STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 1514
DEE WAYNE THURMAN
VERSUS
JESUS AGUILAR, EMPOWER INSURANCE GROUP, JESUS HERNANDEZ, PEAK PROPERTY AND CASUALTY INSURANCE, MARY HEFLEBOWER AND ALLSTATE INSURANCE COMPANY
Judgment Rendered: ! JUN 2 2 2022
On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2020- 15498
Honorable Ellen M. Creel, Judge Presiding
Marcus J. Plaisance Counsel for Plaintiff/Appellant Mark D. Plaisance Dee Wayne Thurman Prairieville, Louisiana and
Maurice D. Hall Plaquemine, Louisiana
M. Randall Brown Counsel for Defendant/ Appellee Cameron M. Mary Alinsco Insurance Company Mandeville, Louisiana
BEFORE: MCCLENDON, WELCH, AND THERIOT, JJ. McCLENDON., J.
The trial court found that plaintiff's fax filed petition did not have full force and
effect, and therefore did not interrupt prescription, because the applicable fees were
not delivered within seven days of the clerk of court's receipt of the fax filing as required by LSA- R. S. 13: 850. Thus, the trial court sustained defendant's peremptory
exception raising the objection of prescription and dismissed plaintiffs claims with
prejudice. Plaintiff appeals. For the following reasons, we affirm in part and reverse in
part.
FACTUAL AND PROCEDURAL HISTORY
On December 21, 2020, Dee Wayne Thurman ( plaintiff) fax filed a petition
seeking damages for injuries allegedly sustained in a December 21, 2019 automobile
accident. Named as defendants therein were Alinsco Insurance Company ( Alinsco). 1
appellee herein; Alinsco' s insured, Jesus Aguilar; Peak Property and Casualty Insurance
Corporation ( Peak), appellee in a companion appeal bearing docket number 2021 -CA -
1513; and Peak' s insured, Jesus Hernandez. 2
On December 22, 2020, the clerk of court provided plaintiff with confirmation of
receipt of the December 21, 2020 fax filing. The confirmation of receipt stated that fees
in the amount of $ 850. 00 were owed in connection with the fax filing and the filing of
the original petition ( the $ 850-00 fax filing fee). The confirmation of receipt also
included the language of LSA- R. S. 13: 850. Pursuant to LSA- R. S. 13: 850, a party may
fax file a pleading with the same force and effect as filing the original document if
certain requirements are met, including delivery of the filing fees within seven days of
the clerk's receipt of the fax filing. See LSA- R. S. 13: 850( 6). If the filing fees are not
delivered within seven days, the fax filing has no force or effect. See LSA- R. S.
13: 850( C). Plaintiff does not dispute that he did not submit payment of the $ 850. 00 fax
filing fee within seven days of the clerk of court's receipt of the fax filing.
I Alinsco was improperly named as Empower Insurance Group in plaintiff's original petition. 2 Also named as defendants were Allstate Insurance Company ( Allstate) and Allstate' s insured, Marilyn Heflebower. However, Allstate and Ms. Heflebower are not parties to this appeal.
2 Subsequently, plaintiff electronically filed ( e -filed) the petition on December 23,
2020. Plaintiff paid fees owed in connection with the e -filing in the amount of $ 7. 20
the $ 7. 20 e -filing fee) by credit card the same day.
Presumably because the $ 850. 00 fax filing fee was not paid timely, Peak was
served with the December 23, 2020 e -filed petition, rather than the December 21, 2020
fax filed petition. In response to the December 23, 2020 e -filed petition, Peak filed a
peremptory exception raising the objection of prescription. Peak argued that plaintiff's
claims, which arose from the December 21, 2019 accident, were prescribed at the time
the petition was e -filed on December 23, 2020. 3 Alinsco filed a peremptory exception of
prescription that advanced the same argument. Though Alinsco and Peak' s exceptions
of prescription were initially set for hearing on June 3, 2021, the hearing was reset to
July 14, 2021, pursuant to an unopposed motion to continue filed by plaintiff.
