Maisha Harrell-Bijou, Sandra Harrell, Brian Harrell, and Madison Harrell v. Michael P. Guarino, AAA Cooper Transportation, Inc., and Ace American Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

D1 r' t' FIRST CIRCUIT

NO. 2023 CA 0425

MAISHA HARRELL-BIJOU, SANDRA HARRELL, BRIAN HARRELL,
AND MADISON HARRELL

VERSUS

MICHAEL P. GUARINO, AAA COOPER TRANSPORTATION, INC.,
AND ACE AMERICAN INSURANCE COMPANY

Judgment Rendered. NOV 16 2023

Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 2021- 14925, Division D

The Honorable John A. Keller, Judge Presiding

Jeremy J. Pichon Counsel for Plaintiffs/Appellants
New Orleans, Louisiana Maisha Harrell -Bijou, Sandra
Harrell, Brian Harrell, and
Madison Harrell

Michael R. Sistrunk Counsel for Defendants/Appellees
Reed S. Minkin Michael P. Guarino, AAA Cooper
Covington, Louisiana Transportation, Inc. and Ace
American Insurance Company

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

zeò,

THERIOT, J.

In this suit for damages arising out of an automobile accident, the plaintiffs

appeal two trial court judgments dismissing their claims as prescribed, For the

reasons set forth herein, we vacate the July 25, 2022 judgment, amend the April

19, 2022 judgment, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

The automobile accident at issue in this matter occurred on May 7, 2020,

when a vehicle owned by Brian Harrell, driven by Maisha Harrell B
- ijou, and

occupied by Sandra Harrell and Madison Harrell ( collectively " plaintiffs"), was

involved in a collision while traveling northbound on Highway 25 in St. Tammany

Parish. Plaintiffs allege that the accident was the end result of an aggressive road

rage battle between two southbound truck drivers, Floyd Dillon and Michael

Guarino. According to plaintiffs' petition, Dillon and Guarino had been engaged

in a road rage battle for many miles, in which they sped up and slowed down,

cutting each other off, passing in front of each other continually, and refusing to let

each other safely pass. As Dillon attempted to merge back into the southbound

lane after passing Guarino' s truck, Guarino' s truck struck the rear of Dillon' s

track, causing Dillon' s truck to spin out of control, enter the northbound lane, and

strike the plaintiffs' vehicle.

On May 6, 2021, plaintiffs filed a suit for damages arising from the accident

in the United States District Court, Eastern District of Louisiana (" the federal suit")

against Guarino, his employer, AAA Cooper Transportation, Inc., and Ace

American Insurance Company, alleging diversity of citizenship as the basis for

jurisdiction. AAA Cooper Transportation and Ace American Insurance Company

were each served with the federal suit on May 17, 2021. There is no allegation that

Guarino was ever served with the federal suit. The federal suit was subsequently

dismissed on October 18, 2021 for lack of subject matter jurisdiction.

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Following the dismissal of the federal suit, plaintiffs filed this suit against

Guarino, AAA Cooper Transportation, and Ace American Insurance in the 22 ad

Judicial District Court on November 17, 2021. Guarino filed a peremptory

exception seeking dismissal of plaintiffs' claims against him on the grounds of

prescription and failure to state a cause of action.' AAA Cooper Transportation

and Ace American Insurance did not file exceptions or answers or make

appearances in the instant suit.

A hearing was held on Guarino' s exceptions on March 24, 2022, at the

conclusion of which the trial court found that plaintiffs' state court claims were

prescribed. The trial court signed a judgment on April 19, 2022, sustaining

Guarino' s exception of prescription and ordering that " the above captioned matter

be and hereby is dismissed with prejudice."' Plaintiffs filed a notice of intent to

apply for supervisory writs on April 25, 2022. The trial court originally set the

return date for May 27, 2022, but following plaintiffs' request for an extension due

to a delay in preparation of the transcript, the trial court extended the return date

until June 27, 2022, and ordered that " all proceedings are stayed until that date or

until the First Circuit Court of Appeal has ruled on Plaintiffs' application,

whichever is later."

Following the filing of plaintiffs' writ application with this Court, but before

any ruling on the plaintiffs' writ application, Guarino filed a motion in the trial

court on July 14, 2022, seeking to amend the April 19, 2022 judgment to correct

alleged deficiencies in the decretal language. Guarino' s motion alleged that the

April 19, 2022 judgment was a final judgment under La. C. C. P. art. 1841 because

it determined the merits in whole or in part, and therefore, it could be amended at

Although Guarino was the only defendant who filed an exception, the basis of his peremptory exception of no
cause of action was that plaintiffs failed to state a cause of action against AAA Cooper Transportation.

