STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-303
BARRYNEE MOORE
VERSUS
SKY ZONE, ABC CORPORATION, AND XYZ INSURANCE COMPANY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER C-20233611, DIVISION J HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Clayton Davis, Judges.
AFFIRMED.
Davis, J., dissents and assigns written reasons. Lamont M. Hills David Daniels, II Luke Cartozzo HILLS DANIELS & ASSOCIATES, LLP 2439 Manhattan Boulevard, Suite 103 Harvey, Louisiana 70058 (504) 641-0016 COUNSEL FOR PLAINTIFF/APPELLANT: Barrynee Moore
Tom Easterly Cameron A. Murray TAYLOR, PORTER, BROOKS & PHILLIPS LLP 450 Laurel Street, 8th Floor Baton Rouge, Louisiana 70801 (225) 387-3221 COUNSEL FOR DEFENDANT/APPELLEE: Drastic Air Lafayette, LLC WILSON, Judge.
Plaintiff, Barrynee Moore (Moore), appeals a trial court judgment dismissing
her claims against Drastic Air Lafayette, LLC (Drastic Air) on the granting of its
exception of prescription. For the forgoing reasons, we affirm.
I.
ISSUES
Moore asserts the following issues for review:
1. Should a peremptory exception raising the objection of prescription be denied when a party is properly substituted and the substitution relates back to the timely filed petition for damages?
2. Should, alternatively, the doctrine of contra non valentem apply to suspend prescription where Drastic Air engaged in conduct that secreted its identity and which prevented Moore from availing herself of her judicial remedies?
II.
FACTS AND PROCEDURAL HISTORY
On July 9, 2022, Moore was a patron at a trampoline park located at 3814
Ambassador Caffery Parkway in Lafayette, Louisiana. She alleges that she was
injured when she jumped into a ball pit and hit the pit’s base, a solid surface of
cement. She alleges that the pit was unattended and lacked any instructions or
warnings.
On July 7, 2023, Moore filed suit against SKYZONE, ABC Corporation
(ABC), and XYZ Insurance Company (XYZ). She alleged that SKYZONE, which
the petition identifies as “a business corporation authorized to do and currently doing
business in the State of Louisiana[,]” was owned by ABC and insured by XYZ. The
original petition contains a paragraph alleging that “[s]aid defendants are indebted
unto your petitioner herein jointly, severally, and in Solido for all such damages as
are reasonable in the premises[.]” This allegation is realleged and affirmed in the
first supplemental and amending petition. On July 21, 2023, Moore filed a first supplemental and amending petition to
substitute Drastic Air Lafayette, LLC (Drastic Air), as a named defendant in place
of ABC. On September 11, 2023, in response to the amended petition, Drastic Air
filed an exception of prescription, alleging that Moore’s claims against it were
prescribed on the face of the pleading and that the applicable one-year prescriptive
period expired before any suit was filed that named a real and/or viable, non-
fictitious entity.
Before the exception was heard, Moore filed a second supplemental and
amending petition wherein she amended her original petition to name Sky Zone,
LLC (Sky Zone), a Nevada limited liability company authorized to do and doing
business in Louisiana, with a principal place of business at 86 N. University Avenue
in Provo, Utah, as a named defendant in each and every place that SKYZONE was
previously mentioned. The second supplemental and amending petition added the
following defendants: (1) Sky Zone Franchise Group, LLC (Sky Zone Franchise
Group); (2) Circustrix Holdings, LLC (Circustrix); (3) Fun Spot Manufacturing,
LLC (Fun Spot); (4) ABEO North America, Inc. (ABEO); (5) Trampoline
Acquisition Parent Holdings, LLC (Trampoline Acquisition); (6) Palladium Equity
Partners, LLC (Palladium Equity); (7) Palladium Equity Partners IV, LLC
(Palladium Equity IV); and (8) Palladium Capital Management IV, LLC (Palladium
Capital IV). This petition alleged that Sky Zone, Drastic Air, and the eight additional
defendants “designed, manufactured, assembled, constructed, franchised, owned,
controlled, maintained, operated, managed, trained, supervised, marketed, and
solicited business” for the trampoline park where she was injured “by advertising its
attractions, activities and events through out [sic] the State of Louisiana and
elsewhere.” The petition further alleged that Drastic Air is the franchisee of Sky
Zone and/or Sky Zone Franchise Group and/or Circustrix and/or Trampoline 2 Acquisition and/or Palladium Equity and/or Palladium Equity IV and/or Palladium
Capital IV. It further alleged that Sky Zone and/or Skyzone Franchise Group and/or
Fun Spot “invented, created, produced, designed, manufactured, assembled,
constructed, marketed, sold, franchised, and/or controlled by contract over two
hundred (200) recreation facilities known as Sky Zone Indoor Trampoline Parks,”
including the Lafayette location where Moore was injured.