On July 6, 2021, plaintiff fax flied oppositions to Alinsco and Peak's exceptions of
prescription .4131aintiff argued that his claims were not prescribed because the December
21, 2020 fax filing timely instituted suit pursuant to LSA- R. S. 13: 850. Plaintiff further
maintained that the December 23, 2020 e -filing was not the petition that instituted his
suit, as argued by Alinsco and Peak, but rather constituted timely delivery of the
original petition as required by LSA- R. S. 13: 850. In support of plaintiff's arguments,
plaintiff offered the December 21, 2019 accident report; an undated and unfiled copy of
plaintiff's petition for damages; the clerk of court's December 22, 2020 confirmation of
receipt of the December 21, 2020 fax filing; and the December 23, 2020 e -filed copy of
plaintiff's petition for damages.
On July 12, 2021, Alinsco and Peak each fax filed a reply brief.5 Alinsco and Peak
argued that because plaintiff did not pay the $ 850. 00 fax filing fee within seven days as
required by LSA- R. S. 13: 850, the December 21, 2020 fax filing had no force or effect,
3 Peak also maintained that the prescriptive period was not affected by the limited suspension/ extension of legal deadlines enacted due to the Covid- 19 pandemic. This issue is not in dispute.
4 Plaintiffs original opposition was filed on July 9, 2021. 5 Alinsco's original reply brief was filed the day of the hearing, July 14, 2021. Peak's original reply brief was filed on July 19, 2021.
3 and the December 23, 2020 e -filing was barred by prescription. 6 In support of their
arguments, Alinsco and Peak attached the clerk of court's " Case Summary," which
reflected activity in the suit, as well as the clerk of court's financial records regarding
the suit. The attached documents confirmed that plaintiff did not pay the $ 850. 00 fax
filing fee that was due in connection with the December 21, 2020 fax filing until March 2, 2021.
On July 13, 2021, plaintiff filed a motion to strike the reply briefs, or in the
alternative, to continue the hearing on the exceptions of prescription.? Plaintiff
contended that Peak and Alinsco' s reply briefs improperly raised substantive issues and
arguments that exceeded the scope of the exceptions of prescription. Accordingly,
plaintiff asserted that the trial court's consideration of the newly raised arguments
would unfairly prejudice him, because he did not have sufficient time to meaningfully
respond. Alternatively, plaintiff requested a continuance of the hearing set for July 14,
2021, to allow him time to conduct adequate discovery, such as interrogatories,
requests for production of documents, and " the deposition of the St. Tammany Clerk of
Court who at all times advised the filing of the original document under [ LSA- R. S.]
13: 850 was accomplished by plaintiffs counsel electronically filing said lawsuit."
On the same day, Alinsco and Peak fax filed a joint memorandum in opposition
to plaintiffs motion to strike their reply briefs .8Alinsco and Peak argued that plaintiffs
whereas their reply briefs were authorized by Louisiana District Court Rule 9. 9( d).
Alinsco and Peak further maintained that because plaintiff argued in his opposition that
the December 21, 2020 petition was timely fax filed pursuant to LSA- R. S. 13: 850, their
reply briefs properly addressed whether the requirements of LSA- R.S. 13: 850 were met,
including payment of all fees. Alinsco and Peak also opposed plaintiffs request for a
I Alinsco's reply also asserted that the December 23, 2020 e -filing did not constitute delivery of the original petition as required by LSA- R. S. 13: 850. However, the trial court found it unnecessary to consider this argument, and it is not before us on appeal.
7 We note that plaintiff's petition was styled only as a " Motion to Strike." However, the caption of a pleading does not control. Rather, courts are obligated to look through the caption of pleadings in order to ascertain their substance. Armstrong v. ARCCO Company Services, Inc., 2021- 0131 ( La. App. 1 Cir. 10/ 18/ 21), 331 So. 3d 939, 945. Thus, based on the alternative request for a continuance in plaintiffs Motion to Strike," we also consider it a motion to a continue.
