Discovery Rule Can’t Save a Louisiana Succession’s Untimely Claim

Originally published by Charles Sartain.

In May et al v. Succession of Mayo Romero et al a Louisiana court of appeal denied the plaintiff’s efforts to suspend the running of liberative prescription in the face of peremptory exceptions. The discovery rule is one theory under which the doctrine of contra non valentum can save a late-filed lawsuit. Call it what you want, but opening a succession to investigate claims and sitting on those claims for 13 years is not likely to yield a beneficial result for the plaintiff. 

Ms. May, as administratrix of the Succession of Sylvany Carrier, owned 23 acres of land in Iberia Parish. She sued adjoining landowners and Texaco and its successor Chevron for violation of the Louisiana Unfair Trade Practices Act, fraud, and failure to pay oil and gas royalties.

A brief review of Louisiana liberative prescription

Prescriptive periods in Louisiana are one year for fraud, one year for violation of the LUTPA, and three years for unpaid mineral royalties, and there is the 10-year general prescriptive period under Civil Code Art. 3499.

Prescription begins to run on the date the injured party discovers or should have discovered the facts upon which the cause of action is based. It doesn’t run against one who is ignorant of the facts upon which his claim is based so long as such ignorance is not willful, negligent or unreasonable.

Contra non valentem, applied only in exceptional circumstances, suspends the running of prescription. Two theories under this doctrine could have been available to this plaintiff to suspend prescription:

• When the debtor has done some act or fact effectively to prevent the creditor from availing himself of the cause of action;
• The “discovery rule”: Where a cause of action is not known or reasonably knowable by the plaintiff so long as his ignorance is not induced by the defendant.

Constructive knowledge, in the absence of actual knowledge of a claim, is whatever notice is enough to “excite attention and put the injured party on guard call for inquiry”. The court’s ultimate consideration is the reasonableness of the injured parties’ action or inaction in light of the surrounding circumstances.

… applied to the 2006 Succession

Because there was no evidence that the Succession had any contract or agreement that would entitle it to a claim for unpaid royalties the trial court, out of an abundance of caution, applied the 10-year prescriptive period. The suit was filed in 2019, six months after Ms. May said she first saw a pumpjack on the property.

There was no evidence of concealment by the defendants. There was a 1934 oil and gas lease that was not presented to the trial court and therefore not considered. Chevron’s expert testified that no well was ever drilled on the 23 acres and the land was never pooled.

The Succession was opened in 2006 for the purpose of determining whether oil or gas had been extracted from the property and revenues from production paid to others. Prescription began to run on the date of the filing of the 2006 petition. On that date the Succession was well aware of its potential claims. The suit was filed more than 13 years later. Appointed in 2012, Ms. May never read the petition.

The court of appeal determined that there was no manifest error by the trial court in granting the defendants’ peremptory exception of prescription. The Succession had all the necessary constructive knowledge it needed in 2006 that it might have a claim.

Funky Christmas cheer from Jon Batiste.

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