John Hill and Nancy George, on Behalf of Their Daughter, Kayomoniqic George v. State Farm Mutual Automobile Insurance Company, Trejo's Princeton, LLC, Juan Monzon, and Francisco Valdez- Ramirez

Judgment rendered May 10, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,091-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JOHN HILL and NANCY GEORGE, Plaintiffs-Appellants
on behalf of their deceased daughter,
KAYOMONIQIC GEORGE

VERSUS

STATE FARM MUTUAL Defendants-Appellees
AUTOMOBILE INSURANCE
COMPANY, TREJO’S PRINCETON,
LLC, JUAN MONZON, and
FRANCISCO VALDEZ-RAMIREZ

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 78577

Honorable Allen Parker Self, Jr., Judge

*****

JOHN D. & ERIC G. JOHNSON LAW FIRM Counsel for Appellants
By: Eric Gerard Johnson

LAW OFFICES OF DAMON D. KERVIN
By: Damon D. Kervin

SEABAUGH & SEPULVADO LLC Counsel for Appellees,
By: Alan Thomas Seabaugh State Farm Mutual
Michael Christopher Melerine Automobile Insurance
Paul L. Wood Company and Juan
Monzon

PHELPS DUNBAR, LLP Counsel for Appellee,
By: Douglas M. Kleeman Nautilus Insurance
Company

BLANCHARD, WALKER, O’QUIN, Counsel for Appellee,
& ROBERTS, APLC Trejo’s Princeton, LLC
By: Scott R. Wolf
McLaurine H. Zentner

DAVIDSON, MEAUX, SONNIER, Counsel for Appellee,
McELLIGOTT, FONTENOT, Alberto Andrade Moya
GIDEON & EDWARDS, LLP
By: Robert D. Felder
Jami L. Ishee
James H. Domengeaux, Jr.

*****

Before PITMAN, STEPHENS, and ROBINSON, JJ.

STEPHENS, J.

The issue in this survival action/wrongful death action is whether

plaintiffs’ initial petition, which named as defendants the driver, the driver’s

alleged employers, and the employers’ insurer, interrupted prescription

against another employee who was riding in that vehicle but was not added

to the lawsuit until an amending petition was filed more than two years after

the accident. Plaintiffs have appealed from the trial court’s adverse

judgment granting the exception of prescription filed by the later-added

defendant, Alberto Andrade Moya (“Moya”). For the reasons set forth

below, we amend the trial court’s judgment in part, affirm as amended, and

remand the matter for further proceedings in accordance with this opinion.

FACTS/PROCEDURAL BACKGROUND

This action for damages for the survival and wrongful death of

Kayomoniqic George was filed by her parents, John Hill and Nancy George

(“plaintiffs”), on March 27, 2020. Kayomoniqic died as a result of injuries

she sustained in a two-vehicle accident that occurred on November 28, 2019,

around 2:15 p.m. The vehicle she was driving south on US Highway 79 in

Webster Parish, Louisiana, was struck head-on by a northbound drunk

driver, who was attempting to pass another vehicle in a no-passing zone.

Named as defendants were the driver of the 2001 Chevrolet Tahoe that hit

Kayomoniqic, Francisco Valdez-Ramirez (“Valdez-Ramirez”), his alleged

employer, Trejo’s Princeton, LLC (“Trejo’s”), the owner of the vehicle, Juan

Monzon (“Monzon”)1 (Trejo’s was also alleged to be an owner of the

1
Monzon is both an owner and a manager of the Trejo’s which allegedly
employed Valdez-Ramirez.

vehicle), and the vehicle’s insurer, State Farm Mutual Automobile Insurance

Co. (“State Farm”).

Plaintiffs alleged negligence on the part of Valdez-Ramirez in

operating the vehicle, including being intoxicated, and negligence on the

part of Monzon, for negligent entrustment. Plaintiffs also alleged Monzon

and Trejo’s were negligent in hiring, training, and supervising their alleged

employee, Valdez-Ramirez, as well as contributing to his intoxication and

failing to prevent him from operating the vehicle. In Paragraph 5, plaintiffs

alleged that Valdez-Ramirez was an agent and/or employee under the

supervision of Monzon and/or Trejo’s, and that the actions of Valdez-

Ramirez arose out of and were during the course of his employment for

Monzon and/or Trejo’s. In Paragraph 6 of the petition, plaintiffs

alternatively alleged that, even if Valdez-Ramirez was not an agent or

employee, he operated the Tahoe with the consent of Monzon and/or Trejo’s

and, as such, was covered by any and all liability policies of these

defendants.

