STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2022 CA 0998 MARK JOHN FINN VERSUS 

# t RODNEY " JACK" STRAIN, JR. Judgment Rendered: 

### SEP 13 2023 -

Appealed from the 22nd Judicial District Court 

### In and forthe Parish ofSt.Tammany

State of Louisiana Case No. 2020- 12111 The Honorable Cornelius E. Regan 

### Ad HocJudge Presiding

Antonio McMon Covington, Louisiana Gwyneth O' Neill William P. Gibbens New Orleans, Louisiana J. Collin Sims Elizabeth Authement Covington, Louisiana Counsel for Plaintiff/ Appellant MarkJohn Finn Counsel for Defendant/Appellee 

### Rodney " Jack" Strain, Jr.

Counsel for Defendant/Appellee State of Louisiana

BEFORE: McCLENDON, WELCH, AND LANIER, JJ.LANIER,J. In this appeal, plaintiff/ appellant, Mark John Finn, seeks review of the 

### Twenty-second Judicial District Court's judgment sustaining the peremptory 

## exception raising the objection ofprescription, and the motion to lift stay and to remove improperly filed lispendens, both filed bythe defendant/appellee, Rodney Jack" Strain, Jr. Forthe reasons that follow,we affirm in part, reverse in part, and remand pursuant to La. C.C.P. art. 934. FACTS AND PROCEDURAL HISTORY 

### On May 15, 2020, Mr.Finn filed apetition for compensatory and exemplary 

### damages against Mr. Strain, in which Mr. Finn alleged that beginning in 1975, when Mr. Finn was six years old and Mr. Strain was about thirteen years old, Mr. 

### Strain repeatedly abused Mr. Finn sexually by committing numerous sexual acts upon Mr. Finn and forcing Mr. Finn to commit sexual acts upon Mr. Strain, himself, animals, and other children. Mr. Finn alleged that Mr. Strain used force and intimidation for him to commit these acts of abuse, and that this force and 

### intimidation continued into their adult lives, when Mr. Strain used his authority as 

### Police ChiefofAbita Springs and lateras SheriffofSt.Tammany Parish to enforce Mr. Finn' s silence. Mr. Finn further alleged that due to the abuse and manipulation 

### inflicted upon him by Mr. Strain, he has suffered post traumatic stress disorder, extreme emotional distress, depression, bodily injury, loss ofincome, humiliation, and extreme anger, all ofwhich have ledto Mr.Finn's drug use, criminal behavior, and damaged reputation. 

### On July 29, 2020, the State of Louisiana, through the St. Tammany Parish District Attorney's Office, filed a motion to intervene for purposes of staying all 

### discovery in the lawsuit. In the motion, the State averred that on June 11, 2019, a 

### bill of indictment was filed against Mr. Strain, charging him with felony charges

2such as first degree rape,' aggravated crime against nature,' indecent behavior with

juveniles, 

## and sexualbattery.4 The matterwasatthetimepending inthe 22°dJDC under docket number 0703-F-2019, and the State requested that the instant 

### litigation and related discovery be stayed since it was directly related to the pending criminal proceeding.' 

### Mr. Strain filed on October 4, 2021 a motion to remove an improperly filed las pendens. 

### The lispendens to which Mr.Strain referred was filed by Mr. Finn on May 20, 

### 2020 in the Parish of St. Tammany against several properties that Mr. Strain owned. Mr. Strain argued that the lis pendens was improper because the 

### properties itencumbered had no relation tothe instant lawsuit filed by Mr.Finn. 

### Following atrial byjury,Mr. Strain was found guilty on November 8, 2021 of four counts of first degree rape, two counts of aggravated crime against nature, 

### one count of indecent behavior with juveniles, and one count of sexual battery. Mr. Finn was the victim on one ofthe counts of first degree rape. On November 19, 2021, 

### Mr. Finn filed exceptions raising the objections of unauthorized use of 

### summary proceeding and nonjoinder of an indispensable party. Mr. Finn argued that Mr. Strain could not seek to dismiss the lis pendens through the summary proceeding he requested in his motion, andthat awrit ofmandamus wasthe proper proceeding. 

