Alexis Hunt v. Louisiana Municipal Risk Management Agency

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-456

ALEXIS HUNT, GENAE HUNT INDIVIDUALLY,
AND AS NATURAL TUTRIX OF HER MINOR
CHILDREN, GEKIRA HUNT AND JAKALYN HUNT

VERSUS

LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY

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SUPERVISORY WRIT FROM THE
TWELTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2013-9283-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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ON REMAND FROM THE
LOUISIANA SUPREME COURT

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, James T. Genovese,
Shannon J. Gremillion, and John E. Conery, Judges.

Saunders, J., dissents with written reasons.
Gremillion, J., dissents for the written reasons assigned by Judge Saunders.

WRIT GRANTED AND MADE PEREMPTORY.

Darrel D. Ryland
J.B. Treuting
Wesley Elmer
Danielle A. Soldani-Ryland
Stephen C. Ryland
Blake E. Ryland
Law Office of Darrel D. Ryland
Post Office Drawer 1469
Marksville, Louisiana 71351
(318) 253-5961
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
Alexis Hunt, Genae Hunt Individually,
and as Natural Tutrix of Her Minor Children,
Gekira Hunt and Jakalyn Hunt

Steven J. Bienvenu
Falgoust, Caviness and Bienvenu
Post Office Box 1450
Opelousas, Louisiana 70571-1450
(337) 942-5812
COUNSEL FOR DEFENDANT/RELATOR:
City of Marksville

GENOVESE, Judge.

This case comes before this court pursuant to remand from the Louisiana

Supreme Court. Defendant/Relator, the City of Marksville (City), initially applied

for supervisory writs with this court to reverse the judgment of the trial court

denying its Exception of Prescription. After this court denied the City’s writ, the

City then applied for a supervisory and/or remedial writ with the Louisiana

Supreme Court. The City’s writ to the supreme court was granted, and the case

was remanded to us “for briefing, argument[,] and opinion.” For the reasons that

follow, we grant the writ and make it peremptory; we reverse the judgment of the

trial court denying the Exception of Prescription; we grant the Exception of

Prescription; and, we dismiss the petition of Plaintiffs, Alexis Hunt, Genae Hunt

Individually, and as Natural Tutrix of Her Minor Children, Gekira Hunt and

Jakalyn Hunt.

FACTS

On June 21, 2012, Alexis Hunt, Genae Hunt, Gekira Hunt, and Jakalyn Hunt

were involved in an automobile accident with a vehicle owned by the City and

being operated by Cory Guillot. On May 9, 2013, suit was filed by Plaintiffs,

Alexis Hunt, Genae Hunt Individually, and as Natural Tutrix of Her Minor

Children, Gekira Hunt and Jakalyn Hunt (collectively Ms. Hunt), against

Defendant, Louisiana Municipal Risk Management Agency (LMRMA). Therein,

Ms. Hunt alleged that at the time of the accident, Mr. Guillot was operating a

vehicle owned by the City while in the course and scope of his employment with

the City. LMRMA was alleged to have a policy of insurance that provided

coverage to the City, and, according to the petition, LMRMA was being sued

pursuant to La.R.S. 22:655.1 LMRMA2 appeared and filed an Exception of No

Cause of Action on July 24, 2013.

On July 26, 2013, Ms. Hunt filed a supplemental and amending petition,

adding the City as an additional defendant. The City responded with an Exception

of Prescription, which it filed on August 26, 2013.

On March 7, 2014, the trial court held a hearing on the Exception of No

Cause of Action and the Exception of Prescription. The trial court granted

LMRMA’s Exception of No Cause of Action and denied the City’s Exception of

Prescription. Judgment was signed on March 31, 2014, and the City filed an

application for supervisory writs with this court on April 25, 2014. Writs were

denied by this court on July 18, 2014.

On August 15, 2014, the City applied for writs to the Louisiana Supreme

Court. The supreme court granted the City’s writ on November 14, 2014, and

remanded the matter to this court “for briefing, argument[,] and opinion.”

