Denoux v. Vessel Management Services, Inc.

_JjWe granted this writ application to consider whether the lower courts erred in sustaining the exception of prescription filed by defendant, Glidden Company d/b/a ICI Paints (“Glidden”). The court of appeal correctly found that Plaintiffs’ claims against Glidden are prescribed, but we vacate the findings of the court of appeal in regard to whether Plaintiffs were Jones Act seaman, whether the Belle of Orleans was a vessel in navigation, and whether admiralty jurisdiction is applicable to the Plaintiffs’ claims.

FACTS AND PROCEDURAL HISTORY

The Belle of Orleans, LLC (“Belle”) was the owner of the riverboat, MTV Belle of Orleans, and Bally’s Louisiana, Inc. (“Bally’s”) operated the vessel as a riverboat Lcasino. Belle and Bally’s contracted with Vessel Management Services, Inc. (“VMS”) to provide certain marine management and other services on the M/V Belle of Orleans. VMS was responsible for staffing all marine crew positions aboard the Belle. The workers’ duties included performing maintenance and repair work on the vessel as needed. Plaintiffs were employees of VMS who allegedly incurred injuries from exposure to toxic fumes between April and June 2000, while doing chipping and painting work (“Inner Bottom Project”) in the bottom interior portion of the hull of the M/V Belle of Orleans.

Plaintiffs filed their initial Petition for Damages against VMS, Bally’s and Belle on November 14, 2001. Plaintiffs filed their suit pursuant to the Jones Act, 46 U.S.C. § 688, the “savings to suitors clause,” and under the general maritime law. Plaintiffs alleged that they were seamen and members of the crew of the MTV Belle of Orleans. Plaintiffs further alleged that they were exposed to, and injured by, toxic fumes during their work on the Belle, and that they were ordered to do the work of applying primer and paint in the hold and ballast tanks of the M/V Belle, and worked without ventilation or protective equipment.

On March 18, 2002, Belle and Bally’s filed a third party demand against Glidden. Belle and Bally’s alleged that to the extent that the paint used by the Plaintiffs was unsuitable for its use by VMS, or contained inadequate warnings or instructions for its use, the Plaintiffs’ damages were caused by Glidden’s fault. Belle and Bally’s also sought indemnity or contribution from Glidden to the extent that Glidden’s fault caused the Plaintiffs’ injuries.

On March 17, 2006, Plaintiffs filed a Fourth Amended Petition, adding Glidden as a defendant. Plaintiffs alleged that Glidden was “the manufacturer of the toxic paint which created the damages sustained by the plaintiffs.” Further, Plaintiffs’ ^allegations against Glidden were based solely on Louisiana law, specifically alleging negligence and product liability. Plaintiffs also alleged that Glidden was solidarity hable with Bally’s, Belle and VMS.

In response to the Plaintiffs’ Fourth Amended Petition, Glidden filed an exception of prescription arguing that Plaintiffs’ action was governed by the one-year prescriptive period set forth in La. C.C. art. 3492 and that Plaintiffs did not timely file suit within one year of their exposure to the fumes (between April and June of 2000). Plaintiffs opposed the exception, arguing that their claims were governed by the three-year prescriptive period applicable to maritime law.

The trial court sustained the exception of prescription, and the court of appeal affirmed. The Plaintiffs then filed the instant writ application in this Court.

DISCUSSION — PRESCRIPTION

In its Exception of Prescription, Glidden argued that all of the Plaintiffs’ claims sounded in tort, and were therefore subject to the one-year prescriptive period set forth in La. C.C. art 3492. Glidden noted that Plaintiffs’ Fourth Amended Petition specifically alleged that Glidden was liable solely under Louisiana law. Glidden argued that nowhere did Plaintiffs allege a cause of action against Glidden pursuant to federal general maritime law. Glidden argued that because Plaintiffs’ Petition was 14prescribed on its face, Plaintiffs had the burden of proving that prescription had not run on their claim, and that Plaintiffs failed to present any such evidence. Glid-den pointed out that Plaintiffs’ exposure to the paint fumes began in April of 2000, more than a year before plaintiffs filed their original Petition for Damages in November of 2001. Thus, by the time Plaintiffs filed suit against VMS, Bally’s and Belle, prescription on Plaintiffs’ claims against Glidden had already run, thereby extinguishing any cause of action Plaintiffs may have had against Glidden. Glidden argues that a timely filed Jones Act/general maritime tort claim against VMS, Bally’s and Belle cannot revive the already prescribed action on the claims against Glidden.

