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COURT OF APPEAL,

FIFTH CIRCUIT

HMS MAR 1 e 2009
VEESRSSUESC. BABIN NO. 08-CA-776

CHARLOTTE LEHRMANN BABIN, DIVORCED WIFE OF/AND GREG P. BABIN

COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 643-949, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING MARCH 10, 2009

MADELINE JASMINE
JUDGE PRO TEMPORE
Panel composed of Judges Edward A. Dufresne, Jr., Walter J. Rothschild, and Madeline Jasmine

TARCZA & ASSOCIATES, LLC ROBERT E. TARCZA CRAIG L. WILLIAMS Attorneys at Law 228 St. Charles Avenue Suite 1310 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT DON C. GARDNER Attorney at Law 6380 Jefferson Highway Harahan, LA 70123 COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

In this suit on two promissory notes, appellant Bessie C. Babin appeals the trial court's grant of an Exception of Prescription in favor of co-defendant Charlotte L. Babin. judgment. This is a suit on two promissory notes executed by co-defendant Gregory Babin, ex-husband of co-defendant Charlotte L. Babin, in favor of plaintiff (who is Gregory Babin's mother).' The first one is dated January 18, 1989, and is payable on demand. The second one is dated May 6, 1999, and is also payable on demand. Suit was filed on April 20, 2007. In order to take the notes from under the bar of prescription, plaintiff alleged in her original Petition that the notes had each been last "reinscribed" on August 1, 2005 and April 30, 2004, respectively. Defendant Charlotte Babin answered the Petition and later filed an
Exception of Prescription, arguing that the notes were prescribed on their faces and

For the following reasons, we affirm the trial court's

that the signatures on the notes, purporting to be "reinscriptions," fell short, under

* Charlotte Babin is not the maker of either promissory note; Gregory Babin made both notes while he and Charlotte were married. They have since divorced, according to pleadings.

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the law, of expressing the parties' intent to renew the notes and extend prescription. The trial court heard argument and took the matter under advisement,
rendering judgment in favor of Charlotte Babin on July 14, 2008, without giving

reasons. Plaintiff Bessie C. Babin filed this appeal.2 In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court's finding of fact was manifestly erroneous. Katz v. Allstate Ins. Co., 04-1133 (La. App. 4 Cir. 2/2/05), 917 So.2d 443. The standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes 'against prescription and in favor of the claim that is said to be extinguished. I_d. Liberative prescription on a promissory note is five years. LSA-C.C. art.
3498. Where a promissory note is payable on demand, prescription runs from the

date of the note and not from demand. LSA-C.C. art. 3498; Smith v. McKeller,

93-1944 (La. App. 1 Cir. 6/24/94), 638 So.2d 1192. Where a note is prescribed on
its face, the burden of proving that prescription has been interrupted rests upon the

creditor, and the proof must be clear, specific, and positive. Lake Providence
Equipment Company, Inc. v. Tallulah Production Credit Ass'n, 241 So.2d 506 (La.

1970). Acknowledgement of a debt or obligation interrupts prescription and erases the time that has accrued, with prescription commencing anew from the date of interruption. Smith v. McKeller, supra. The first promissory note, Exhibit A to the Petition, shows that it is dated January 18, 1989. Suit was filed in 2007; hence, the note is prescribed on its face. Plaintiff argued that prescription was interrupted by virtue of several
"reinscriptions." On the back of the note, there are four sets of signatures. (R @

3a) The topmost one says "Renewed April 13, 1993" and is signed by both plaintiff
2 This appeal concerns only co-defendant Charlotte L. Babin.

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and Gregory Babin, maker and co-defendant. Following that notation, there are three more signatures. Plaintiff and defendant Gregory Babin again both signed

the note sometime in 1997, and again in 2002 and 2005. The word "renewed" only appears with the 1993 signatures.3 The second note, Exhibit B to the Petition, shows that it is dated May 6, 1999. It is also prescribed on its face. On the front of this note, directly under their original signatures, plaintiff and Gregory Babin have signed the note again

with the date April 30, 2004.
Defendant argued to the trial court that these signatures did not clearly, specifically, or positively evidence the signatories' intent to extend prescription,
and that the mere signing and dating on the back or bottom of the instrument does

not infer the acknowledgment or interruption of prescription on the notes. The trial judge apparently agreed with defendant's arguments, and granted her Exception of
Prescription.

We see no abuse of discretion or error in this ruling. We find as a matter of law that the signatures on the back of the first note, and the signatures on the bottom of the second note, do not clearly, positively, and unequivocally express the intent to acknowledge or interrupt prescription. judgment of the trial court. Accordingly, we affirm the

AFFIRMED

* The original note is not notarized, nor are the four sets of signatures.

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EDWARD A. DUFRESNE, JR. CHIEF JUDGE MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD FREDERICKA H. WICKER

PETER J. FITZGERALD, JR. CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK MARY E. LEGNON FIRST DEPUTY CLERK

JUDGES

FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054
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NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY MARCH A R TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

08-CA-776
DON C. GARDNER ATTORNEY AT LAW 6380 JEFFERSON HIGHWAY HARAHAN, LA 70123 CRAIG L. WILLIAMS ROBERT E. TARCZA ATTORNEYS AT LAW 228 ST. CHARLES AVENUE SUITE 1310 NEW ORLEANS, LA 70130



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