Roland Douglas Walet v. Southern Theatres Family Holding, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-751 C/W 12-516

ROLAND DOUGLAS WALET, HENRY WALET, JR.
AND MARGARET WALET

VERSUS

SOUTHERN THEATRES FAMILY HOLDING, LLC,
SOUTHERN THEATRES, LLC, DAVID LACOMBE,
DENI DUROUSSEAU AND YOUTUBE, LLC

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2009-7698-E
HONORABLE HERMAN CLAUSE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED IN PART; REVERSED IN PART.

Lawrence N. Curtis
Michael Scott Harper
300 Rue Beauregard, Building C
P.O. Box 80247
Lafayette, LA 70598-0247
(337) 235-1825
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Roland Douglas Walet, Henry Walet, Jr. and Margaret Walet

Maria Fabre Manuel
Onebane Law Firm
1200 Camellia Boulevard, Suite 300
P.O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
ATTORNEY FOR DEFENDANTS/APPELLEES
Southern Theatres Family Holding, LLC and Southern Theatres, LLC

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On December 21, 2009, Plaintiffs, Roland Walet and his parents Henry

Walet, Jr. and Margaret Walet, filed suit against Southern Theatres Family

Holding, LLC, Southern Theatres, LLC, David Lacombe, Deni Durousseau and

YouTube, LLC. Plaintiffs alleged Roland, who is mentally retarded and suffers

from several other genetic and neurological disorders, including Krabbne

leujodystrohia and Tourette’s syndrome, sustained injuries due to the publication

of a “horrifically defamatory video ridiculing Roland.”

In 2004, Roland began working at the Grand 16 Movie Theatre (the Grand).

According to Plaintiffs, Roland soon began experiencing verbal harassment from

Deni Durousseau, who was also employed by the Grand.1 Despite complaints to

management at the Grand, including its general manager, Plaintiffs alleged

Durousseau continued to verbally harass Roland. Plaintiffs asserted in 2008,

Durousseau and another employee, David Lacombe, videotaped Roland while he

was at work at the Grand without his knowledge. The video was uplinked to

YouTube. According to Plaintiffs’ petition, the video included assertions that

Roland was a “sorry excuse of human life,” a “retarded pedophile” and “smokes

weed.” Plaintiffs assert Roland was devastated when he found out about the video

and became extremely depressed. He resigned his position with the Grand in

August of 2009. Plaintiffs alleged because Durousseau and Lacombe were acting

within the course and scope of their employment with the Grand, Southern

Theatres LLC (the owner of the Grand) was vicariously liable for their actions.

Plaintiffs requested damages for defamation and intentional infliction of emotional

1
Durousseau’s exact position at the Grand is not clear. In Plaintiffs’ original petition it is stated he “occupied a
managerial position.” In the amended petition it is sated he was “employed as an usher.”
2

distress from the various defendants.2

After the petition was filed, Durousseau, in proper person, filed an answer on

January 14, 2010, denying the allegations.3 Southern Theatres flied an answer on

February 5, 2010, denying any liability on its part. During discovery, Roland

Walet’s deposition was taken along with the deposition of his psychiatrist.

Durousseau requested a trial date, and the district court set a date of April 2, 2012.

Southern Theatres filed a motion for summary judgment on December 14, 2011.

On February 2, 2012, Plaintiffs filed a First Amended Petition for Damages.

The amended petition named several new defendants, including Daniel James

Broussard (the Assistant Manager of the Grand during the relevant period), Charlie

Nettles (the General Manager of the Grand during the relevant period), and VSS-

Southern Theatres. The amended petition also named Wausau Underwriters

Insurance Company and Liberty Mutual Insurance Company, who were alleged to

provide a policy of comprehensive general liability insurance to defendant

Southern Theatres during all or some of the relevant period.

According to Defendants the amended petition was filed without a motion

for leave and a duty judge not assigned to the case signed an order on an ex parte

basis allowing the filing of the amended petition. This was done without giving

Southern Theatres or Durousseau an opportunity to object or respond.

On February 17, 2012, Southern Theatres filed an Exception of Prescription

and Motion to Strike First Amended Petition for Damages and Jury Demand,

praying for the dismissal of the Plaintiffs’ amended petition and that its answer to

the original Petition for Damages be deemed good and sufficient. Specifically,

Southern Theatres contended the amended petition added new claims, new parties,

new factual allegations, and made a new request for a jury trial. Southern Theatres
2
On May 3, 2010, YouTube, LLC was dismissed from these proceedings when their exceptions of no cause of
action and no right of action were granted. It appears from the record that defendant, David Lacombe, was never
served with the lawsuit.
3
Durousseau subsequently retained legal counsel for these proceedings.
3

contended it was entitled to dismissal of Plaintiffs’ newly made claim of disability

discrimination. In addition, Southern Theatres moved to have the newly added

parties, claim and factual allegations stricken and to have Plaintiffs’ request for a

jury stricken.

