
    Michael LABICHE v. LOUISIANA PATIENTS’ COMPENSATION FUND OVERSIGHT BOARD, et al.
    No. 96 CA 1310.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1997.
    Dissenting Opinion of Judge Whipple May 15, 1997.
    Rehearing Denied Oct. 8, 1997.
    Byron Casey, III, New Orleans, for Plaintiff-Appellant Michael Labiche.
    
      Larry M. Roedel, Baton Rouge, for Defendant-Appellee Louisiana Patients’ Compensation Fund Oversight Board.
    Corinne Ann Morrison, Charles P. Blanchard, New Orleans, for Defendant-Appellee Louisiana Patients’ Compensation Fund.
    Before WHIPPLE and FITZSIMMONS, JJ., and TYSON, J. Pro Tem.
    
      
      . The Honorable Ralph Tyson, Judge, 19th Judicial District Court, is serving as judge pro tem-pore by special designation of the Louisiana Supreme Court.
    
   JgFITZSIMMONS, Judge.

Plaintiff, Michael Labiche, filed a petition for review of the final decision of defendant, the Louisiana Patients’ Compensation Fund Oversight Board (PCFOB), with the Nineteenth Judicial District Court. The trial court granted peremptory exceptions raising the objections of no cause .of action and res judicata filed by defendant, Louisiana Patients’ Compensation Fund (PCF). The trial court then rendered judgment dismissing Mr. Labiehe’s petition, with prejudice. Mr. Labiche appealed. PCF answered the appeal. On our own motion, we recognize the peremptory exception of peremption, and find that the petition for review was untimely. For this reason, we affirm the dismissal of Mr. Labiche’s petition for review and pre-termit any discussion of the exceptions granted by the trial court.

Mr. Labiche asserts that, as provided in La. C.C. art. 3462, prescriptive periods are interrupted by the timely filing in federal court and service on defendant. In an earlier proceeding between the parties, the federal court had approved the settlement agreement in a malpractice action that is the basis for the main dispute between the parties. Because the dispute decided by the final decision of the PCFOB arose out of the original case and settlement between Mr. Labiche and PCF in federal court, both parties had a basis to believe that the federal court had continuing jurisdiction. Mr. La-biche argues the injustice of holding the petition for review was untimely, when both counsel so erred.

In brief, PCF argues that the time limitation contained in La.R.S. 49:964 B is a per-emptive period, not subject to interruption or suspension. R.S. 49:964 B provides that the right of review, granted by section A, may be exercised by filing a petition in the appropriate district court “within thirty days after mailing of notice of the final decision....” PCFOB’s final' decision was signed May 4, 1995. The petition -for review |3was filed July 13, 1995. Therefore, the petition for review, filed seventy days after the PCFOB’s final decision, was untimely.

“Peremption is a period of time fixed by law for the existence of á right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La. C.C. art. 3458. Peremption is not subject to renunciation, interruption, or suspension. La. C.C. art. 3461. Unlike prescription, peremption can be pleaded, or recognized by a court, on its own motion. La. C.C. art. 3460.

It can be difficult to distinguish a prescriptive period from a peremptive one. The determination must be made on a case by case basis. La. C.C. art. 3458, comment (c). If the intent of the time limit rule is to bar enforcement of a substantive right or cause of action, it is prescriptive; if the intent is to limit the, existence, the duration of the right granted, it is peremptive. La. C.C. art. 3458, comment (c); State in the Interest of Taylor, 637 So.2d 512, 514 (La. App. 1st Cir.1993). Evidence of legislative intent to create a peremptive period is the legislature’s placement of the time limitation in the statute creating the right. Schulin v. Service Painting Co. of Louisiana, 479 So.2d 939, 944 (La.App. 1st Cir.1985), writ denied, 481 So.2d 634 (La.1986).

La. R.S. 49:964 A and B are similar to La. R.S. 15:1177, reviewed and interpreted by this court in Carter v. Lynn, 93-1583 (La.App. 1st Cir. 5/20/94); 637 So.2d 690. Both statutes created a right of review to the district court, and, within the same statute, limited the existence of the right to thirty days after a triggering event. The legislative intent of these provisions was to create a right of judicial review for a limited duration. See Carter, 93-1583 at p. 2; 637 So.2d at 691; Schulin, 479 So.2d |4at 944. Thus, we find that the time limitation in La.R.S. 49:964 B is a peremptive period. Unfortunately, and we believe without negligence, the peremptive period lapsed. The right of review was extinguished before the petition was filed in the proper court. The peremptive period cannot be suspended or interrupted by the filing in federal court or by the assertion that both parties thought that federal court had jurisdiction over the final decision of the PCFOB. See La. C.C. art. 3461.

For these reasons, we find that Mr. La-biche’s petition for review to the Nineteenth Judicial District Court was untimely. . The peremptory exception raising the objection of peremption is recognized by this court. We affirm the district court’s dismissal of Mr. Labiche’s petition for review, with prejudice. The costs of the appeal are assessed to the plaintiff, Michael Labiche.

