Judge Rosemary Ledet.
This is a suit on a promissory note and mortgage. From the trial court's judgment granting, in part, the peremptory exception of prescription filed by the defendants, Betty Galloway and her two children (Valerie Sennette Galloway and Gregory Louis Galloway) (collectively the "Galloways"), the Galloways appeal. For the reasons that follow, we convert the appeal to an application for supervisory writ, grant the writ, reverse the trial court's judgment, and remand with instructions.
On April 7, 2016, Wells Fargo Financial Louisiana ("Wells Fargo"), as successor to Norwest Financial America, Inc., commenced this suit, entitled "Petition to Enforce Security Interest by Ordinary Process," against the Galloways. The basis for the suit was two-fold. First, December 1, 1999, the Galloways, as co-owners of a certain immovable property in New Orleans, Louisiana, executed a multiple indebtedness mortgage (the "Mortgage"). Second, on August 14, 2002, Betty Galloway executed a note in the original principal amount of $58,652.28 (the "Note") and a security agreement; the Note was secured by the Mortgage.
In its petition, Wells Fargo averred that "[t]he obligor has defaulted on the note and security agreement and mortgage by failing to pay, when due, the monthly installments required by the note and security agreement and mortgage." Wells Fargo further averred that it gave notice of default to the obligor, Betty Galloway.
Wells Fargo prayed for a judgment for the "principal of $45,852.94 with interest thereon... from January 19, 2009, until paid."
In response, the Galloways filed various exceptions, including a peremptory exception of prescription.
Wells Fargo countered that the Note was not prescribed because the Galloways had acknowledged the debt. Wells Fargo contended that in various correspondence between the parties after the date of Betty Galloway's last payment — May 15, 2010 — the Galloways acknowledged the debt, which interrupted the prescriptive period. In the alternative, Wells Fargo contended that only the payments due more than five years before the suit was filed had prescribed.
Following a hearing, which was held on July 27, 2016, the trial court granted, in part, the exception of prescription. The trial court found that "anything due prior to April 7, 2011 [five years before the suit
"Before reaching the merits of an appeal, an appellate court has a duty to determine, on its own motion, whether subject matter jurisdiction exists." Moulton v. Stewart Enters., Inc., 17-0243, 17-0244, p. 3 (La. App. 4 Cir. 8/3/17), 226 So.3d 569, 571 (citing Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425). Accordingly, we initially must determine whether the judgment granting in part and denying in part the Galloways' peremptory exception of prescription is properly before us on appeal.
This court's appellate jurisdiction extends to "final judgments." Kirby v. Poydras Ctr., LLC, 15-0027, 15-0391, p. 8 (La. App. 4 Cir. 9/23/15), 176 So.3d 601, 606 (citing La. C.C.P. art. 2083). "`[A] judgment that determines the entirety of the merits of the action is appealable under La.Code Civ.Proc. art. 2083, but a judgment that only partially determines the merits of the action is a valid partial final judgment (and therefore appealable) only if authorized by Article 1915.'" Rhodes v. Lewis, 01-1989, p. 3 (La. 5/14/02), 817 So.2d 64, 66 (quoting Douglass v. Alton Ochsner Med. Found., 96-2825 (La. 6/13/97), 695 So.2d 953).
The right to appeal a partial final judgment is governed by La. C.C.P. art. 1915, which has two subparts. "Subpart A of La. C.C.P. art. 1915 designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court." Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 16-0171, 16-0172, p. 6 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1053. "Subpart B of La. C.C.P. art. 1915 provides that when a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay." Id.; see also Favrot v. Favrot, 10-0986, pp. 2-3 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102.
Subpart B of La. C.C.P. art. 1915 has two subparts. The first subpart provides that "the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay." La. C.C.P. art. 1915(B)(1). The second subpart provides that "[i]n the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties." La. C.C.P. art. 1915(B)(2); see also La. C.C.P. art. 1911(B) (providing, in part, that "[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)").
The judgment the Galloways seek to appeal, which grants in part and denies in part their peremptory exception of prescription, is governed by Subpart B of La. C.C.P. art. 1915.
"An appeal erroneously taken on a nonappealable judgment may be converted to an application for supervisory writ by the appellate court, but only when the motion for appeal has been filed within the thirty-day period allowed for the filing of an application for supervisory writ under Rule 4-3 of the Uniform Rules — Courts of Appeal." Succession of Fanz, 16-0180, pp. 6-7 (La. App. 4 Cir. 12/16/16), 208 So.3d 422, 428, writs denied, 17-0084 (La. 3/24/17), 216 So.3d 816; 17-0310 (La. 3/24/17), 217 So.3d 355.
The sole issue before us is whether the trial court erred in denying, in part, the Galloways' peremptory exception of prescription.
When no evidence is introduced, "the judgment is reviewed simply to determine whether the trial court's decision was legally correct." Arton v. Tedesco, 14-1281, p. 3 (La. App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128. A de novo standard of review applies. In this context, "the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true." Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88; Ohle v. Uhalt, 16-0569, p. 13 (La. App. 4 Cir. 2/1/17), 213 So.3d 1, 10.