2 The April 19, 2022 judgment also declared Guarino' s exception of no cause of action moot in light of the trial
court sustaining the exception of prescription, denied Guarino' s request for reasonable attorney fees, and granted his
request for an award of $655. 00 for costs incurred in bringing the exceptions. Notice of the April 19, 2022 judgment
was mailed to the parties on April 28, 2022.

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any time pursuant to La. C. C.P. art. 1951 to correct deficiencies in the decretal

language. The proposed amended judgment submitted by Guarino amended the

decretal language to explicitly provide for dismissal of plaintiffs' claims against all

three defendants ( the April 19, 2022 judgment only mentioned Guarino, but stated

that it dismissed " the above captioned matter"). Guarino' s motion noted that

counsel for plaintiffs objected to the language of the proposed amended judgment,

but did not provide an alternative amended judgment for consideration.

Despite the trial court' s stay of the proceedings, it held a hearing on

Guarino' s motion, following which it granted his motion to amend the April 19,

2022 judgment, The trial court acknowledged the plaintiffs' argument that an

exception of prescription cannot be supplied by the trial court in order to dismiss

claims against defendants who have not raised the exception, but explained that it

was nevertheless going to grant the motion so that the decretal language in the

judgment matched the trial court' s intent in rendering the April 19, 2022 judgment,

which was to dismiss plaintiffs' claims as prescribed against all parties. On July

25, 2022, the trial court signed the proposed amended judgment, sustaining

Guarino' s exception of prescription and dismissing plaintiffs' claims against

Guarino, AAA Cooper Transportation, and Ace American Insurance with

prejudice.'

On September 26, 2022, this Court granted plaintiffs' supervisory writ

application regarding the April 19, 2022 judgment. Noting that the April 19, 2022

judgment is a final appealable judgment, this Court remanded the matter to the trial

court with instructions to grant the plaintiffs an appeal pursuant to their April 25,

2022 notice of intent to seek writs. See Harrell -Bijou v. Guarino, 2022- 0693

La.App. 1 Cir. 9126122), 2022WL4463367 ( unpublished). The plaintiffs also

I The July 25, 2022 judgment also declared Guarino' s exception of no cause of action moot in light of the dismissal
of plaintiffs' claims based on prescription, denied his request for reasonable attorney fees, and granted his request
for an award of $655, 04 for costs incurred in bringing the exception of prescription.

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appealed the July 25, 2022 amended judgment, and the appeals of the two

judgments have been consolidated for appellate review.

On appeal, plaintiffs argue that the trial court erred in concluding that their

claims were prescribed, in supplying the exception of prescription for the

defendants who did not assert the exception, in not allowing the plaintiffs to amend

their petition before dismissing their claims with prejudice, and in making

improper substantive changes to a judgment.

DISCUSSION

Amended Judgment

Amendment of judgments is governed by Louisiana Code of Civil Procedure

article 1951, which provides:

On motion of the court or any party, a final judgment may be
amended at any time to alter the phraseology of the judgment or to
correct deficiencies in the decretal language or errors of calculation.
The judgment may be amended only after a hearing with notice to all
parties, except that a hearing is not required if all parties consent or if
the court or the party submitting the amended judgment certifies that
it was provided to all parties at least five days before the amendment
and that no opposition has been received. A final judgment may not
be amended under this Article to change its substance.

A judgment may be amended by the court where the resulting judgment

takes nothing from or adds nothing to the original judgment; however, an

amendment to a judgment which adds to, subtracts from, or in any way affects the

substance of the judgment, is considered a substantive amendment. Barges

Unlimited Inc. v. Morgan City Stevedores, LLC, 2022- 0691, p. 8 ( La.App. 1 Cir.

212123), 367 So. 3d 736, 745. Where a trial court signs a second judgment that

makes substantive changes to its first judgment without following the proper

procedure for doing so,' the second judgment is absolutely null and without effect.

a The only allowable procedures for making a substantive change to a judgment are a contradictory motion for new
trial filed by the parties or by the court on its own motion pursuant to La. C. C. P. art. 1971; amendment by consent of
the parties; or a timely appeal. First NBC Bank, 2021- 1210 at p. 4, n.5, 353 So. 3d at 196, n.5.