A hearing was held on April 2, 2012, after which the trial court ruled in

Southern Theatres’ favor, rendering a judgment “striking the First Amended

Petition for Damages and Jury Demand, granting the Exception of Prescription for

claims made therein, granting the Exception of Prescription against the additional

and named defendants therein and striking the order for a jury trial.” The trial

court gave the following oral reasons:

I’m satisfied that the amending petition established what I consider a
new and different claim, and that actually the original petition being a
suit for defamation, really doesn’t put the defendant on notice that - -
or fair notice of a second claim for a disability discrimination suit
under Louisiana Employment Discrimination Act. And really, in this
case, I think substantial justice would be served by, one, striking the
amendments and request for jury trial and granting the Exception of
Prescription . . .

Plaintiffs filed a writ application with this Court (docket number 12-516) based on

the district court’s refusal to allow the addition of the insurers (Wausau and Liberty

Mutual) and its granting of the motion to strike the request for a jury trial.

Plaintiffs also lodged the present appeal, contending the trial court erred in

granting the exception of prescription and striking portions of the amended

petition. Finding the writ application and the instant appeal sought review of the

same judgment, the writ panel determined a ruling on the writ application should

be rendered simultaneously with the opinion in this appeal. Thus, the writ panel

granted the writ application “for the limited purpose of ordering the consolidation

of the writ application with the appeal.”

4

ANALYSIS

At issue in this appeal is (1) whether Plaintiffs’ amended petition added a

new and different claim for disability discrimination for which Defendant,

Southern Theatres, was not given adequate notice of in the original petition; and

(2) whether the amended petition naming Southern Theatres’ insurers, Wausau and

Liberty Mutual, as party defendants, related back to the original petition for

purposes of adding newly named defendants.

I. Exception of Prescription as to the Claim for Disability Discrimination.

Roland Walet resigned his position with the Grand in August of 2009. The

original petition was filed on December 21, 2009. The amended petition was filed

on February 2, 2012, which raised for the first time a disability discrimination

claim under La.R.S. 23:323. A cause of action for discrimination under the

Louisiana Employment Discrimination Law is “subject to a prescriptive period of

one year.” La.R.S. 23:303(D). As set forth above, Roland stopped working for the

Grand in August of 2009, and did not seek to return to his work there. Thus, on its

face the claim for disability discrimination is prescribed unless it relates back to the

filing of the original petition.4

Plaintiffs argues the trial court erred in finding his claim for disability

discrimination did not relate back to the filing of the original petition. Louisiana

Code of Civil Procedure Article 1153 sets forth what is required for an amended

petition to relate back to the original petition:

When the action or defense asserted in the amended petition or answer
arises out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment

4
Southern Theatres also notes Plaintiffs failed to comply with comply with the notice provision of La.R.S. 23:303.
Louisiana Revised Statutes 23:303(C) provides:

A plaintiff who believes he or she has been discriminated against, and who intends to pursue
court action shall give the person who has allegedly discriminated written notice of this fact at
least thirty days before initiating court action, shall detail the alleged discrimination, and both
parties shall make a good faith effort to resolve the dispute prior to initiating court action.

Having found the claim for disability discrimination did not relate back to the original petition, we pretermit any
discussion of this issue.
5

relates back to the date of filing the original pleading.

The original petition states the “[t]he gravamen of the Petition for Damages is the

publication and Internet posting of a video which resulted in national and

international dissemination of false and defamatory statements about Roland

Douglas Walet.” There is no mention in the original petition of any allegations of

disability discrimination. While the petition sets out that the employees who made

the video were employees of the Grand and made the video while working at the

Grand in the course and scope of their employment (for which Southern Theatres is

vicariously liable), these factual allegations relate to the act of dissemination of the

YouTube video. After reviewing the amended petition in conjunction with the

original petition, we cannot say the trial court erred in finding “that . . . the original

petition being a suit for defamation, really doesn’t put the defendant on notice that

- - or fair notice of a second claim for a disability discrimination suit under

Louisiana Employment Discrimination Act.”