Discovery between the parties began. Depositions were taken,

including that of Moya, a passenger in the Tahoe driven by Valdez-Ramirez.

Moya, however, was not added as a defendant until plaintiffs filed an

amending petition on January 13, 2022, in which they alleged that Moya was

also an employee of Monzon and Trejo’s working in the course and scope of

his employment alongside Valdez-Ramirez and Monzon at the time of the

accident. Plaintiffs further alleged that Moya conspired with Valdez-

Ramirez to commit a willful act, and that Moya was jointly negligent

together with Monzon for allowing Valdez-Ramirez onto Trejo’s property,

permitting him to access the restaurant’s vehicle, and furnishing him with
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alcohol.2 Also added as a defendant in this petition was Nautilus Insurance

Company.

Moya filed an exception of prescription on March 17, 2022, plaintiffs

filed an opposition on April 5, 2022, and the trial court held a hearing on the

2
Paragraph 5 of plaintiffs’ petition was amended to state:

At all times pertinent hereto, VALDEZ-RAMIREZ and
ANDRADE [MOYA] were agents and/or employees and/or under
the supervision of MONZON and/or TREJO’S, and the actions of
VALDEZ-RAMIREZ and ANDRADE [MOYA] arose out of and
were during the course of his employment for MONZON and/or
TREJO’S and/or while performing duties related to the conduct of
MONZON’S and/or TREJO’S business. At all material times,
ANDRADE [MOYA] conspired with VALDAZ-RAMIREZ to
commit a willful act, and is solidarily liable with VALDEZ-
RAMIREZ for Plaintiffs’ damages. MONZON and ANDRADE
[MOYA] negligently permitted VALDEZ-RAMIREZ to enter
TREJO’S premises, and the risk of harm to Plaintiffs was
foreseeable and easily associated with MONZON’S and
ANDRADE [MOYA]’S negligence. MONZON and ANDRADE
[MOYA] knew or should have known that VALDEZ-RAMIREZ
was not competent to operate the 2001 Chevrolet Tahoe.
MONZON and ANDRADE [MOYA] negligently permitted
VALDEZ-RAMIREZ access to the 2001 Chevrolet Tahoe.
MONZON and ANDRADE [MOYA] committed acts of
negligence, gross negligence, and reckless disregard for the safety
of Plaintiffs in furnishing alcoholic beverages to VALDEZ-
RAMIREZ. At all material times, MONZON, VALDEZ-
RAMIREZ, and ANDRADE [MOYA] were in the course and
scope of their employment with TREJO’S and/or were performing
duties related to the conduct of TREJO’S business.

Paragraph 6 was amended to state:

In the alternative, even if VALDEZ-RAMIREZ was not an agent
or employee of MONZON and/or TREJO’S, VALDEZ-RAMIREZ
operated the 2001 Chevrolet Tahoe, VIN No. [omitted], with the
consent of the aforementioned, and as such any and all liability
policies of MONZON, TREJO’S, VALDEZ-RAMIREZ, STATE
FARM, and NAUTILUS covered VALDEZ-RAMIREZ and
TREJO’S employees.

Added to the petition, Paragraph 16 provides:

TREJO’S, MONZON, VALDEZ-RAMIREZ, and ANDRADE
[MOYA] are all insured for their liability by NAUTILUS.
KAYOMONIQIC’s damages were caused by the negligence of
TREJO’S employees (including, without limitation, VALDEZ-
RAMIREZ, MONZON and/or ANDRADE [MOYA]) who were
acting at all material times within the scope of their employment
with TREJO’S and/or while performing duties related to the
conduct of TREJO’s business.
3

exception on May 3, 2022. The trial court found that: the allegations made

in the amending petition were insufficient; Moya was neither a joint

tortfeasor nor solidarily liable with the other previously named defendants;

plaintiffs were not entitled to amend their petition further; and, based upon

the above findings, the trial court granted the exception of prescription and

dismissed plaintiffs’ claims against Moya. Judgment granting the exception

of prescription, inter alia, was rendered and signed on May 19, 2022. It is

from this judgment that plaintiffs have appealed.