The second supplemental and amending petition also alleged that Drastic Air
referred to and intentionally misrepresented itself as Sky Zone throughout all
correspondence and communications concerning Moore’s accident. Various email
correspondence and printouts from the Louisiana Secretary of State’s website were
attached to this petition.
The exception of prescription was heard on February 20, 2024. At the hearing,
Drastic Air called Chris Fudge, a member of Drastic Air and its registered agent, and
his wife, Kimberly Fudge, also a member of Drastic Air, to testify. Drastic Air also
introduced the following evidence: (1) a printout from the Louisiana Secretary of
State’s website showing the results of a search for “Drastic Air Lafayette, LLC;” (2)
citation to Sky Zone with Moore’s original petition attached; (3) citation to Drastic
Air with Moore’s original petition and first supplemental and amending petition
attached; (4) a printout from the Louisiana Secretary of State’s website showing the
results of a search for “Sky Zone;” and (5) Moore’s first supplemental and amending
petition. The only evidence introduced by Moore was a printout from Sky Zone’s
website with the results of Google search of the 3814 Ambassador Caffery Parkway
address attached. The second supplemental and amending petition for damages was
not introduced into evidence. The second supplemental and amending petition and
the email correspondence were attached to Moore’s memorandum in opposition to
the exception of prescription. 3 The trial court granted the exception of prescription in open court. A written
judgment was prepared by Drastic Air’s counsel and signed by the trial court on
February 28, 2024. The judgment granted the exception in favor of Drastic Air and
dismissed Moore’s claims against Drastic Air with prejudice. This timely devolutive
appeal followed.
III.
STANDARD OF REVIEW
In Smith v. Acadian Ambulance Serv., Inc., 22-626, p. 3 (La.App. 3 Cir.
3/22/23), 363 So.3d 564, 567, we noted:
Ordinarily, a judgment granting an exception of prescription is reviewed de novo because it raises a legal question, but when evidence is introduced at the hearing, the trial court’s findings of fact are subject to the manifest error standard of review. Jenkins v. Kauffman, 21-1596 (La.App. 1 Cir. 7/13/22), 344 So.3d 689, writ denied, 22-1242 (La. 11/8/22), 349 So.3d 576. When the pertinent facts are not in dispute and the decision involves purely legal issues, the matter is reviewed de novo, and the trial court’s legal conclusions are not entitled to any deference. Id.; Stevenson [v. Progressive Sec. Ins. Co., 19-637 (La. 4/3/20),] 341 So.3d 1202.
In Smith, 363 So.3d 564, this court performed a de novo review despite the
fact that evidence was introduced at the hearing on the exception of prescription.
This was based on the finding that the trial court applied the wrong legal standard in
granting the exception of prescription by applying the factors set forth in Ray v.
Alexandria Mall, 434 So.2d 1083 (La.1983), regarding “relation back.” This court
found that “[t]he “relation back” concept of Ray, 434 So.2d 1083, and La.Code
Civ.P. art. 1153 does not apply when there is the addition of a joint tortfeasor to a
suit instituted against a correctly named and timely-sued joint tortfeasor.” Smith,
363 So.3d at 567. We find that Smith is distinguishable from the case sub judice
because in this case, while there is an allegation of solidarity, there was no correctly
named defendant in the original petition and no additional party is being named in
4 the amended petition. This is the situation noted by the court in Smith, 363 So.3d at
567:
As explained in Etienne v. National Automobile Insurance Co., 99- 2610, p. 7 (La. 4/25/00), 759 So.2d 51, 56 “Article 1153 and the Ray criteria typically apply to determine if a supplemental petition relates back to the filing of the original petition in situations where the wrong party has been named as the original defendant, and not, as here when additional solidary obligors are named.”