This Court has held “[t]he essential factors courts uniformly look for [in

determining if a new claim in an amended petition relates back] is whether the

timely filed petitions provided opponents adequate notice of a judicial controversy

arising out of a specific set of circumstances, and whether there is a factual

connexity between the petitions.” Bethea v. Modern Biomedical Services, Inc., 97-

332, p. 8 (La.App. 3 Cir. 11/19/97), 704 So.2d 1227, 1232, writs denied, 97-3169,

97-3170 (La. 2/13/98), 709 So.2d 760, 761 (citing Taylor v. Johnson, 617 So.2d

1209 (La.App. 3 Cir.1993)). Plaintiffs contend the original petition did give

adequate notice to Southern Theatres of the disability discrimination claim. We

disagree.

In Autrey v. Energy Corp. of America, Inc., 594 So.2d 1354 (La.App. 3 Cir.),

writ denied, 596 So.2d 197 (La.1992), the plaintiff suffered a heart attack at work

and filed a workers’ compensation suit seeking benefits in 1986. The plaintiff

6

never returned to work. Over two years after the workers’ compensation suit was

filed, plaintiff filed an amended petition alleging retaliatory discharge. An

exception of prescription was filed and denied by the trial court. This Court

reversed the denial of the exception of prescription, holding the amended petition

for retaliatory discharge did not relate back to the filing of the original petition.

We stated:

The original petition only alleges that [plaintiff] was employed
by Energy and that he was injured while working for Energy, and
makes a claim for worker’s compensation benefits. The original
petition lacks any allegation of Energy’s refusing to employ, or
discharging, [plaintiff] for having asserted a worker’s compensation
claim and did not give Energy fair notice that a formal claim under the
retaliatory discharge provision was forthcoming. The factual
allegations are totally different. The wrongful discharge alleged in the
supplemental and amending petition arises from a completely separate
occurrence. The filing of the original petition for worker’s
compensation benefits does not toll the running of prescription on a
subsequently filed retaliatory discharge claim.

Therefore, we find the retaliatory discharge claim has
prescribed and the amending and supplemental petition does not relate
back to the date of the original petition.

Id. at 1359.

We find a similar situation here. The amended petition’s claim for disability

discrimination included allegations and occurrences that are different from those

contained in the original petition. The factual allegations in the original petition all

relate to the dissemination of the YouTube video. The original petition lacks any

allegation of Southern Theatres engaging in disability discrimination. Simply

because the original petition notes that Roland was employed by Southern Theatres

and alleges he was harassed at work by co-employees does not give fair notice to

Southern Theatres that a formal claim for disability discrimination was

forthcoming. Therefore, we find the trial court did not err in finding the amended

petitions claims sounding in disability discrimination were prescribed.

7

II. Exception of Prescription as to the Addition of New Defendants.

Plaintiffs also allege the trial court erred in refusing to find the amended

petition related back to allow the addition of new defendants, Wausau and Liberty

Mutual, who were the general liability insurers for Southern Theatres.5

The law allows for new defendants to be added by amended pleadings if the

applicable criteria are met. Giroir v. South Louisiana Med. Ctr., 475 So.2d 1040

(La.1985); Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). The supreme court

in Ray, 434 So.2d at 1087, established the following criteria for determining

whether Article 1153 allows an amendment which changes the identity of the party

defendant to relate back to 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;

(4) The purported substitute defendant must not be a wholly new or
unrelated defendant, since this would be tantamount to assertion of a
new cause of action which would have otherwise prescribed.

This Court has stated, “[w]here there is some factual connexity between the

original and amended assertions, together with some identity of interest between

the original and the additional or supplemental parties, amendment should be

allowed.” Holmes v. Triad Hospitality, 11-1486, p. 4 (La.App. 3 Cir. 5/16/12), 89

So.3d 532, 535 (citing Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d

1272 (La.1980)).

Applying the four-part test of Ray, we find merit to Plaintiffs’ argument that

the amended petition relates back to the original filing for purposes of adding

5
No challenge was made by Plaintiffs to the portion of the trial court’s ruling denying the addition of the other
newly named defendants.
8

Wausau and Liberty Mutual. First, Plaintiffs’ amended claim’s assertions of

defamation and intentional infliction of emotional distress arise out of the same

occurrence as set forth in the original petition.