DISCUSSION

Plaintiffs’ Argument

Plaintiffs’ first two assignments of error are that the trial court erred in

sustaining defendant Moya’s exception of prescription and dismissing as

untimely their claims against him asserted in their amending petition. Their

third assignment of error is related—that the trial court erred in failing to

allow them an opportunity to amend their petition as provided for in La.

C.C.P. art. 934.

According to plaintiffs, their timely filed petition against Valdez-

Ramirez, Monzon, and Trejo’s continuously interrupted prescription against

Moya, who is an additional joint tortfeasor whose fault contributed to

plaintiffs’ damages. Plaintiffs have alleged that the crash which killed

Kayomoniqic was caused by the “combined and joint negligence” of

Valdez-Ramirez, Monzon, Trejo’s, and Moya.

Plaintiffs further contend that they have alleged facts showing that the

combined fault of all four of the above-listed defendants contributed to

Kayomoniqic’s death and plaintiffs’ damages, which is all that is required to

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plead that these defendants are joint tortfeasors such that a timely suit

against one interrupts prescription against the others.

Plaintiffs assert that the trial court erred in failing to find that their

timely suit against Valdez-Ramirez, Monzon, and Trejo’s within one year of

the accident continuously interrupted prescription on their later claim against

Moya, a joint tortfeasor with the timely sued defendants.

Plaintiffs also argue that their timely suit against Moya’s employers,

Monzon and Trejo’s, continuously interrupted prescription against Moya,

their employee. Plaintiffs further contend that, because they have alleged

both solidary and joint liability as a basis for the interruption of prescription

against Moya, his exception of prescription is premature.

In the alternative, plaintiffs urge that the trial court erred in failing to

allow them an opportunity to amend their petition. Plaintiffs concede that

their claims against Moya will be untimely if the jury finds that the original

defendants are free from fault. However, plaintiffs take the position that it is

premature to dismiss their claims against Moya at this time.

Plaintiffs ask that this Court reverse the judgment of the trial court and

either overrule Moya’s exception of prescription without prejudice or refer

the exception to the merits. Alternatively, plaintiffs ask this Court to permit

them to amend their petition to allege additional facts to show that Moya is a

joint tortfeasor and/or solidary obligor with the timely sued defendants.

Defendant Moya’s Argument

Defendant Moya points out that the accident occurred on November

28, 2019. The amending petition naming him as a defendant was filed on

January 13, 2022, more than two years later. As the claims against Moya are

prescribed on their face, plaintiffs had the burden of establishing that they
5

were not prescribed by either showing that Moya was a joint tortfeasor, a

solidary obligor, or that the claims related back to the original demand.

According to defendant Moya, the trial court did not err in finding that

plaintiffs failed to meet their burden of proof.

Defendants argue that plaintiffs’ claim that prescription was

interrupted because Moya is a joint tortfeasor with other defendants named

in the original petition is not set forth in their amended petition, which fails

to allege any independent act of negligence on Moya’s part. According to

Moya, the conclusory legal statements pled by plaintiffs were insufficient to

allege that he was either a joint tortfeasor or solidary obligor

Plaintiffs’ amending pleading has alleged nothing against Moya on his

own, no duty owed by him and no act that could legally serve as a cause of

the accident when combined with the actions of Monzon, Trejo’s, and

Valdez-Ramirez. Accepting the facts pled in the petitions as true, Moya

cannot be a joint tortfeasor under Louisiana law.

According to plaintiffs, Monzon and Trejo’s owned the restaurant and

the vehicle involved in the collision. The evidence submitted by plaintiffs in

connection with the motion for summary judgment established that Monzon

owned and had control over the vehicle, consented to Valdez-Ramirez

driving the vehicle, and allowed use of the vehicle by all restaurant

employees equally. Moya, as a Trejo’s employee and co-worker of Valdez-

Ramirez, had no ownership, custody, or control over the vehicle and thus no

duty to prohibit access to it. Furthermore, once inside the vehicle, Moya

was just a passenger.

In addition to owing no duty as to the vehicle itself, Moya contends

that he owed no duty and is not liable for controlling the actions of his
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alleged co-worker, Valdez-Ramirez, or those of his employer, Monzon or

Trejo’s. In their amending petition, plaintiffs are apparently claiming that

Moya should have stopped Valdez-Ramirez from entering Trejo’s and using

the vehicle, and prevented Monzon from authorizing this use. There is no

such duty on the part of Moya, as he has no special relationship with either

his alleged co-worker or employer that would establish vicarious liability for

their actions.