### Further, the writ ofmandamus would make the St. Tammany Parish 

### Clerk of Court an indispensable party, and the Clerk was never brought into the lawsuit by any pleading filed by Mr. Finn or Mr. Strain. Also on November 19,

In the motion, the State referred to first degree rape as " aggravated rape." Effective August 1, 2015, the offense ofaggravated rape has been restyled as first degree rape, with either referring to the same offense. La. R.S. 14:42(E), 2015 La. Acts 256. 2 In the motion,the State referred to aggravated crime against nature as " aggravated incest." The aggravated incest" statute was repealed, effective June 12, 2014, and its elements incorporated into La. R.S. 14:89. 1( A). 2014 Acts 602. 3 See La.R.S. 14:81, 4 See La. R.S. 14:43. 1. 

### s The staywas lifted bythetrial court in aseparate orderonJanuary 19, 2021. 32021, 

### Mr. Finn filed a motion for partial summaryjudgment on the issue of Mr.

Strain's liability. On March 9, 2022, Mr. 

### Strain filed a peremptory exception raising the objection of prescription. He argued that the torts Mr. Finn alleged Mr. Strain 

### committed occurred from the seventies until the early eighties, and atthattime, the one-year prescriptive period of La. C.C. art. 3492 applied. He further argued that 2021 La. Acts 322,6 which became effective June 14, 2021 and revived certain 

### claims involving sexual abuse ofminors,did notapplyto Mr.Finn's claim because it only revived claims that were barred by the liberative prescription of La. R.S. 9:2800.9, not La. C.C. 3492. Furthermore, Mr. Strain argued that Act 322 does not 

### apply to pending litigation, and alternatively, if it were found that Act 322 did apply to Mr.Finn's claim,the Actwas unconstitutional. In opposition to Mr. Strain' s exception, Mr. Finn relied on the language of La. R.S. 9:2800.9, as it was amended on June 14, 2021: " An action against a person for sexual abuse of a minor ... does not prescribe." ( Emphasis added) Mr. 

### Finn argued pursuant to the plain meaning ofthe words in the statute, any action against a person for sexual abuse ofa minor, regardless ofwhen the abuse occurred

or what prescriptive period applied at the time, does not prescribe. In the alternative, Mr. Finn argued that the doctrine of contra non-valentum applied, as 

### Mr. Strain's positions of authority and intimidation methods prevented Mr. Finn from timely filing suit. 

### The motion to remove the lis pendens and the peremptory exception of 

### prescription filed by Mr.Strain, and the motion forpartial summaryjudgment filed
6 2021 La. Acts 322 amended La. R.S. 9:2800.9 so that tort actions for sexual or physical abuse ofaminordid not prescribe. It also revived foraperiod ofthree years from its effective date any such actionthat had previously prescribed under La. R.S. 9:2800.9. Louisiana Revised Statutes, 9:2800.9 was originally enacted in 1993. The prescriptive period 

### provided bythe statute priorto its revision on June 14, 2021, was ten years from the datethe claimant reached the age of majority. 4

### by Mr.Finnwere heard on April 20, 2022. In ajudgment signed on May 24, 2022,

the district court sustained the peremptory exception and the granted motion to remove the lis pendens, 

### dismissing Mr. Finn's claims against Mr. Strain with 

### prejudice and ordering the St. Tammany Parish Clerk ofCourtto cancel the notice 

### of lispendens filed by Mr. Finn against Mr. Strain's immovable property. Based on these rulings, the district court found the motion for partial summaryjudgment to be moot. In its written reasons, the district court stated that since the abuse occurred before La. R.S. 9:2800.9 was enacted, the one-year prescriptive period of La. C.C. 3492 applied. 

### The district court also found that Act 322 did not applyto pending litigation, since the act specifically permitted a party " to file an action." The district court also found that the doctrine of contra non-valentem did not 

### apply, as Mr.Finn nevermade anyattemptto seeklegal assistance to file suitprior to filing the instant petition. Lastly, the district court found that the lis pendens was improperly filed, since actions involving sexual abuse of a minor do not 

### involve immovable property. Mr. Finn has appealed thisjudgment. ASSIGNMENTS OF ERROR Mr. Finn assigns as error: 1. The district court' s interpretation of La. R.S. 9:2900.9(A)(2), in that the present revision of the statute did not revive Mr. Finn's claims against Mr. Strain. 2. 