The Plaintiffs opposed the Exception of Prescription, arguing that the causes of action against Glidden were maritime in nature and governed by the uniform three-year statute of limitations established by 46 App. U.S.C. § 763a. Plaintiffs argued that their damages were sustained entirely aboard the Belle of Orleans by seaman-employees of VMS. Plaintiffs argued that the causes of action against VMS, Bally’s and Glidden arose at a maritime location and in a maritime context, and thus 46 U.S.CApp. § 763a applies.

In response, Glidden argued that Plaintiffs failed to satisfy their burden of proving that their claims were not prescribed. Glidden has also pointed out that the deposition testimony relied on by the Plaintiffs to oppose the exception of prescription was never introduced into evidence, but merely attached to the Plaintiffs’ opposition memorandum. Plaintiffs have admitted that they did not introduce the ^depositions into evidence, but argue that all parties and the court of appeal treated the depositions as if they had be introduced. Thus, Plaintiffs suggest that defendants have essentially waived this argument.

A review of Plaintiffs’ Fourth Amended Petition reveals that the claims asserted against Glidden were made solely pursuant to Louisiana law. Delictual actions under Louisiana law generally prescribe within one year of the date the injuries or damage was sustained. La. C.C. art. 3492. Plaintiffs alleged that they were injured from exposure to toxic fumes from April to June of 2000. Jurisprudence provides that a cause of action resulting from exposure to fumes accrues upon exposure and the manifestation of initial symptoms. Thus, Plaintiffs’ suit against Glidden, which was not filed until March of 2006 (almost six years after the initial exposure) is clearly prescribed on its face. While, ordinarily, the burden of proof is on the party pleading prescription, when the plaintiffs petition has clearly prescribed on its face, as here, the burden shifts to the plaintiff to prove that the claim has not prescribed. Rizer v. American Surety and Fidelity Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387; Lima v. Schmidt, 595 So.2d 624, 628 (La.1992). Thus, Plaintiffs were required to prove that their claims against Glidden had not prescribed.

Plaintiffs argue that their claims against Glidden fall under maritime law, and thus are subject to a three-year prescriptive period, rather than the one-year state tort period. The issue is whether Plaintiffs met their burden of proving that their claims against Glidden fell within federal admiralty jurisdiction.

Upon our review of the record in the instant ease, we determined that the Plaintiffs failed to formally admit any evidence in opposition to the exception of prescription. The depositions contained in the record, and relied upon by the lower | ^courts, were never entered into evidence. At the trial of a peremptory exception of prescription, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La.11/29/05), 917 So.2d 424, citing Waguespack v. Judge, 04-0137 (La.App. 5th Cir.6/29/04), 877 So.2d 1090.

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal. See: Ray Brandt Nissan v. Gurvich, 98-634 (La.App. 5th Cir.1/26/99), 726 So.2d 474; Gulf Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5th Cir.5/30/95), 656 So.2d 1081; City of Eunice v. CLM Equipment Co., Inc., 505 So.2d 976, 978 (La.App. 3rd Cir.1987); Norton v. Thome, 446 So.2d 972, 974 (La.App. 3rd Cir.1984); Wilkin-Hale State Bank v. Tucker, 148 La. 980, 88 So. 239 (1921).

Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. La. C. Civ. P. art. 2164; Gallagher v. Gallagher, 248 La. 621, 181 So.2d 47 (1965); Bullock v. Commercial U. Ins. Co., 397 So.2d 13 (La.App. 3rd Cir.1981); Holmes v. St. Charles General Hosp., 465 So.2d 117 (La.App. 4th Cir.1985); B.W.S., Jr. v. Livingston Parish School Board, 02-1981, p. 2 (La.8/16/06), 936 So.2d 181, 182 {per curiam). None of the depositions relied on by the Plaintiffs were properly before the trial court at the time of the hearing, nor were they properly part of the record on appeal. Thus, based on the content of the record before us, we must conclude that Plaintiffs failed to meet their burden of proof in this matter. As this Court noted in Cichiñllo, “[flailure to adequately prepare the 17record by neglecting to offer matters into evidence can alter the outcome of a ease, especially in an exception of prescription where the burden of proof may shift between the parties.” Cichirillo, 917 So.2d at 428, n. 7.

We also note that although Plaintiffs alleged that Glidden was jointly and solidarily liable with the original defendants, VMS, Bally’s and Belle, Plaintiffs cannot rely on their allegation of solidary liability against the other defendants when their petition against these other defendants was not filed within one year. While Plaintiffs’ cause of action accrued in April of 2000, Plaintiffs did not file their original petition for damages until November of 2001-more than a year after the acts which gave rise to their injuries took place. Del-ictual actions are subject to the liberative prescription of one year. La. C.C. art. 3492. Civilian prescriptive periods act to extinguish the civil obligation to which they apply. Louisiana Health Service and Indemnity Company v. McNamara, 561 So.2d 712 (La.1990). Once a cause of action is extinguished by prescription, a subsequent timely suit against alleged soli-dary obligors will not revive the prescribed action. Rizer, 669 So.2d at 390-391; Whitnell v. Menville, 540 So.2d 304 (La.1989). Plaintiffs injuries occurred between April and June, 2000. There was no action interrupting or suspending the prescriptive period filed prior to November of 2001. Therefore, the Plaintiffs’ petition against the other three defendants will not revive the prescribed tort action against Glidden.

For these reasons, we find that the trial court properly sustained the exception of prescription.

JONES ACT / MARITIME CLAIMS

In sustaining the exception of prescription, the trial court found that the Plaintiffs’ cause of action against Glidden rested in Louisiana products liability law, hand thus a one-year statute of limitations applied. In affirming the decision of the trial court, the court of appeal agreed that the Plaintiffs’ claims against Glidden were governed by Louisiana law.

Rather than limiting its ruling to the narrow issue before it, the court of appeal overreached and went on to summarily hold that these plaintiffs were not Jones Act seamen, the craft on which they served was not a vessel, and their claims against the defendants did not fall within the admiralty jurisdiction — effectively dismissing the Plaintiffs’ entire action against all remaining defendants, Belle, Bally’s and VMS. Not only were these issues not directly before the court, but, based on the record before the court of appeal, there was no evidence upon which the court of appeal could properly make these findings. Thus we vacate the ruling on these issues.

DECREE

For the foregoing reasons, we affirm that portion of the court of appeal’s judgment affirming the judgment of the trial court which sustained the exception of prescription by Glidden Company, d/b/a ICI Paints. We vacate the portions of the court of appeal’s judgment finding that Plaintiffs are not Jones Act seaman, that the Belle of Orleans was not a vessel in navigation, and that none of the Plaintiffs’ claims fall within the admiralty jurisdiction.

AFFIRMED IN PART, VACATED IN PART.

CALOGERO, Chief Justice, concurs and assigns reasons.

JOHNSON, Justice, additionally concurs and assigns reasons.

. La. C.C. 3492 provides:

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

. After Glidden filed its Exception of Prescription, Plaintiffs attempted to file a Fifth Amended Petition to add a paragraph stating maritime tort claims against Glidden. However, the order allowing this Petition to be filed was never signed by the trial court. Further, Plaintiffs attempted to file a Sixth Amended Petition adding a claim against Glidden pursuant to the Admiralty Extension Act, but the trial court denied the Plaintiffs leave to file this Petition.

.46 App. U.S.C.A. § 763a provides: "Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.” As of October 6, 2006, 46 App. U.S.C.A. § 763a is now cited as 46 U.S.C.A. § 30106.

. See: Clay v. Union Carbide Corp., 828 F.2d 1103 (5lh Cir.1987).