Since there is no duty owed by Moya and no vicarious liability for the

acts of his co-worker or employer, Moya’s actions cannot be a legal cause of

the accident and resulting damages. Thus, he is not a joint tortfeasor with

Valdez-Ramirez, Monzon, or Trejo’s, nor is he solidarily liable with either

or both of these parties.

Plaintiffs alternatively argued that, because Trejo’s and/or Monzon

were named as a defendant in the original petition, prescription was

interrupted for Moya because he was an employee. However, urges Moya, a

generalized allegation against an employer does not automatically interrupt

prescription as to all employees. If there is no duty on the part of a certain

employee such as Moya, there can be no breach and no causation.

At the hearing on the exception of prescription, plaintiffs’ counsel

argued that suit against either an employer or employee interrupted

prescription as to the other. This is true, but only regarding actions by the

specific employee. In this case, that would be Valdez-Ramirez, not Moya,

who was not named in the original petition. The original petition alleged

negligent hiring, training and supervision by Trejo’s—actions for which

Moya cannot be liable.

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Under Louisiana law, Moya is not vicariously liable for, and cannot

be solidarily liable for, the acts of his employer or alleged co-worker

because there is no special relationship. There is no legal connection

between Moya and his employer or his co-worker which would create a joint

tortfeasor or solidary obligor relationship to interrupt prescription. With no

joint tortfeasor or solidary obligor relationship, there was no interruption,

asserts Moya. Furthermore, there was no valid explanation for plaintiff’s

delay in naming Moya as a defendant.

According to Moya, there is also no solidary liability for any alleged

conspiracy. Plaintiffs have claimed that Moya conspired with Valdez-

Ramirez to commit a willful act and is solidarily liable; however, no willful

act is identified, and no facts regarding conspiracy are pled or contained

within the record. Thus, the conclusory assertions are insufficient to

establish solidarity.

Analysis

The standard of review of a trial court’s ruling on an exception of

prescription depends on whether evidence is introduced. When, as in this

case, no evidence has been introduced at a hearing on an exception of

prescription, all allegations of the petition(s) are to be accepted as true.

Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-0061 (La. 10/10/21),

333 So. 3d 368; Anding o/b/o Anding v. Ferguson, 54,575 (La. App. 2 Cir.

7/6/22), 342 So. 3d 1138; Evans v. Heritage Manor Stratmore Nursing &

Rehabilitation Center, L.L.C., 51,651 (La. App. 2 Cir. 9/27/17), 244 So. 3d

737, writ denied, 17-1826 (La. 12/15/17), 231 So. 3d 639.

Delictual actions are subject to a liberative prescription of one year

which runs from the day injury or damage is sustained. La. C.C. art. 3492.
8

If a petition has prescribed on its face, the burden shifts to the plaintiff to

show that the action has not prescribed. Davis v. State through Louisiana

Racing Commission, 20-1020, pp. 3-4 (La. 5/13/21), 320 So. 3d 1028, 1032;

Campo v. Correa, 01-2707, p. 7 (La. 6/21/02), 828 So. 2d 502, 508; City

Life Live, L.L.C. v. Post Office Employees Federal Credit Union, 52,616, p.

5 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1251, 1254, writ denied, 19-00751

(La. 9/17/19), 279 So. 3d 376.

It is undisputed that prescription on plaintiffs’ tort action had run at

the time of their amending petition’s filing on January 13, 2022. However,

prescription is interrupted when, inter alia, suit is timely filed in a court of

competent jurisdiction and venue. La. C.C. art. 3462. Such was the case

with plaintiffs’ original petition against defendants Monzon, Trejo’s,

Valdez-Ramirez, and State Farm.

An interruption of prescription against one solidary obligor is

effective against all other solidary obligors, and the interruption continues

while the suit is pending. La. C.C. arts. 1799, 3503; Glasgow v. PAR

Minerals Corp., 10-2011 (La. 5/10/11), 70 So. 3d 765; Picone v. Lyons, 601

So. 2d 1375, 1377 (La. 1992); Perkins v. Willie, 03-0126, p. 4 (La. App. 1

Cir. 4/2/04), 878 So. 2d 574, 576. An interruption of prescription against

one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art.

2324(C); Hines v. Browning-Ferris, Inc., 46,577, p. 4 (La. App. 2 Cir.