### The district court's failure to apply contra non-valentem to the instant case, when Mr. Finn first sought treatment in 2019 for post

### traumatic stress disorder related to the abuse, thereby commencing the prescriptive period in 2019. 3. The district court' s order to remove the notice of lis pendens from 

### the St. Tammany Parish conveyance records, as well as the district 

### court's failure tojoin the St. Tammany Parish Clerk ofCourt as an indispensable party.

5DISCUSSION



### The Louisiana Supreme Court has recently handed down its opinion on the 

### case T.S. v. Congregation ofHoly Cross Southern Province, Inc. and Holy Cross College, Inc., 2022-01826 (La. 6/27123), So.3d , 2023 VEL 4195778. The 

### facts ofHoly Cross are strikingly similarto the facts ofthe instant case, and Holy Cross addresses the same prescription issue. 

### In Holy Cross, the plaintiffbrought claims against the defendant in Orleans Civil District Court for negligent hiring 

### and supervision and vicarious liability, alleging he had been sexually abused by
one of the school' s teachers over 55 years earlier, when the plaintiff was eleven

years old. The plaintiff relied on Act 322 as the basis for the timeliness of his lawsuit. 

### The defendant filed a peremptory exception raising the objection of prescription. 

### The district court sustained the exception, holding that Act 322 was

unconstitutional. 

### Holy Cross, * 1- 2. 

### The plaintiffappealed directlyto the supreme court. Although the supreme court agreed that the plaintiffs claim had prescribed, it disagreed with the district 

### court's constitutional basis for sustaining the exception. Instead, the supreme court 

### found thatthe claim had prescribed on statutory, non - constitutional grounds. Holy Cross, * 3. 

### In so doing, the supreme court relied on Burmaster v. Plaquemines Parish Government, 2007-2432 ( La. 5/21/ 08), 982 So.2d 795, 802-03, which states, " 

### courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the 

### constitutional issue is essential tothe decision ofthe case or controversy." The supreme court concluded that the constitutionality of Act 322 did not have to be addressed since the Act did not express a clear intent to revive prescribed sexual abuse claims that occurred prior to 1993. 

### Holy Cross, * 3. The 

### supreme court noted that Act 322 specifically addressed prescribed sexual abuse 11 See La. Const. art. V, §5( D)( 1).

### claims under La. R.S. 9:2800.9, which was enacted in 1993. Since the plaintiff's



### cause of action arose a considerable time before the enactment of La. R.S. 

## 9:2800.91 itprescribed undertheone-yearliberativeprescriptive period ofLa.C.C. art. 3492, which was applicable at that time.' 

### Holy Cross, * 4. 

### While the supreme court recognized that 2022 La.Acts 386, which became effective on June 10, 2022, ostensibly revived any cause ofaction related to sexual 

## abuse of a minor under any Louisiana prescriptive period,'O the supreme court noted that the plaintiffs action was filed prior to Act 386' s enactment, and that the plaintiffmade a constitutional argument under Act 322, not Act 386. The supreme court therefore found that a constitutional argument under Act 386 was not before it. 

### Holy Cross, * 4-5. 

### Shifting to non -

constitutional grounds, the supreme court found that the plaintiff's claim had prescribed on its face, and that the plaintiff had not satisfied 

### his burden ofproving the claim had not prescribed. See Hogg v. Chevron USA, Inc., 2009-2632 ( La. 716110), 45 So.3d 998. Therefore, since the plaintiff had not filed suit within one year of the alleged abuse, his claim was prescribed. 

