 2019.judgment, sustaining
Petrin, L.L.C. a/k/ a Petrin Corporation' s exception of prescription, and dismissing
Era Sanders' claims with prejudice, is affirmed. Costs of this appeal are assessed
against Era Sanders.
AFFIRMED.
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