ISSUE

We must decide whether the trial court erred in denying the City’s Exception

of Prescription.

LAW AND DISCUSSION

We note at the outset that the parties disagree on the standard of review to be

applied by this court in reviewing the trial court’s denial of the City’s Exception of

Prescription. Ms. Hunt argues that when, as in this case, evidence is introduced at

a hearing on an exception of prescription, the factual findings of the trial court are

1
The petition mistakenly cited La.R.S. 22:655 which formally contained the direct action
provisions now found in La.R.S. 22:1269.
2
LMRMA noted that it was improperly named in the petition as Louisiana Risk
Management.
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reviewed under the manifest error or clearly wrong standard of review. Wimberly

v. Blue, 08-1535 (La.App. 3 Cir. 5/6/09), 11 So.3d 560. To the contrary, the City

asserts that this court is not to give deference to the legal conclusion of the trial

court and that we are to conduct a de novo review of the trial court’s ruling.

Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507. We agree with

Ms. Hunt.

In Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5
(La.App. 3 Cir. 4/6/11), 61 So.3d 826, 829-30, we reviewed the law
pertaining to the exception of prescription:

The peremptory exception of prescription is
provided for in La.Code Civ.P. art. 927(A)(1). When the
exception of prescription is tried before the trial on the
merits, “evidence may be introduced to support or
controvert [the exception] when the grounds thereof do
not appear from the petition.” La.Code Civ.P. art. 931.

When an exception of prescription is
filed, ordinarily, the burden of proof is on
the party pleading prescription. Lima v.
Schmidt, 595 So.2d 624, 628 (La.1992).
However, if prescription is evident on the
face of the pleadings, as it is in the instant
case, the burden shifts to the plaintiff to
show the action has not prescribed. Id.;
Younger v. Marshall Ind., Inc., 618 So.2d
866, 869 (La.1993); Williams v. Sewerage &
Water Bd. of New Orleans, 611 So.2d 1383
(La.1993).

Eastin v. Entergy Corp., 03-1030, p. 5 (La.2/6/04), 865
So.2d 49, 54.

If evidence is introduced, the trial court’s findings of
fact are then subject to a manifest error analysis. London
Towne Condo. Homeowner’s Ass’n v. London Towne
Co., 06-401 (La.10/17/06), 939 So.2d 1227. If no
evidence is introduced, then the reviewing court simply
determines whether the trial court’s finding was legally
correct. Dauzart v. Fin. Indent. Ins. Co., 10-28 (La.App.
3 Cir. 6/2/10), 39 So.3d 802.

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Bulliard v. City of St. Martinville, 14-140, p. 2 (La.App. 3 Cir. 6/4/14), 139 So.3d

1269, 1271, writ denied, 14-1455 (La. 10/10/14), 151 So.3d 586.

In the instant matter, according to Ms. Hunt’s petition, the subject accident

occurred on June 21, 2012. Since the supplemental and amending petition adding

the City as a defendant was not filed until July 26, 2013, Ms. Hunt bears the

burden of proving the interruption of the one year prescriptive period.3

Additionally, given that evidence was introduced at the hearing on the City’s

Exception of Prescription, this court must apply the manifest error/clearly wrong

standard of review to the trial court’s denial of the exception.

The parties and the trial court acknowledge the unique nature of LMRMA,

which was created pursuant to La.R.S. 33:1341–La.R.S. 33:1350. However, the

trial court’s grant of the Exception of No Cause of Action and the dismissal of

LMRMA was not appealed and is not before this court. Further, the absence of

solidarity between LMRMA and the City is not disputed. Thus, as framed by the

City, “[t]he question, therefore, is whether the untimely suit against the City of

Marksville somehow relates back to the timely filed suit against a non-viable

defendant, when there is no solidarity between the two entities and no joint

obligations.”

Absent solidarity between the entities, the interruption of prescription as to

the claims asserted against the City may still occur by virtue of La.Code Civ.P. art.