When evidence is introduced, the trial court's factual findings on the issue of prescription generally are reviewed under the manifestly erroneous-clearly wrong standard of review. Miralda, 14-0888 at p. 17, 160 So.3d at 1009 (collecting cases). When evidence is introduced but the case involves no dispute regarding material facts, only the determination of a legal issue, an appellate court must review the issue de novo, giving no deference to the trial court's legal determination. See Cawley v. National Fire & Marine Ins. Co., 10-2095, p. 3 (La. App. 1 Cir. 5/6/11), 65 So.3d 235, 237. Likewise, "[w]hen the defense of prescription is raised by way of summary judgment, we review the resulting judgment de novo, `using the same criteria used by the trial court in determining whether summary judgment is appropriate.'" M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov't, 15-0860, p. 11 (La. App. 4 Cir. 12/2/15), 182 So.3d 312, 320 (quoting Hogg v. Chevron USA, Inc., 09-2632, 09-2635, p. 6 (La. 7/6/10), 45 So.3d 991, 997).
Ordinarily, the defendant — the party asserting a peremptory exception of prescription — bears the burden of proof. Engine 22, LLC v. Land & Structure, LLC, 16-0664, 16-0665, p. 5 (La. App. 4 Cir. 4/5/17), 220 So.3d 1, 5; Felix v. Safeway Ins. Co., 15-0701, p. 4 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 630. When the plaintiff's claim is prescribed on the face of the petition, however, the burden shifts to the plaintiff to establish that his or her claim has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La. 1992); Engine 22, 16-0664, 16-0665 at p. 5, 220 So.3d at 5.
When the plaintiff fails to allege specific dates in the petition, it cannot be determined whether the suit is prescribed on the face of the petition. See Bureaus Inv. Grp. No. 2, LLC v. Howard, 06-273, p. 5 (La. App. 5 Cir. 11/14/06), 947 So.2d 37, 39 (noting that "[t]he absence of proof of the dates the debts were incurred does not prove prescription on the face of the pleading"); see also Cerullo v. Heisser, 16-558, p. 4 (La. App. 5 Cir. 2/8/17), 213 So.3d 1232,
"Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished." Mallett v. McNeal, 05-2289, 05-2322, p. 5 (La. 10/17/06), 939 So.2d 1254, 1258. The applicable prescriptive period is determined by the character of the action pled in the petition. Starns v. Emmons, 538 So.2d 275, 277 (La. 1989).
The governing prescriptive period in this case is the five-year period set forth in La. C.C. art. 3498, which provides as follows:
"When a promissory note is payable in installments, as opposed to on demand, the five-year prescriptive period commences separately for each installment on its due date." JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594, p. 10 (La. App. 1 Cir. 11/20/14), 168 So.3d 421, 428 (collecting cases). But, "if the installments are accelerated based upon a default, prescription for the entire accelerated amount commences on the day of acceleration. Id., 14-0594 at pp. 10-11, 168 So.3d at 428.
In analyzing a prescription issue, the proper place to begin is by analyzing the allegations of the petition. See Lima v. Schmidt, 595 So.2d 624, 628 (La. 1992).
JP Morgan Chase Bank, 14-0594 at p. 11, 168 So.3d at 428-29.
An analysis of the petition establishes that the date of the acceleration in this case was February 19, 2009. This suit, however, was not filed until April 7, 2016, more than five years beyond the date of the acceleration. This suit is prescribed on the face of the petition. The burden of proof on the exception of prescription thus shifted to Wells Fargo to establish that its claim had not prescribed. Although a hearing was held on the exception, Wells Fargo failed to present any evidence to establish an interruption or suspension of prescription. Wells Fargo thus failed to meet its burden of proof.
Given our finding that Wells Fargo's claim is prescribed on the face of the petition and that Wells Fargo failed to meet its burden of proof, the issue of whether the Galloways introduced any evidence at the hearing has no bearing on the outcome of this appeal. For this reason, we deny the Galloways' motion to remand to the district court for the taking of additional evidence.
Summarizing, the applicable standard of review in this case is the de novo standard as the allegations of the petition form the basis for our decision. Given this suit is prescribed on its face, the trial court legally erred in denying, in part, the exception of prescription. Nonetheless, the jurisprudence construing La. C.C.P. art. 934
The present procedural posture of this case, however, is somewhat unusual. After the trial court rendered its judgment granting, in part, the Galloways' exception of prescription, Wells Fargo filed a motion to amend its petition, which the trial
For the foregoing reasons, we convert the appeal to an application for supervisory writ; grant the writ; reverse the trial court's judgment denying, in part, the exception of prescription; and remand with instructions to allow Wells Fargo to re-file an amendment to the petition. We deny the Motion to Remand.
Although the Galloways indirectly re-urge their exception of no right of action by cross-referencing the exception they filed in the trial court, they fail to brief the issue. (The Galloways' sole assignment of error, cross-referencing the exception of no right of action, is quoted elsewhere in this opinion.). For this reason, this issue is not before us on appeal. See Uniform Rules, Courts of Appeal, Rule 2-12.4 (providing that "[t]he court may consider as abandoned any assignment of error or issue for review which has not been briefed."); see also McMaster v. Progressive Sec. Ins. Co., 14-0155, pp. 6-7 (La. App. 4 Cir. 10/29/14), 152 So.3d 979, 983 (citing Rule 2-12.4 and noting that "[i]t is also well settled that if an appellant identifies an assignment of error or an issue presented for review, but fails to brief that point with citations to the record and support in the law, that issue or assignment is deemed waived"). We thus confine our analysis to the peremptory exception of prescription.
Id. at 13-0085 at pp. 7-8, 156 So.3d at 103-04; see also McGinn v. Crescent City Connection Bridge Auth., 15-0165, pp. 4-5 (La. App. 4 Cir. 7/22/15), 174 So.3d 145, 148; Kirby v. Poydras Ctr., LLC, 15-0027, p. 13, n. 9 (La. App. 4 Cir. 9/23/15, 13), 176 So.3d 601, 608.