### Holy Cross, * 5. 

### The plaintiff in Holy Cross also claimed that prescription was suspended under the doctrine of contra non-valentem, 

### because he was prevented by the 

### defendant from availing himself of his cause of action, and because the plaintiff was not aware ofhis cause ofaction for a considerable amount oftime. See Carter

v. Haygood, 2004-0646 ( La. 1119105), 892 So.2d 1.261, 1286. The plaintiff 9 Louisiana Civil Code art. 3492 states, in pertinent part: " Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained." YD 2022 La.Acts 386, § 2 states: Any person whose cause ofaction related to sexual abuse ofa minor was barred by liberative prescription shall be permitted to file an action under R.S. 9:2800.9 on or before June 14, 2024. It is the express intent of the legislature to revive until June 14, 2024, any cause of action related to sexual abuse ofa minor that previously prescribed underany Louisiana prescriptive period. 7

### claimed he did not realize he had a cause ofaction until 2021, when he learned of



### the disclosures of other victims of his abuser. Holy Cross, * 6. The district court 

### found contra non-valentem did not apply to the plaintiff's claim because the 

### plaintiffhad actually expressed awareness and understanding ofhis claim as early as 1982 and as late as 2008, when the plaintiffwas no longer a minor. 

### Holy Cross, 5. 

### The supreme court in Holy Cross vacated that part of the district court's judgment pertaining to the constitutionality ofAct 322, but affirmed thejudgment in all other respects. The supreme court also remanded the matter pursuant to La. C.C.P. art 934, to allow the plaintiffto amend his petition. 

### Holy Cross, * 7. The issue in the instant case involves the interpretation of statutes. Thus, it is a question of law, 

### and reviewed by this court under a de nava standard of
review. 

### Broussard v. Hillcorp Energy Co., 2009-0449 ( La. 10120109), 24 So.3d 813, 815- 16. 

### We will also use the Holy Cross opinion as guidance on the issue of prescription. 

### We find the following dates are pertinent in deciding the prescription issue: Mr, Finn was abused by Mr, Strain from about 1975 to 1981, when La. C.C. art. 3492 provided the one-year prescriptive period for his claim. In 1993, La. R.S. 9:2800.9 was enacted. 

### In June of 2019, Mr. Strain was indicted for felony sex crimes, and in July ofthe same year, Mr. Finn was diagnosed with post-traumatic stress disorder. Mr. Finn filed suit against Mr. Strain in 2020. On June 14, 2021, Act 322 became effective and amended La. R.S, 9:2800.9, but it did not alter its prescriptive period.



### 1 ChiefJustice Weimer dissented in part, stating that the majority should have addressed the constitutionality ofAct 322. Justice Crain concurred in part and dissented in part, stating that the district court failed to address the constitutionality of Act 386, and it therefore could be dispositive ofthe merits of the defendant' s exception. He would have therefore remanded the case to the districtcourt forfurtherproceedings. Holy Cross, * 8. 9

### Aswiththe plaintiffin Holy Cross, Mr.Finn did notfile suitwithin ayearof

the abuse. 

### The sexual abuse Mr. Strain inflicted upon Mr. Finn purportedly ended around 1981, and Mr. Finn's claim would have prescribed around 1982, pursuant to La. C.C, art. 3492. Mr. Finn filed suit in 2020 priorto the enactment ofAct 322, 

### which revived claims involving sexual abuse ofminors that had prescribed under La. R.S. 9:2800.9. 

### Following the reasoning of Holy Cross, Mr. Finn's claim is prescribed on its face. Act 322 could not have revived his claim, because his claim prescribed under La. C.C. art. 3492 and not La. R.S. 9:2800.9. The text ofa law is the best evidence of legislative intent. La. R.S. 24: 177( B)( 1); Red Stick Studio 

### Development, L.L.C. v. State ex rel. Dept. ofEconomic Development, 2010-0193 La. 1119111), 56 So.3d 181, 185, n. 7. Therefore, we will not extend Act 322 to actions that prescribed prior to the enactment of La. R.S. 9:2800.9, since the words ofAct 322 do not provide for such. Mr. Finn' s claim is prescribed on its face, and he has not provided sufficient proof to refute that it has so prescribed. This 

### conclusion is also consistent with the Holy Cross opinion. 

### Mr. Finn further argues that, according to the equitable doctrine of contra non-valentem, the prescriptive period should be suspended, so that his filing the instant lawsuit in 2020 would be considered timely. Mr. Finn bases this argument

on three points: that, before and while Mr. Strain was an Abita Springs police officer, Abita Springs Chief of Police from 1985 to 1995, 

### and then St. Tammany Parish Sheriff from 1996 to 2016, Mr. Strain was able to use his power and 

### authority to intimidate and prevent Mr. Finn from pursuing legal action; that, until Mr. Strain was indicted in June of 2019, he was still a powerful figure in St. 