Although additional defendants that were alleged to be solidarily liable with Sky
Zone were added in the second supplemental and amending petition, that is not the
petition that is relevant to this inquiry. Furthermore, the issues in this case are
primarily factual rather than legal, since numerous factual determinations by the trial
court were necessary. Accordingly, we find that the manifest error standard of
review is applicable to this case.1
In conducting a manifest error review, “the issue to be resolved by the
reviewing court is not whether the trier of fact was right or wrong, but whether the
factfinder’s conclusion was a reasonable one” based on the record. Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Accordingly, “[i]f
the trial court or jury’s findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse, even if convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently.” Sistler
v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
1 In brief, Moore argued that she was entitled to a de novo review despite the fact that evidence was introduced at the hearing on the exception and states that “where relevant facts are not in dispute, and the decision to be made is purely legal,” the review should be de novo. At oral argument before this court, however, when questioned directly, Moore’s counsel conceded that the correct standard of review was manifest error.
5 IV.
LAW AND DISCUSSION
This case is governed by the one-year prescriptive period applicable to tort
claims under La.Civ.Code art. 3492, which was in effect at the time of this accident.2
“This prescription commences to run from the day injury or damage is sustained.”
Id. “Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory
exception. However, if prescription is evident on the face of the pleadings, the
burden shifts to the plaintiff to show the action has not prescribed.” Carter v.
Haygood, 04-646, pp. 8–9 (La. 1/19/05), 892 So.2d 1261, 1267 (citations omitted).
In this case, the accident occurred on July 9, 2022, and the original petition was filed
on July 7, 2023. Drastic Air was not named as a defendant until the filing of the first
supplemental and amending petition on July 21, 2023, more than one year after the
date of the accident. Therefore, Moore bears the burden of proof.
“When the action or defense asserted in the amended petition 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.” La.Code Civ.P. art. 1153. In interpreting this code article, the Louisiana
Supreme 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 the 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;
2 Louisiana Civil Code Article 3492 was repealed by Acts 2024, No. 423 § 2, effective July 1, 2024, which is specifically given prospective application only. 6 (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.
Ray, 434 So.2d at 1086–87. All four criteria must be met. Id.
“Prescription is interrupted . . . when the obligee commences action against
the obligor, in a court of competent jurisdiction and venue.” La.Civ.Code art. 3462.
This interruption of prescription by suit against one solidary obligor is effective
against all solidary obligors and their successors. La.Civ.Code arts. 1799 and 3503.
However, “[o]ur law is clear that ‘[p]rescription is not interrupted as to an actual
defendant when only a fictitious defendant is named in the petition, unless
prescription is interrupted by some other means.’” Benson v. ABC Ins. Co., 12-517,
12-385, p. 3 (La.App. 3 Cir. 11/7/12), 106 So.3d 143, 146, writ denied, 12-2650 (La.
2/8/13), 108 So.3d 86, quoting Hill v. Shell Oil, Co., 99-1322, p. 4 (La.App. 5 Cir.
4/25/00), 760 So.2d 511, 512–13.
Moore argues that the amendments relate back to the filing of the original
petition because all of the criteria set forth in Ray, 434 So.2d 1083, are satisfied.
There is no dispute that the amended petitions arise out of the same transaction or
occurrence. With respect to the remaining three Ray criteria, however, there is much
dispute.
Moore requested service of the original petition on SKYZONE at the address
of the trampoline park where she was injured.3 There is no testimony or evidence as
to what date or on whom the original petition was served. The citation is dated July
3 In her brief to this court, Moore concedes that this service was incorrect. 7 10, 2023, but the Sheriff’s Return is blank. While Drastic Air may have had notice
of Moore’s accident, this is not the same thing as notice of the institution of a lawsuit
against it. See Renfro v. State ex rel. Dep’t of Transp. & Dev., 01-1646 (La. 2/26/02),
809 So.2d 947. Moore presented no evidence to show that there was any “identity
of interests” between the non-existent SKYZONE defendant and Drastic Air such
that notice of the suit to SKYZONE would serve as notice to Drastic Air. Id. at 952.
