Akesha Allen v. Dryades YMCA School of Commerce, Inc. d/b/a West St. Tammany YMCA & ABC Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

AKESHA ALLEN NO. 2021 CW 0358
VERSUS PAGE 1 OF 2
DRYADES YMCA SCHOOL OF
COMMERCE, INC. D/ B/ A WEST
ST. TAMMANY YMCA & ABC JUNE 3, 2021
INSURANCE COMPANY

In Re: The Young Men' s Christian Association of Greater New
Orleans, Louisiana d/ b/ a West St. Tammany YMCA, aka

YMCA of Greater New Orleans, applying for supervisory
writs, 22nd Judicial District Court, Parish of St.

Tammany, No. 201811919.

BEFORE: GUIDRY, MCDONALD, HOLDRIDGE, PENZATO AND LANIER, JJ.

WRIT GRANTED. The trial court erred by denying the
exception of prescription filed by The Young Men' s Christian
Association of Greater New Orleans, d/ b/ a West St. Tammany YMCA,
a/ k/ a YMCA of Greater New Orleans. The plaintiff' s amended

petition adding YMCA of Greater New Orleans as a defendant was

filed more than two months after the prescriptive period

expired. No reasonable interpretation of the original or

amended petition supports the plaintiff' s assertion that YMCA of
Greater New Orleans was named as an original defendant and that

the amended petition was filed simply to correct a typographical
error or misnomer. It is apparent that the plaintiff was not

merely trying to correct the name of the defendant; instead, she

attempted to entirely change identity of the defendant.
the See
Micken v. DHC OPCO- Napoleonville, LLC, 2018- 0140 ( La. App. 1st
Cir. 11/ 2/ 18), 2018 WL 5732482, * 3( unpublished). We find the
trial court erred by concluding otherwise. Because the amended

petition was prescribed on its face, the plaintiff bore the
burden of proving the action is not prescribed. Id; See also

Renfroe v. State ex rel. Department of Transportation &
Development, 2001- 1646 ( La. 2/ 26/ 02), 809 So. 2d 947, 950,
recognizing that if the timely sued defendant is found not

liable, suit against it does not interrupt prescription against

other defendants not
timely sued. La. Civ. Code art. 2324( C).
The evidence establishes that no identity of interest exists

between YMCA of Greater New Orleans and the original, timely -
sued defendant; therefore, the plaintiff failed to show the
criteria set forth in Ray v. Alexandria Mall, 434 So. 2d 1083
La. 1983) are satisfied such that the amended petition relates

back to the date the original petition was filed per La. Code
Civ. P. art. 1153. Notably, too, the plaintiff asserts that
relation back does not apply. She likewise does not rely on

contra non valentum to assert that the prescriptive period has
not expired. Thus, the trial court' s March 11, 2021 judgment is
reversed, and the exception of prescription filed by The Young
Men' s Christian Association of Greater New Orleans, d/ b/ a West
St. Tammany YMCA, a/ k/ a YMCA of Greater New Orleans is granted.
Since the grounds for the exception of prescription cannot be

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

NO. 2021 CW 0358
PAGE 2 OF 2

removed through amendment, opportunity to amend is not

warranted, and the plaintiff' s suit is dismissed with prejudice.
See La. Code Civ. P. art. 934.

JMM

AHP
WIL

Guidry and HQldridge, JJ., dissent and would deny the

writ. The following criteria are relied upon to determine
whether La. Code Civ. P. article 1153 allows an amendment which

changes the identity of the defendant to relate back to the date
of filing of the original petition: ( 1) the amended claim must

arise out of the same transaction or occurrence set forth in the
original pleading; ( 2) the purported substitute defendant must

have received notice of the institution of the action such that
he will not be prejudiced in
maintaining a defense on the
merits; ( 3) the purported substitute defendant must know or

should have known that but for a mistake concerning the identity
of the proper party defendant, the action would have been
brought against him; and ( 4) the purported substitute defendant
must not be a wholly new or unrelated defendant. Ray v.

Alexandria Mall, 434 So. 2d 1083 ( La. 1983). Although West St.

Tammany YMCA was included in the
original petition as a d/ b/ a of
an incorrect defendant, Dryades
we believe a key factor is YMCA,
the inclusion of West St. Tammany YMCA in the original petition.
The argument made by the defendant that West St. Tammany YMCA is
just a trade name and not a separate legal entity capable of

being sued is the exact argument made in Ray. The original

defendant named in Ray was Alexandria Mall, which was not a

legal entity capable being of Tammany sued similar to West St.
YMCA. The new named defendant is not wholly new or unrelated but
is represented by the same attorney as the original defendant.
Also, just like in Ray, the defendant " waited silently" before
filing its exception raising the objection of prescription. Ray,
434 So. 2d at 1087. Furthermore, the defendant can show no

prejudice whatsoever by the amended petition. " The express

purpose of arts. 934 and 1153 is to allow amendment of the
petition to remove the grounds for the peremptory exception

whenever possible and where dismissal of the suit should not be
in the interests of justice." Ray, 434 So. 2d at 1086.
Accordingly, we would find that the Ray factors have been met

herein and the trial court properly denied the exception of

prescription.

COURT OF APPEAL, FIRST CIRCUIT

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DEPUTY L K OF COURT
FOR THE COURT