We also find the second Ray criteria is met. The Louisiana Supreme Court in

Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990), noted “[t]he

gravamen of the second criteria is prevention of prejudice to the defendant in

preparing and conducting its defense.” The Findley court stressed “[w]hile

designed to protect a defendant against prejudice from lack of notification of a

claim within the period of limitation, prescriptive statutes are not designed to

protect a defendant against non-prejudicial pleading mistakes that his opponent

makes in filing the claim within the period.” Id. at 1170 (citing Giroir, 475 So.2d

1040 (La.1985), and Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979)). We

can see no prejudice that will be incurred by Wausau and Liberty Mutual. The

Finley court noted prejudice in these situations is “usually . . . the deprivation of an

opportunity to perform a timely investigation of the claim . . . or by the loss of

documents or witnesses which the defendant would have gathered or preserved if

timely notified.” Id. Considering its own insured engaged immediately in the

discovery process and has contested these proceedings throughout, Wausau and

Liberty Mutual cannot claim prejudice in this matter.

As to the fourth Ray criteria, it cannot be reasonably argued that Wausau and

Liberty Mutual were wholly new or unrelated defendants. They were the insurers

of a named defendant, Southern Theatres, in the original petition. This is not a

situation of an amending petition adding a wholly new or unrelated defendant, but

rather correcting a pleading oversight made by Plaintiffs in their original petition.

In the present case, as it relates to the addition of the insurers of Southern

Theatres, we do not find any essential protective purpose of the prescriptive statute

that is violated by permitting relating back. Further, it is well settled the doctrine

9

of relation back of amended pleadings should be liberally applied, particularly in

the absence of prejudice. Giron v. Housing Auth. of Opelousas, 393 So.2d 1267

(La.1981); Cohen v. Brookshire Bros. Inc., 01-1159 (La.App. 3 Cir. 6/5/02), 819

So.2d 429, writ denied, 02-1767 (La. 10/14/02), 827 So.2d 423; Strouse v. M & M

Props., 32,792 (La.App. 2 Cir. 3/3/00), 753 So.2d 434. We conclude the amended

petition naming Wausau and Liberty Mutual as party defendants relates back under

La.Code Civ.P. art. 1153 to the date of filing of the original petition. Accordingly,

this portion of the trial court’s judgment to the contrary is reversed.

III. Grant of Defendant’s Motion to Strike Jury Demand.

Louisiana Code of Civil Procedure Article 1733(c) provides that “[t]he

pleading demanding a trial by jury shall be filed not later than ten days after either

the service of the last pleading directed to any issue triable by a jury, or the

granting of a motion to withdraw a demand for a trial by jury.” The jurisprudence

has recognized the absolute and inviolate right of party to a juridical cause to a trial

by jury, except as limited by law and provided the requisite procedural forms are

fulfilled. Alkazin v. City of Baton Rouge, 97-738 (La.App. 1 Cir. 11/7/97), 705

So.2d 208; Revel v. Telecheck Louisiana, 581 So.2d 405 (La.App. 4 Cir.), writ

denied, 588 So.2d 1116 (La.1991). Although the right to a jury trial is

fundamental, it still must be requested timely. Sharkey v. Sterling Drug, Inc., 600

So.2d 701 (La.App. 1 Cir.), writs denied, 605 So.2d 1099, 1100 (La.1992). If a

request for a jury trial is not made timely, the right is waived, and the trial judge is

vested with much discretion to disallow the filing of amended pleadings, if he finds

that they are being filed solely for the purpose of circumventing the time

limitations of La.Code Civ.P. art. 1733. Id. The right of a litigant to a jury trial is

so fundamental in character, that the courts will indulge every presumption against

a waiver, loss, or forfeiture thereof. Champagne v. American Southern Ins. Co.,

295 So.2d 437 (La.1974).

10

In the present case, the trial court did not specifically explain his reasons for

striking Plaintiffs’ request for a jury trial. In opposing Plaintiffs’ request for jury

trial, Southern theatres opined that the sole purpose of the Plaintiffs’ amended

petition was to circumvent the time limitations for requesting a jury trial. It can be

assumed the trial court agreed with this argument. However, having found the trial

court erred in not allowing the addition of Wausau and Liberty Mutual, it cannot

reasonably follow that the amended petition was filed solely for the purposes of

circumventing the time limitations of La.Code Civ.P. art. 1733. Therefore, we

reverse the trial court’s grant of Defendant’s Motion to Strike Jury Demand.

DECREE

For the foregoing reasons, we reverse the portion of the trial court’s judgment

granting the exception of prescription as to the insurers, Wausau and Liberty

Mutual. We conclude the amended petition naming Wausau and Liberty Mutual as

party defendants relates back under La.Code Civ.P. art. 1153 to the date of filing of

the original petition. We also reverse the portion of the judgment granting

Defendant’s Motion to Strike Jury Demand. All other aspects of the trial court’s

judgment are affirmed. All costs of this appeal are assessed equally against

Plaintiffs and Defendants.

AFFIRMED IN PART; REVERSED IN PART.

11