This is not the situation where a plaintiff is “confronted with a maze of corporate . .
. entities” and names the wrong one as defendant. Id.
Mr. Fudge testified that he received the original petition but that he is not
aware of any Louisiana business called SKYZONE, a business corporation, and that
he has no affiliation with ABC or XYZ. Mrs. Fudge testified that she “didn’t pay
much attention” to the original petition because it did not list Drastic Air; but, she
did not see it until her husband was served with the first supplemental and amending
petition at their home, which is the registered address for Drastic Air. Mrs. Fudge
further testified that she had no notice that a lawsuit had been filed against Drastic
Air before the first supplemental and amending petition was served on her husband.
In cross-examining Mrs. Fudge, Moore’s counsel asked if she was “made
aware that there was an injury and a claim being made on behalf of [Moore] at any
time before the filing of a lawsuit.” Drastic Air objected on the grounds of relevance,
and the objection was sustained by the trial court, which stated “let’s just stick to the
lawsuit.” Moore’s counsel responded that he was entitled to lay a foundation for the
introduction of the email threads, and the trial court said, “Sure.” Then Moore’s
counsel asked Mrs. Fudge the same question, Drastic Air’s counsel made the same
objection, and the trial court sustained the objection by saying, “Same thing. If
you’re talking about when she was made aware, what’s important to us is when it
was filed and when she was made aware of the filing.” Moore’s counsel, replied, 8 “Thank you, Your Honor[]” and abandoned that line of questioning. He did not
proffer the email correspondence or any testimony concerning it and moved on to
questioning Mrs. Fudge about whether she had ever searched her name on the
Louisiana Secretary of State’s website, her email address (which is
kim.fudge@skyzone.com), and the signage and website referring to Sky Zone. Mrs.
Fudge explained that Drastic Air is an independent franchise of Sky Zone and is not
owned and operated by the franchisor. Mr. Fudge testified that Drastic Air did not
share employees, books, financials, subsidiaries, or parent companies with Sky
Zone.
Moore’s arguments that her suit against Drastic Air was timely filed because
she was misled concerning the true identities of Sky Zone and Drastic Air are based
on the pre-suit email correspondence which was not admitted into evidence and
which Moore’s counsel failed to proffer. While the email correspondence is attached
to the second supplemental and amending petition and to Moore’s memorandum in
opposition to the exception of prescription, neither of those pleadings were
introduced into evidence or proffered. Our jurisprudence is clear that “[e]vidence
not properly and officially offered and introduced cannot be considered, even if it is
physically placed in the record. Documents attached to memoranda do not constitute
evidence and cannot be considered as such on appeal.” Denoux v. Vessel Mgmt.
Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. “While the legislature
has provided special rules addressing documents which may be considered on
motions for summary judgment without formal introduction into evidence, no such
rules exist for exceptions of prescription.” Desi v. Thomas Jefferson Constr. Corp.,
19-502, p. 4 (La.App. 5 Cir. 10/5/20), 304 So.3d 1068, 1072.
Thus, we find that neither the second nor third criteria set forth in Ray is met
in this case. 9 Furthermore, when the Ray criteria are not met, in order for the filing of the
original petition to interrupt prescription as to Drastic Air, the original petition must
be filed timely against a defendant who is solidarily liable with Drastic Air. In this
case, Drastic Air was substituted for ABC in the first supplemental and amending
petition. Drastic Air put on evidence in the form of Mr. Fudge’s testimony and a
search history from the Louisiana Secretary of State’s website to show that there is
no such entity as SKYZONE, a business corporation, in Louisiana. Drastic Air
argues that prescription against it was not interrupted by the filing of the original
petition because Moore failed to file suit against any viable and non-fictitious
defendant. Moore put on no evidence to show that SKYZONE was the proper party
defendant or that SKYZONE (or Sky Zone as named in the second supplemental and
amending petition) and Drastic Air were solidary obligors.
