Anders Productions, Inc. v. Stream Farms, Inc.

YELYERTON, Judge. Stream Farms, Inc., made a promissory note to Anders Productions, Inc., dated February 1, 1979, for $87,500 with interest, payable on demand. On December 12, 1979, Stream Farms made a partial payment of $50,000 and interest. No further payments were made and on December 11, 1984, Anders Productions filed suit for the balance. Stream Farms answered admitting the note but denying the remaining allegations, and filed an exception of prescription. Anders Productions filed a motion for summary judgment. The plaintiff produced summary judgment evidence proving the note, the payment, and the balance due of $37,500 plus interest. The defendant made no response to the summary judgment motion. Actions on promissory notes are subject to a liberative prescription of five years. La.Civil Code article 3498. Payment on a note interrupts prescription; consequently, prescription does not accrue until the lapse of five years thereon. La. Civil Code article 3464 (then 3520); Gulf Shipping Co. v. McQuilling, 430 So.2d 1322 (La.App. 5th Cir.1983). Finding the action not prescribed, finding no genuine issue of material fact, and finding plaintiff entitled to a judgment as a matter of law, the trial court, pursuant to La.C.C.P. arts. 966 and 967, gave plaintiff judgment for the balance due. Defendant appealed. On appeal Stream Farms argues in brief a defense not presented in the trial court. Even if we could formally consider it, we would not find it to be a valid defense. There is no merit to the appeal and we affirm the judgment. In its brief, Anders Productions asks for us to label this appeal frivolous and award damages. Anders Productions did not answer the appeal to ask for this relief, and we cannot consider it. La.C.C.P. art. 2133. Stream Farms, Inc., will pay all costs. AFFIRMED.