1153, which provides that “[w]hen the action or defense asserted in the amended

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Louisiana Civil Code Article 3492 provides:
Delictual actions are subject to a liberative prescription of one year. This
prescription commences to run from the day injury or damage is sustained. It
does not run against minors or interdicts in actions involving permanent
disability and brought pursuant to the Louisiana Products Liability Act or state
law governing product liability actions in effect at the time of the injury or
damage.
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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 relates back to the

date of filing the original pleading.” Thus, we must consider whether or not

Ms. Hunt’s untimely suit against the City relates back to the date suit was timely

filed against LMRMA.

In its oral reasons for judgment, the trial court based its analysis on Allstate

Insurance Co. v. Doyle Giddings, Inc., 40,496 (La.App. 2 Cir. 1/25/06), 920 So.2d

404, writ denied, 06-425 (La. 4/28/06), 927 So.2d 294, and concluded that the

supplemental petition adding the City as a defendant related back to the filing of

the original petition against LMRMA so as to interrupt the running of the

prescriptive period. Notably, the second circuit in that case applied the factors

originally set forth by our supreme court in Ray v. Alexander Mall, Through

St. Paul Property & Liability Insurance, 434 So.2d 1083 (La.1983), and reiterated

in Renfroe v. State ex rel. Department of Transportation & Development, 01-1646

(La. 2/26/02), 809 So.2d 947.

In Renfroe, 809 So.2d at 950-51, our supreme court discussed La.Code

Civ.P. art. 1153, stating as follows:

In Ray v. Alexandria Mall, Through St. Paul Property &
Liability Ins., 434 So.2d 1083, 1087 (La.1983), this Court established
the following criteria for determining whether art. 1153 allows an
amendment which changes the identity of the party or parties sued 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 petition;

(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;

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(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.

Applying the foregoing criteria to the present case, clearly, the first of the

Ray factors is present in this case. Both the original and supplemental petition

filed by Ms. Hunt arise out of the same June 21, 2012 automobile accident.

The second factor set forth in Ray addresses notice and resultant prejudice to

the untimely named defendant. In an effort to show that the City had the requisite

notice as contemplated by La.Code Civ.P. art. 1153, Ms. Hunt notes first that the

City was mentioned in the original petition, was identified as the owner of the

adverse vehicle, and was alleged to be vicariously liable for the negligent actions

of Mr. Guillot. However, the City was not named as a defendant at that point in

the litigation.

Also germane to the issue of notice, Ms. Hunt references deposition

testimony that was introduced into evidence. We have reviewed the testimony

relied upon by Ms. Hunt, and we find that what is established by this evidence is

merely that the City was aware that an accident occurred, that the accident

involved a City employee, and that claims4 were being made. Our supreme court

expressly stated in this regard that notice of an accident “is not the same as

receiving notice of the institution of the lawsuit.” Renfroe, 809 So.2d at 951 (citing

Ray, 434 So.2d 1083). There is no evidence that the City received notice of the

institution of the lawsuit by Ms. Hunt until service of the amended petition.

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We note that during questioning of the deponent, the distinction was made between a
6

Therefore, the evidence relied upon by Ms. Hunt fails to satisfy her burden of

proof on the second factor delineated in Ray.

With respect to the third Ray factor, Ms. Hunt argues that “[b]ased on

LMRMA’s status as indemnifier for the City of Marksville, the City of Marksville

knew or should have known that but for a mistake concerning the identity of the

defendant, that they would also have been named as a defendant.” We find this

assertion to be contradictory. On the one hand, in an effort to establish notice on

the part of the City, Ms. Hunt contends that her petition “provides several instances

of how the City of Marksville is a party liable to plaintiffs for this automobile

accident.” Yet, these same allegations show that Ms. Hunt was obviously not

mistaken about the City’s identity. Rather, the identity of the City was

unquestionably known at the time the original petition was filed as evidenced by

the foregoing allegations. Ms. Hunt specifically asserted that a City employee was

involved in the accident while driving a vehicle owned by the City. Despite Ms.