### Tammany Parish, 

### and Mr. Finn was fearful of any repercussions that would be 

### brought against him or his family as a result offiling suit; and that, until Mr. Finn was diagnosed with post-traumatic stress disorder in July of2019, he did not fully realize or understand that he had a cause ofaction against Mr. Strain. Z

### Contra non-valentem non currit praescriptio means that prescription does

not run against a person who could not bring his suit. Wells v. Zadeck, 2011- 1232 La. 3130112), 89 So.3d 1145, 1150. 

### Louisianajurisprudence has long recognized the doctrine ofcontra non-valentem as a means of suspending the running of 

### prescription when the circumstances of a case fall within one of four categories. Those categories are: ( 1) where there was some legal cause which prevented the 

### courts ortheir officers from taking cognizance oforacting on the plaintiffs action; 2) where there was some condition coupled with the contract or connected with 

### the proceedings which prevented the creditor from suing or acting; ( 3) where the 

### debtor himself has done some act effectually to prevent the creditor from 

### availing himself of his cause of action; and ( 4) where the cause of action is not 

### known or reasonably knowable by the plaintiff,even though this ignorance is not induced bythe defendant. Id. The third and fourth categories are applicable to the instant case. 

### Mr. Finn does not argue that he was never aware that Mr. Strain sexually abused him until liberative prescription had run. Rather, Mr. Finn' s argument indicates he was aware ofthe abuse, since he states that Mr. Strain' s positions of 

### authority prevented him frorn seeking legal action. Mr. Strain was employed by the Abita Springs Police Department from 1985 to 1995. 

### Assuming Mr. Strain 

### could have indeed prevented Mr.Finn from filing suit, Mr.Strain'sjurisdiction and authority at that time was only within the city ofAbita Springs. Mr. Finn could 

### have sought legal advice and filed suit within the parish of St. Tammany but outside the city ofAbita Springs during that time. Therefore, whatever abilities Mr. 

### Strain may have had to prevent Mr. Finn from filing suit would not have extended beyond the city limits of Abita Springs until 1996, when Mr. Strain 

### became the Sheriff of St. Tammany Parish, at which time the action would have

10already prescribed. 

### Therefore, the doctrine ofcontra non-valentem would be ofno

benefit to Mr. Finn. 

### Additionally,we notethe provision in La. C.C.P. art. 934," which mandates 

### an amendment to the petition when the grounds of the objection pleaded by the 

### exception may be removed by amendment. We therefore reverse that portion of 

### thejudgment dismissing Mr. Finn's claims with prejudice; we remand this case to 

### the district court to allow Mr. Finn, within a delay deemed reasonable by the district court, to amend his petition to remove the grounds of the objection, if possible. 

### See Holy Cross, * 

### 7; see also Painterv. Clouatre, 2021- 1462 (La.App. 1 Cir.6/ 16/22), 343 So.3d 771, 776. 

### Since we affirm the trial court's sustaining of the peremptory exception 

### raising the objection ofprescription, we pretermit discussion on the notice of lis 

### pendens issue atthis time, pending any forthcoming amendmentto the petition by Mr. Finn. DECREE 

### Thejudgment ofthe Twenty - Second Judicial District Court,signed May 24, 2022, is affirmed in part and reversed in part. The matter is remanded pursuant to La. C.C.P. art. 934. All costs of this appeal are assessed to the appellant, Mark John Finn. AFFIRMED IN PART, REVERSED IN PART; REMANDED PURSUANT T4 LA. C.C.P. ART. 934.

Louisiana Code of Civil Procedure, article 934 states, in relevant part: " When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the 

### petition, the judgment sustaining the exception shall order such amendment within the delay allowed bythe court." 11STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2022 CA 0998
MARK JOHN FINN VERSUS RODNEY "JACK" STRAIN, JR.

McClendon, 3., concurs. I am constrained to agree with the result reached by the majority based on the 

### decision of the Louisiana Supreme Court in T.S. v. Congregation of Holy Cross Southern Province, Inc. and Holy Cross College, Inc., 2422-01826 ( La. 6/27/23), So.3d , 2023 WL 4195778.