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First NBC Bank v. River Park Development, LLC, 2021- 1210, p. 4 ( La.App. 1 Cir.

9/ 16122), 353 So. 3d 193, 196.

The July 25, 2022 amended judgment made substantive changes to the April

19, 2022 judgment, in that it dismissed plaintiffs' claims against additional

defendants not named in the first judgment.' Because it made substantive changes,

it could only be accomplished pursuant to a motion for new trial, consent of the

parties, or a timely appeal. As the changes were not made in accordance with the

only allowable procedures for doing so, the July 25, 2022 amended judgment is

absolutely null and without effect, and we will only consider plaintiffs' appeal of

the April 19, 2022 judgment.

Exception of Prescription

Louisiana Civil Code Article 3492 provides that delictual actions are subject

to a liberative prescription of one year, which commences to run from the day

injury or damage is sustained. Arnouville v. Crowe, 2016- 0046, p. 7 ( La.App. 1

Cir. 9116/ 16), 203 So. 3d 479, 485. The objection of prescription may be raised by

a peremptory exception. La. C. C. P. art. 927( A)( 1). At the trial of a peremptory

exception pleaded at or prior to trial, evidence may be introduced to support or

controvert any of the objections pleaded, when the grounds thereof do not appear

from the petition. La. C. C.P. art. 931. Generally, in the absence of evidence, the

exception of prescription must be decided based upon the facts alleged in the

petition, which must be accepted as true. Arnouville, 2016- 0046 at p. 7, 203 So. 3d

at 485. The burden of proving prescription ordinarily lies with the party raising the

exception; however, if prescription is evident from the face of the petition, the

burden shifts to the plaintiff to show that the action has not prescribed. TS v.

Congregation of Holy Cross Southern Province, Inc., 2022- 01826, p. 7 ( La.

6/ 27/ 23), 366 So. 3d 64, 70.

See Duncan v. Gauthier, 2021- 0220, p. 8 ( La.App. I Cir. 10/ 28/21), 332 So. 3d 1191, 1197 ( The addition of a party
to a judgment is considered a substantive change).

roll

Appellate review of a judgment ruling on an exception of prescription

depends on the manner in which the exception is heard. Thurman v. Aguilar,

2021- 1513, p. 11 ( La.App. 1 Cir. 6122122), 343 So. 3d 806, 816, writ denied, 2022-

01109 ( La. 11/ 1/ 22), 349 So. 3d 8. Where, as here, no evidence has been

introduced to support or controvert the exception of prescription,' the issue of

prescription turns upon the proper application and interpretation of statutory law,

and the exception presents a question of law subject to the de novo standard of

review. Thurman, 2021- 1513 at p. 11, n. 13, 343 So. 3d at 816, n. 13. Under the de

novo standard of review, judgment is rendered on the record, without deference to

the legal conclusions of the tribunal below. Id.

Here, the face of the November 17, 2021 petition shows that plaintiffs'

claims were not filed within one year of the accident. The petition asserts claims

for damages resulting from a May 7, 2020 accident, and although it states that a

federal suit was filed on May 6, 2021 and was later dismissed for lack of subject

matter jurisdiction, there is no allegation that tete defendants were served within the

prescriptive period so as to interrupt prescription. Thus, plaintiffs' petition is

prescribed on its face, and plaintiffs have the burden of proving, by a

preponderance of the evidence, that their claims are not prescribed. See Thurman,

2021- 1513 at p. 11, 343 So. 3d at 816. In opposing Guarino' s exception of

prescription, plaintiffs assert that prescription was interrupted by the timely filing

of the federal suit with an immediate request for service on all named defendants.

No evidence was offered in support of plaintiffs' opposition.

Generally, prescription statutes are strictly construed against prescription

and in favor of the claim sought to be extinguished by it. Bailey v. Khoury, 2004-

0620, p. 9 ( La. 1120105), 891 So. 2d 1268, 1275. Prescription may be renounced,

6 Guarino attached several exhibits related to the federal suit to the memorandum in support of his exceptions.
However, documents attached to memoranda do not constitute evidence and cannot be considered, even if physically
placed in the record. See Denoux v. Vessel Management Services, Inc., 2007- 2143, p. 5- 6 ( La. 5121108), 983 So. 2d
84, 88.