Hunt’s actual knowledge of the City’s identity, she did not name the City as a

defendant when suit was initiated only against LMRMA. The reason the City was

not named is unknown; however, Ms. Hunt’s failure to name the City was not “for

a mistake concerning the identity of the proper party defendant[.]” Renfroe, 809

So.2d 947. Therefore, we find that Ms. Hunt failed to show that she mistakenly

sued the wrong defendant due to mistaken identity as set forth in the third Ray

factor.

The fourth Ray factor requires a consideration of whether the newly added

defendant is “a wholly new or unrelated defendant[.]” Id. Ms. Hunt argues that

the City “is not a wholly new or unrelated party since LMRMA, as indemnifier of

claim and a lawsuit.
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the City of Marksville, is the party responsible for paying any judgment rendered

against the City of Marksville with regards to this automobile accident.” Further,

she argues that the City and LMRMA have “identity of interest that exists between

them[.]” In support of her contention, Ms. Hunt relies upon Findley v. City of

Baton Rouge, 570 So.2d 1168 (La.1990), and Allstate Insurance Co. v. Doyle

Giddings, Inc., 920 So.2d 404, which was referenced by the trial court.

Ms. Hunt posits that according to Findley:

When there is an identity of interests between [the] originally named
defendant and [the] party that plaintiff actually intended to sue, an
amendment purporting to substitute [the] proper defendant may relate
back, in the absence of prejudice, on the ground that institution of
[the] action against [the] originally named defendant served to
provide notice of litigation to [the] substitute defendant.

Again, while Ms. Hunt emphasizes and focuses on the question of notice, in so

doing, she disregards the opening premise that the untimely added defendant was a

“party that plaintiff actually intended to sue.” (emphasis added).

In Findley, a plaintiff, intending to sue the owner of a park where he was

injured, filed suit against the City of Baton Rouge, failing to make a distinction

between it and the Recreation and Park Commission for the Parish of East Baton

Rouge (BREC). Plaintiff later sought to amend its pleadings to add BREC as a

defendant, and BREC filed an exception of prescription. The supreme court

considered the applicability of La.Code Civ.P. art. 1153 and discussed its source,

Fed. R. Civ. P. 15(c), opining that the purpose of relation back is “to prevent

injustice to plaintiffs who mistakenly name an incorrect defendant, at least when

there was no prejudice to the subsequently named correct defendant. The rule,

however, did not apply when the amendment sought to name a new and unrelated

defendant.” Findley, 570 So.2d at 1170 (citing Giroir v. S. La. Med. Ctr., Div. of

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Hosps., 475 So.2d 1040 (La.1985)). Applying the Ray factors, the supreme court

likened the relationship of the governmental entities to a parent corporation and its

subsidiary and found that BREC was not a wholly new or unrelated defendant.

Accordingly, the supreme court applied La.Code Civ.P. art. 1153 and allowed the

supplemental petition to relate back to the original petition such that the claims

against BREC had not prescribed.

Allstate Insurance Co. v. Doyle Giddings, Inc., 920 So.2d 404, which was

also argued by Ms. Hunt and discussed by the trial court, cited Findley and the

concept of an identity of interests between the original and the new defendants.

While we do not disagree with the legal premise discussed in these cases, we find

the facts of the present case to be distinguishable. The courts in Allstate and

Findley applied La.Code Civ.P. art. 1153 based upon an identity of interests

between an originally named defendant and a defendant that plaintiff actually

intended to sue. Ms. Hunt has not established that she intended to sue the City.

To the contrary, for the reasons more fully explained above, with knowledge that

the City owned the vehicle involved in the accident, that the driver was employed

by the City, and that LMRMA is the indemnifier of the City, it is apparent that

Ms. Hunt intentionally named only LMRMA when suit was originally filed.