AFFIRMED.

WHIPPLE, J., dissents with assigned reasons.

IxWHIPPLE, Judge,

dissenting.

While the majority correctly notes that this court may notice and raise the issue of peremption on its own motion, I do not believe it is appropriate, given the posture of this case, for us to do so. Instead, I would address the merits of the issues before us and alternatively, would remand the matter to the trial court for briefing and argument on the peremption issue and to allow the lower court to rule on the issue. In particular, relying upon the “bright line” peremption statement set forth in Carter v. Lynn, 93-1583 (La.App. 1st Cir. 5/20/94); 637 So.2d 690 may be less than sound considering other applicable jurisprudence. Because the majority relies heavily upon Carter v. Lynn by analogy, and because I am not convinced that we should supply the peremption argument and use this as a basis for pretermitting the merits of the issues which have been briefed, I must dissent.

Here, a medical malpractice claim was originally filed in federal district court which was dismissed pursuant to a judgment approving a settlement among the parties. Subsequently, appellant herein made a claim with the PCF for payment of custodial care services, which claim was ultimately denied in part and granted in part by the PCFOB. Appellant first filed a petition for review of the PCFOB’s decision in federal court, which petition was dismissed for lack of subject matter jurisdiction. Appellant subsequently filed a second petition for review in the 19th JDC, which petition was ultimately dismissed and comprises the basis of this appeal. Applying Carter v. Lynn by analogy, the majority ^“recognizes” the exception of peremption and affirms the dismissal of the petition for review.'

With respect to the particular statute at issue in Carter, ie., LSA-R.S. 15:1177(A), and referred to by analogy as providing support for the majority opinion herein, there is some doubt as to whether the Carter rationale and its “bright line” peremption statement would apply to tort claims, habeas corpus claims, and other causes of action which existed independent from and arguably were not created by, the enactment of administrative remedies procedures for correctional institutions (even with respect to claims which are factually based upon or related to events occurring during confinement.) See Green v. State, 96-0781 (La.App. 1st Cir. 5/9/97); 693 So.2d 1317.

Also, it is noteworthy that on the same day Carter was handed down, another panel of this court, citing the U.S. Supreme Court’s decision in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), held in Tatum v. Lynn, 93-1559 (La.App. 1st Cir. 5/20/94); 637 So.2d 796, that an inmate’s petition for judicial review deposited with prison authorities, but received by mail for filing outside the statutory thirty day filing date was timely. While the Louisiana Supreme Court has not squarely addressed the issue of whether the thirty day period under the Corrections Administrative Remedy Procedure is peremptive or prescriptive, the Court has referred to both Tatum and Carter. See State ex rel. Johnson v. Whitley, 92-2689 (La.1/6/95); 648 So.2d 909 (Tatum cited and the district court ordered to hold a hearing concerning delivery to prison officials to determine timeliness of a post-conviction relief application); State ex rel. Gray v. State, 94-1002 (La.6/30/95); 657 So.2d 1005 (Tatum cited and district court ordered to consider merits of application deemed timely filed); and Marler v. Petty, 94-1851 (La.4/10/95); 653 So.2d 1167 (where the Supreme |3Court, while noting that this court had not applied Carter and had not affirmed dismissal on grounds of peremption, did not address the issue of peremption versus prescription because it had not been raised below). Instead, the Supreme Court indicated that “[cjonsidering the state of the present record,” on remand the trial court should consider this issue if it were raised. Marler v. Petty, 94-1851 at p. 7, n. 5; 653 So.2d at 1171.

Thus, given the procedural posture of this case, and absent further guidance from the Louisiana Supreme Court, I respectfully dissent from the majority’s dismissal based on this court’s ex proprio mota; furnishing of the peremption exception, and would instead decide the case on the merits of those issues presently and appropriately before us, ie., the propriety of the trial court’s grant of the PCF’s exceptions raising the objections of no cause of action and res judicata. Alternatively, this matter should have been remanded for development of the record and briefing on the issue of peremption. See Marler v. Petty, 94-1851 at p. 7, n. 5; 653 So.2d at 1171. 
      
      . Both parties use May 4, 1995 as the date to begin calculation. Mr. Labiche does not allege that the final decision was received or that he was notified any later than May 4.
     
      
      . If La.R.S. 49:964 B was a prescriptive period, the filing in federal court would have interrupted prescription.
     
      
      . An extensive recitation and thoughtful discussion of the developing jurisprudence and seeming inconsistencies on the peremption versus prescription issue and the thirty day filing period of LSA-R.S. 15:1177(A) is contained in Shelton v. Louisiana Department of Corrections, 96-0348, pp. 5-6 (La.App. 1st Cir. 2/14/97); 691 So.2d 159; 162-163. Much of the discussion above is derived with thanks and appreciation from the author’s detailed survey of the jurisprudence contained therein.
     