8 The original was filed on July 19, 2021.
51 continuance, arguing that the hearing had already been continued once at plaintiffs
request and that no amount of time or discovery was needed to confirm that plaintiff
did not comply with the requirements of LSA- R. S. 13: 850. In support of their joint
memorandum, Alinsco and Peak submitted emalls dated from May 21 through June 3,
2021, wherein counsel for Alinsco, counsel for Peak, and counsel for plaintiff discussed
the prior continuance and whether the $ 850. 00 fax filing fee had been timely paid.
The trial court heard Alinsco and Peak's exceptions of prescription, together with
plaintiffs motion to strike the reply briefs or to continue the hearing, on July 14, 2021.
The trial court admitted into evidence the entire suit record and additional exhibits
offered by plaintiff; denied plaintiffs mot ion - to strike the reply briefs or to continue the
hearing; and granted the exceptions of prescription. The trial court also ruled that the
exceptions of prescription were granted as to Alinsco and Peak's insureds, even though
neither insured had been served, made an appearance, or joined in the exceptions of
prescription.
Subsequently, the trial court executed written judgments confirming its oral
rulings in favor of Alinsco and Peak. Specifically, a July 29, 2021 written judgment
sustained the exception raising the objection of prescription filed by Alinsco, dismissed
plaintiffs claims against Alinsco and its insured Mr. Aguilar, and denied plaintiff's motion
to strike Alinsco' s reply brief or to continue the hearing. Likewise, an August 4, 2021
written judgment sustained the exception raising the objection of prescription filed by
Peak, dismissed plaintiff's claims against Peak and its insured Mr. Hernandez, and
denied plaintiff's motion to strike Peak's reply brief or to continue the hearing.
Plaintiff has appealed both the July 29, 2021 judgment in favor of Alinsco and
Mr. Aguilar and the August 4, 2021 judgment in favor of Peak and Mr. Hernandez. At
issue in this appeal is the July 29, 2021 judgment in favor of Alinsco and Mr. Aguilar.
The August 4, 2021 judgment in favor of Peak and Mr. Hernandez is at issue in a
companion appeal, bearing docket number 2021 -CA -1513.9
9 Plaintiff filed a motion to consolidate the two appeals, requesting that both appeals be assigned to one panel for purposes of oral argument and consideration. This Court granted the motion to consolidate on March 7, 2022. Plaintiff also filed a motion for leave to use the record lodged in 2021 -CA -1513 in 2021 - CA -1514, which this Court granted on March 9, 2022.
5 LSA- R. S. 13: 850
Louisiana Revised Statutes 13: 850 provides, in pertinent part:
B. Within seven days, exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court:
1) The original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.
2) The fees for the facsimile filing and filing of the original document stated on the confirmation of receipt, if any.
3) A transmission fee of five dollars.
C. If the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.
As set forth above, a party may fax file a pleading with the same force and effect
as filing the original document, if the requirements of LSA- R. S. 13: 850( 6) are met.
However, a filing is merely conditional once a fax of a document is transmitted, because
a fax filed document is only vested with force and effect if each requirement of LSA-
R. S. 13: 850( 6) is met. See Hunter v. Morton' s Seafood Rest. & Catering, 2008-
1667 ( La. 3/ 17/ 09), 6 So. 3d 152, 156, and P& 3 Contracting of Louisiana,, L. L. C. v.
Department of Education, Recovery School District, 2020- 0674 ( La. App. 1 Cir.
DISCUSSION
Denial of Motion to Strike Reply Brief
Plaintiffs first assignment of error is that the trial court's refusal to strike
Alinsco' s reply brief constituted legal error. Plaintiff maintains that he was denied
procedural due process because he was not afforded a meaningful opportunity to
address substantive legal issues that were raised for the first time in Alinsco's reply
brief.
Louisiana Code of Civil Procedure article 964 governs motions to strike. Article
964 provides:
The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.
Whether a motion to strike should be granted pursuant to Article 964 rests in the
sound discretion of the trial court and is reviewed under the abuse of discretion
standard. Cole v. Cole, 2018- 0523 ( La. App. I Cir. 9/ 21/ 18), 264 So. 3d 537, 544.