VA

interrupted, or suspended. See La. C. C. arts. 3449- 3472. Prescription is

interrupted when the obligee commences action against the obligor in a court of

competent jurisdiction and venue.7 La. C. C. art. 3462. However, if the action is

commenced in an incompetent court, or in an improper venue, prescription is

interrupted only as to a defendant served by process within the prescriptive period.

Id. An interruption of prescription resulting from the filing of a suit in a competent

court and in the proper venue or from service of process within the prescriptive

period continues as long as the suit is pending. La. G. C. art. 3463( A).

Because the federal suit was not filed in a competent court, prescription

would only be interrupted as to a defendant served by process within the

prescriptive period. The accident at issue in this case occurred on May 7, 2020.

Although plaintiffs alleged that the federal suit was filed within the prescriptive

period, they offered no evidence that any of the defendants were served within the

one- year prescriptive period. Accordingly, plaintiffs failed to prove that

prescription was interrupted, and the trial court did not err in sustaining Guarino' s

exception of prescription and dismissing plaintiffs' claims against Guarino.

Although we have concluded that the trial court did not err in rendering

judgment in favor of Guarino on his exception of prescription, the language in the

April 19, 2022 judgment stating that " the above captioned matter be and hereby is

dismissed with prejudice" is problematic. Guarino' s exceptions were the only

matters before the court, and he is the only defendant mentioned in the April 19,

2022 judgment. However, since plaintiffs' petition also asserted claims against

additional defendants, the trial court erred in dismissing the entire suit. Although

the transcript of the July 25, 2022 hearing reveals the trial court' s belief that all of

plaintiffs' claims were prescribed and desire to dismiss the suit in its entirety for

that reason, the plea of prescription must be specifically pleaded and may not be

A " competent court" or " court of competent jurisdiction" is a court that has jurisdiction over the subject matter of,
and is the proper venue for, the action or proceeding. La. C. C. P. art. 5251( 4).

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supplied by the court. La. C. C. P. art. 927( B); Thurman, 2021- 1513 at p. 18, 343

So. 3d at 821. To the extent that the April 19, 2022 judgment purports to dismiss

claims other than plaintiffs' claims against Guarino, it is in error. For that reason,

we amend the portion of the April 19, 2022 judgment that dismisses " the above

captioned matter" to state that plaintiffs' claims against defendant, Michael P.

Guarino, are dismissed with prejudice.

Opportunity to Amend

Plaintiffs also argue on appeal that the trial court erred in not affording them

an opportunity to amend their petition before dismissing their claims with

prejudice. Louisiana Code of Civil Procedure article 934 provides that when the

grounds of the objection pleaded by the peremptory exception may be removed by

amendment of the petition, the judgment sustaining the exception shall order such

amendment within the delay allowed by the court. If the grounds of the objection

raised through the exception cannot be so removed, the action shall be dismissed.

La. C. C. P. art. 934. The right to amend a petition following the sustaining of a

peremptory exception is not absolute; amendment is not permitted when it would

constitute a vain and useless act. Palowsky v. Cork, 2019- 0148, p. 10 ( La.App. 1

Cir. 5120120), 304 So. 3d 867, 875. Louisiana Code of Civil Procedure article 934

does not require that the plaintiff be provided the opportunity to speculate on

unwarranted facts merely for the purpose of defeating the exception. The right to

amend one' s petition is qualified by the restriction that the objections to the

petition be curable. Id. The decision to allow amendment of a pleading to cure the

grounds for a peremptory exception is within the discretion of the trial court.

Stolzle v. Clayton, 2018- 1641, p. 6 ( La. App. 1 Cir. 7/ 11/ 19), 280 So. 3d 1240,

1244, writ denied, 2019- 01745 ( La. 1/ 14120), 291 So. 3d 679.

In this case, the plaintiffs did not request leave to amend their petition, either

in their opposition to Guarino' s exception or at the hearing on the exception.

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Further, it does not appear that the objections to the petition are curable, as

plaintiffs do not argue that any defendant was served with the federal suit within

the prescriptive period. Thus, we find no abuse of discretion in the trial court' s

failure to allow amendment of the petition prior to dismissal of the plaintiffs'

claims against Guarino.

CONCLUSION

For the reasons set forth herein, the July 25, 2022 trial court judgment is

vacated, and the April 19, 2022 trial court judgment is amended in accordance with

this ruling and affirmed as amended. Costs of this appeal are to be borne equally

by the parties.

JULY 259 2022 JUDGMENT VACATED; APRIL 19, 2022

JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

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