9/21/11), 73 So. 3d 479, 482, writ denied, 11-2340 (La. 12/2/11), 76 So. 3d

1180; Perkins, supra.

In this case, plaintiffs’ basis for asserting an interruption of

prescription is that Moya, the newly added defendant, is a joint tortfeasor

and/or is solidarily obligated with defendants who were timely sued. Thus,
9

plaintiffs must, for purposes of defeating an exception of prescription,

sufficiently allege that Moya has joint tortfeasor and/or solidary obligor

status with these defendants. See, Rizer v. American Surety and Fidelity

Insurance Co., 95-1200, pp. 2-3 (La. 3/8/96), 669 So. 2d 387, 388-89; Iles v.

State Farm Mutual Automobile Insurance Co., 18-276, p. 3 (La. App. 3 Cir.

11/7/18), 258 So. 3d 850, 852, writ denied, 18-2016 (La. 2/11/19), 263 So.

3d 1152; Wheat v. Nievar, 07-0680, p. 4 (La. App. 1 Cir. 2/8/08), 984 So. 2d

773, 775.

A joint tortfeasor is defined as a party whose conduct, whether

intentional or negligent, combines with another party and causes injury to a

third party. La. C.C. art. 2324; Milbert v. Answering Bureau, Inc., 13-22

(La. 6/28/13), 120 So. 3d 678, 688; Greer v. Johnson, 37,655, p. 5 (La. App.

2 Cir. 9/24/03), 855 So. 2d 898, 901. The term “joint tortfeasor” may be

applied both to the situation where two or more persons are acting in concert

or where “[t]he negligence of concurrent tortfeasors . . . occurs or coalesces

contemporaneously,” to produce an injury. Milbert, supra. Joint tortfeasors

are solidarily liable for the damage they cause when they conspire to commit

an intentional or willful act. La. C.C. art. 2324(A); Milbert, supra. If

liability is not solidary because the actions of joint tortfeasors are not

intentional or willful, then liability for the damages caused by two or more

persons is a joint and divisible obligation. La. C.C. art. 2324(B); Milbert,

supra at 688-89. Under Louisiana’s comparative fault system, “the fault of

every person responsible for a plaintiff’s injuries must be compared, whether

or not they are parties, regardless of the legal theory of liability asserted

against each person. Milbert, supra, citing Dumas v. State ex rel. Dept. of

10

Culture, Recreation & Tourism, 02-0563, p. 11 (La. 10/15/02), 828 So. 2d

530, 537. See also La. C.C. art. 2323.

In Wheat, supra, the plaintiff, an automobile accident victim, sought

to add the sheriff as a defendant to a timely filed suit more than a year after

the accident. An exception of prescription filed by the sheriff was sustained

by the trial court. The First Circuit reversed the trial court’s judgment

dismissing the suit against the sheriff’s office and remanded the matter. In

doing so, the appellate court found:

In the instant case, the plaintiff alleged in the amending petition
that the Sheriff’s Office “contributed” to his damages. More
importantly, plaintiff alleged specific acts that, when taken as
true, were at least minimally sufficient to assert some fault on
the part of the Sheriff’s Office, which leads to the status of joint
tortfeasor with one or more of the original defendants. For
example, reading both petitions together, Mr. Wheat alleged
that the “[f]ailure to properly position authorized units in an
appropriate place for warning oncoming motorists of impending
danger ahead,” combined with the driver’s act of being unable
to stop after cresting the overpass, caused the damage. Based
on those allegations and others alleged in the petitions, read in
light of the applicable jurisprudence, we must find that the
timely filed suit against the original one or more joint
tortfeasors interrupted prescription against the Sheriff’s
Office[.] Of course, this in no way establishes or predicts the
plaintiff’s ability to prove that any actions by the Sheriff’s
Office actually contributed to the plaintiff’s damages.

Id. at pp. 6-7, p. 777. The key difference between Wheat, supra, and the

instant case is that in this case, there are no allegations of specific acts on the

part of the newly added defendant to support his status as a joint tortfeasor

or solidary obligor. To properly allege joint liability, plaintiffs must do

more than merely assert such a relationship. See, Jones v. Iberia Parish

Government, 18-34, pp. 5-6 (La. App. 3 Cir. 9/26/18), 257 So. 3d 198, 201-

02. See also, Milbert, supra; McKenzie v. Imperial Fire and Casualty Ins.

Co., 12-1648, p. 7 (La. App. 1 Cir. 7/30/13), 122 So. 3d 42, 48. There must

11

be allegations of specific facts on the part of the newly added defendant that,

when taken as true for purposes of defeating an exception of prescription,

are sufficient to assert a joint tortfeasor and/or solidary obligor relationship

between that defendant and at least one of the timely sued defendants.