Finally, Moore argues that the doctrine of contra non valentem applies to
prevent the running of prescription because Drastic Air engaged in conduct that
prevented her from learning Drastic Air’s true identity and misled her into filing her
lawsuit against an incorrect party. In brief, she cites many “facts” from the email
correspondence that was not introduced into evidence and was not proffered. For
the reasons stated above, this email correspondence cannot be considered by this
court.
Moreover, Moore did not raise this issue in opposition to the exception of
prescription at the trial court. Uniform Rules—Courts of Appeal, Rule 1–3, provides
that “[t]he Courts of Appeal shall review issues that were submitted to the trial court
and that are contained in specifications or assignments of error, unless the interest
of justice requires otherwise.” “As a general rule, appellate courts will not consider
issues that were not raised in the pleadings, were not addressed by the trial court, or
are raised for the first time on appeal.” Mendoza v. Grey Wolf Drilling Co., LP, 10 46,438, p. 15 (La.App. 2 Cir. 6/22/11), 77 So.3d 18, 27, writ denied, 11-1918 (La.
11/14/11), 75 So.3d 943. Since contra non valentem was not addressed by the trial
court and is raised for the first time on appeal, we will not consider it.
Additionally, counsel for Moore stated in its argument to the trial court:
When we searched Sky Zone, we could not find a Sky Zone in the Lafayette location, so what did we really have to go on? All we have to go on is what they’re giving us. And we did our own research and we did our own investigation to finally come up with Drastic Air.
We reiterate that Moore introduced no evidence to support her assertion that she was
misled or mistaken as to the identity of the proper party defendant, ABC. Even so,
“reliance on misinformation, standing alone, does not satisfy the reasonable due
diligence requirement for application of the discovery rule of contra non valentem.”
Herman v. State Farm Mut. Auto. Ins. Co., 07-548, p. 10 (La.App. 1 Cir. 11/2/07),
977 So.2d 41, 46. Mrs. Fudge testified that there is a sticker on the door of the
Ambassador Caffery Parkway location that indicates that it is an independent
franchise location, that no one associated with Moore ever asked her what the name
of her company was, and that she had no reason to hide the name Drastic Air.
V.
CONCLUSION
For the foregoing reasons, we affirm the judgment maintaining the exception
of prescription in favor of Drastic Air Lafayette, LLC, and the dismissal of Barrynee
Moore’s claims against it with prejudice. Costs of this appeal are assessed against
the appellant, Moore.
11 NUMBER 24-303 COURT OF APPEAL, THIRD CIRCUIT STATE OF LOUISIANA
BARRYNEE MOORE VERSUS SKY ZONE FRANCHISE GROUP, LLC, ABC CORPORATION AND XYZ INSURANCE COMPANY
DAVIS, Judge, dissents and assigns written reasons. This Court is currently unable to conclude that a solidary obligor was not
named in the original petition to interrupt prescription to a later added Drastic Air,
in my opinion. The original petition named “Sky Zone” as a defendant. After the
one-year anniversary of the alleged injuries, “Sky Zone, LLC” was substituted for
“Sky Zone.” Sky Zone, LLC was alleged to have been negligent in designing and
manufacturing the equipment for the park and negligent in instructing the use of
the equipment. If this amendment relates back, Sky Zone, LLC was always in the
case from the point of the original timely filed petition. La.Code Civ.P. art. 1153.
If Sky Zone, LLC is found to be solidarily liable with Drastic Air, prescription is
interrupted against Drastic Air. La.Civ. Code art. 3503.
To fully determine whether the claims against Drastic Air have prescribed,
the court would tacitly have to find that the claims against Sky Zone, LLC have
prescribed, but no party has raised an exception of prescription regarding the
claims against Sky Zone, LLC. Therefore, until the issue is raised at the trial level,
and it is determined by the trial court whether the Sky Zone, LLC substitution
relates back to the original petition, the granting of the exception of prescription in
favor of Drastic Air is premature.