This is an appeal by defendant from a judgment in favor of plaintiffs and against defendant. On appeal, defendant has filed a peremptory exception raising the objection of prescription. For the following reasons, we remand to the trial court for a determination of the issue of prescription.
On July 15, 1986, plaintiffs, Eddie and Monica Blanchard,
Subsequently, on October 27, 1987, plaintiffs filed a supplemental and amending petition. In their supplemental and amending petition, plaintiffs added Missouri Pacific Railroad Company (Missouri Pacific) as a defendant, alleging that "the railroad track was owned and maintained by the defendant Southern Pacific Transportation Company and/or Missouri Pacific Railroad Company," and praying for "judgment in favor of [plaintiffs] and against the defendants[,] State of Louisiana, Department of Transportation and Development, Southern Pacific Transportation Company, and the Missouri Pacific Railroad Company, jointly, severally and in solido."
Thereafter, Southern Pacific filed a motion for summary judgment, averring that it had no legal responsibility to maintain the railroad track in question because it was not the owner of the track, nor had it ever operated or maintained the track, and that, accordingly, it was entitled to judgment in its favor as a matter of law. In support of its motion for summary judgment, Southern Pacific filed the affidavit of L.J. Armentor, district manager of the real estate department of Southern Pacific. In his affidavit, Armentor stated that Southern Pacific had never owned, operated or maintained the railroad track crossing Highway 1007 at the accident location, nor did it possess, by ownership or otherwise, a right-of-way across Highway 1007 at the accident location. By judgment dated May 31, 1988, the trial court granted Southern Pacific's motion for summary judgment, dismissing plaintiffs' action against this defendant.
Prior to trial of this matter, plaintiffs settled their claims against DOTD, and proceeded to trial on November 3, 1992, against Missouri Pacific only.
On July 12, 1993, Missouri Pacific filed a peremptory exception raising the objection of prescription in this Court pursuant to LSA-C.C.P. art. 2163. Missouri Pacific alleges that because DOTD was found to be free of fault, Missouri Pacific and DOTD were not joint tortfeasors and, thus, were not solidarily liable. Therefore, Missouri Pacific argues, the filing of suit against DOTD did not interrupt prescription as to Missouri Pacific. Missouri Pacific was not added as a defendant until more than one year after the accident took place.
On July 22, 1993, plaintiffs filed a motion to remand, seeking to have this matter remanded to the trial court for consideration of the exception of prescription.
A peremptory exception raising the objection of prescription may be raised for the first time in the appellate court. LSA-C.C.P. art. 2163; Genina Marine Services, Inc. v. Arco Oil & Gas Company, 499 So.2d 257, 259 (La.App. 1st Cir.1986). Louisiana Code of Civil Procedure article 2163 provides as follows:
Therefore, in accordance with the provisions of LSA-C.C.P. art. 2163, we remand this matter to the trial court for the sole purpose of consideration of Missouri Pacific's exception of prescription, in light of the jury's determination of no fault on the part of the Department of Transportation and Development.
For the foregoing reasons, this matter is remanded to the trial court for adjudication of Missouri Pacific's peremptory exception raising the objection of prescription.
Assessment of costs shall await final disposition of this matter.