We agree with defendant Moya that the trial court’s ruling on his

exception of prescription, made solely on the face of the original and

amending petitions since the parties introduced no evidence in support or

opposition thereof, is legally sound. While plaintiffs have alleged a joint

tortfeasor and/or solidary obligor relationship between Moya and the timely

sued defendants, they have not backed up these broad, sweeping allegations

with any specific facts. As they stand, plaintiffs’ allegations against Moya

are insufficient, and therefore, this Court will affirm the trial court’s

judgment sustaining the exception of prescription.

However, our analysis does not end here. La. C.C.P. art. 934

provides:

When the grounds of the objection pleaded by the peremptory
objection 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, or
if the plaintiff fails to comply with the order to amend, the
action, claim, demand, issue, or theory shall be dismissed.

As noted by the supreme court in Reeder v. North, 97-0239, p. 15 (La.

10/21/97), 701 So. 2d 1291, 1299, the law takes a liberal approach toward

allowing amended pleadings to promote the interests of justice. In Breland

v. Willis Knighton Medical Center, 51,150, p. 6 (La. App. 2 Cir. 2/15/17),

212 So. 3d 724, 727, this Court cited Whitnell v. Menville, 540 So. 2d 304,

304 (La. 1989), wherein the Louisiana Supreme Court recognized that

“where the plaintiff has raised allegations in argument which might be
12

sufficient to overcome a peremptory exception of prescription, he should be

allowed time to amend his petition to assert such allegations, even though

the claim asserted in the original petition is prescribed on its face.”

The court in Whitnell further observed that it is not necessary to allow

plaintiff time to amend if he cannot even point out possible grounds

sufficient to overcome the exception, but a court may allow time to amend if

the new allegations raise the possibility that the claim is not prescribed, even

if the ultimate outcome of the prescription issue, once the petition is

amended, is uncertain. Id. at 309 (citing H & H Boat Rental, Inc. v. Vidos,

225 So. 2d 308, 310 (La. App. 1 Cir. 1960); Craig v. Housing Authority of

New Orleans, 482 So. 2d 148, 149 (La. App. 4 Cir. 1986)). Breland, supra

at pp. 6-7, pp. 727-28. See also, Quinn v. Louisiana Citizens Property Ins.

Corp., 12-0152, pp. 19-20 (La. 11/2/12), 118 So. 3d 1011, 1023; Wyman v.

Dupepe Construction, 09-0817, p. 1 (La. 12/1/09), 24 So. 3d 848, 849.

Unless it can be determined in advance of the amendment that the new

allegations could have no effect on the prescription issue, then an

opportunity to amend should be allowed. Whitnell, supra (citing Drane v.

City of New Orleans, 328 So. 2d 752, 754, n. 2 (La. App. 4 Cir. 1976));

Breland, supra at p. 7, p. 728; Scott v. Zaheri, 14-0726, p. 15 (La. App. 4

Cir. 12/3/14), 157 So. 3d 779, 788.

We find that the trial court erred in denying plaintiffs an opportunity

to amend their petition in this case. The likelihood of plaintiffs’ success on

the merit of their claims against defendant Moya is not determinative as to

the issue of whether they should be allowed to amend their petition to flesh

out and fully allege said claims. Instead, the only issue is whether allowing

them to amend the petition to properly state the claims could have an effect
13

on the issue of prescription. In accordance with La. C.C.P. art. 934, we will

allow plaintiffs to amend their petition to cure their prescription problem if

they can. This case will be remanded to the trial court to afford plaintiffs the

opportunity to amend their petition.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended in

part with instructions, and as amended, is affirmed. This matter is remanded

to the trial court for further proceedings in accordance with this opinion.

Costs of this appeal are assessed equally to plaintiffs, John Hill and Nancy

George, on behalf of their deceased daughter, Kayomoniqic George, and to

defendant, Alberto Andrade Moya.

AMENDED IN PART, AND, AS AMENDED, AFFIRMED;

REMANDED.

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