The concept of an identity of interests was later discussed by this court in

Bulliard, 139 So.3d 1269. Interestingly, in Bulliard, the City of St. Martinville and

LMRMA were both originally named as defendants. The plaintiff thereafter

sought to add the State of Louisiana, through the Department of Transportation and

Development (DOTD), as an additional defendant. The DOTD responded with an

exception of prescription. Applying the same law and jurisprudence discussed

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herein, this court found that the amended petition did not relate back to the filing of

the original petition, and we affirmed the trial court’s grant of the exception of

prescription.

In reaching our conclusion in Bulliard, 139 So.3d at 1273-74 (emphasis

added), this court quoted the following language of our supreme court, which is

critical to our present determination:

As we held in Findley, the Ray criteria seek “to prevent injustice to
plaintiffs who mistakenly named an incorrect defendant, at least
when there was no prejudice to the subsequently named correct
defendant . . . [;] the rule however [does] not apply when the
amendment sought to name a new and unrelated defendant.” Findley,
supra at 1170 (citing Giroir, supra); see also Newton v. Ouachita
Parish School Bd., 624 So.2d 44 (La.App. 2 Cir.1993) (holding that
where plaintiff timely sued the Ouachita Parish School Board
(“OPSB”), mistakenly believing that OPSB supervised and controlled
the school where the tortious incident occurred, and then filed an
untimely petition naming the Monroe City School Board (“MCSB”)
as the proper party, the court held that the purpose of plaintiff’s
amended petition was to name a wholly new defendant and not to
merely correct a misnomer, such that suit against the MCSB had
prescribed under Ray).

[Renfroe, 809 So.2d] at 952-53 (alteration in original).

While we are mindful that “[g]enerally, prescription statutes are strictly

construed against prescription and in favor of the claim sought to be extinguished

by it[,]” such statues are also “designed to prevent old and stale claims from being

prosecuted.” Wells v. Zadeck, 11-1232, pp. 6-7 (La. 3/30/12), 89 So.3d 1145,

1149. Additionally, La.Code Civ.P. art. “1153 is an attempt to strike a balance

between a plaintiff’s right to proceed against the correct defendant and the

defendant’s right to be free from stale and prescribed claims.” Huffman v.

Goodman, 34,361, p. 17 (La.App. 2 Cir. 4/4/01), 784 So.2d 718, 730, writ denied,

01-1331 (La. 6/22/01), 794 So.2d 791 (citing Hunsucker v. Global Bus. Furniture,

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33,972 (La.App. 2 Cir. 9/27/00), 768 So.2d 698, writ denied, 00-3013 (La.

12/15/00), 777 So.2d 1235; Fortenberry v. Glock, Inc. (USA), 32,020 (La.App. 2

Cir. 6/16/99), 741 So.2d 863).

In this case, Ms. Hunt timely filed suit against LMRMA, but not against the

City. The interruption of prescription by the filing of suit against LMRMA would

serve to interrupt the prescriptive period as to the City if the City and LMRMA

were solidary obligors. They are not. Therefore, Ms. Hunt’s amending petition

adding the City as a defendant is timely only if it relates back to the filing of the

original petition in accordance with La.Code Civ.P. art. 1153. For the reasons set

forth above, we find that Ms. Hunt has failed to satisfy the second, third, and fourth

criteria set forth in Ray for relation back to the original timely filed petition against

LMRMA. Therefore, the untimely supplemental petition seeking to add the City

as a defendant does not relate back to the filing of the original petition, and the

claims asserted against the City have prescribed.

DECREE

For the foregoing reasons, we grant the writ and make it peremptory;

we reverse the judgment of the trial court denying the Exception of Prescription

filed by the City of Marksville; we grant the Exception of Prescription filed by the

City of Marksville; and, we dismiss the petition of Plaintiffs, Alexis Hunt, Genae

Hunt Individually, and as Natural Tutrix of Her Minor Children, Gekira Hunt and

Jakalyn Hunt. Costs of this appeal are assessed to Plaintiffs, Alexis Hunt, Genae

Hunt Individually, and as Natural Tutrix of Her Minor Children, Gekira Hunt and

Jakalyn Hunt.

WRIT GRANTED AND MADE PEREMPTORY.

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