Motions to strike are disfavored and infrequently granted. This is because striking a
portion of a pleading is a drastic remedy, and because motions to strike are often
sought by the movant simply as a dilatory tactic. However, a motion to strike is proper
if it can be shown that the allegations being challenged are so unrelated to a plaintiff's
claims as to be unworthy of any consideration and that their presence in the pleading
would be prejudicial to the moving party. A motion to strike is a means of clearing up
the pleadings, not a means of eliminating causes of action or substantive allegations.
Id.
As set forth above, plaintiff requested that the trial court strike Alinsco' s reply
brief on the basis that it improperly exceeded the scope of the arguments raised in
Alinsco' s previously filed exception of prescription. More specifically, while Alinsco' s
exception contended that the December 23, 2020 e -filing was facially prescribed,
Alinsco' s exception did not address the December 21, 2020 fax filing or the failure to
timely pay the $ 850. 00 fax filing fee required by LSA- R. S. 13: 850( 6).
While plaintiff is correct that Alinsco's reply brief contained arguments not
specifically set forth in its exception of prescription, we cannot say that the argument
regarding untimely payment of the $ 850. 00 fax filing fee was so unrelated to the issue
of prescription as to be unworthy of consideration. See Cole, 264 So. 3d at 544. To the
contrary, whether the $ 850. 00 fax filing fee was timely paid is one of the factors that
determines whether the December 21, 2020 fax filing has force and effect, and whether
the December 21, 2020 fax filing has force and effect is determinative of the issue of
prescription. Moreover, we cannot say that plaintiff was prejudiced by the argument
regarding untimely payment of the $ 850. 00 fax filing fee -10 See Cole, 264 So. 3d at 544.
10 We further note that Uniform Rules of District Courts Rule 9. 9( d) requires only that a reply memorandum be " furnished to the trial judge and served on all other parties so that it is received before 4: 00 p. m. on a day that allows one full working day before the hearing." Alinsco' s reply brief was filed on
7 To the extent that plaintiff argues he was deprived of any meaningful opportunity to
respond to the new arguments raised in Alinsco' s reply brief, we point out that plaintiffs
opposition to the exceptions of prescription asserted that the December 21, 2020 fax
filing was effective because the subsequent e -filed petition complied with the LSA- R. S.
13: 850( 6) requirement of delivery of the original pleading. Thus, although delivery of
the original pleading and delivery of the filing fees are separate requirements, plaintiff
nonetheless explicitly raised the issue of whether the December 21, 2020 fax filing
satisfied the requirements of LSA- R. S. 13: 850( 6) in his opposition before Alinsco filed its
reply brief. Further, Alinsco submitted emails that demonstrated that counsel for
plaintiff was aware of the argument regarding untimely payment of the $ 850. 00 fax
filing fee nearly two months before Alinsco raised the issue in its reply brief. This
assignment of error lacks merit.
Denial of Motion to Continue
Plaintiff's second assignment of error is that, having denied plaintiff's motion to
strike Alinsco's reply brief, the trial court's refusal of plaintiffs alternative request to
continue constituted an abuse of discretion. Plaintiff maintains that he was denied an
opportunity to obtain evidence material to his case and to properly respond to new
substantive 'issues raised in Alinsco's reply brief. Plaintiff further argues that because
Alinsco fax filed its reply brief two days before the July 14, 2021 hearing, the trial court
should not have considered the reply brief. Finally, plaintiff argues that a continuance
would not have harmed any party.
The trial court may grant a continuance on peremptory or discretionary grounds.
LSA- C. C. P. arts. 1601 and 1602. There are only two peremptory grounds: ( 1) the party
seeking the continuance, despite due diligence, has been unable to obtain material
evidence; or ( 2) a material witness is absent without the contrivance of the party
applying for the continuance. LSA- C. C. P. 1602. The moving party has the burden of
showing that he met the requirements set forth in LSA-C. C. P. art. 1602. Sullivan v.
City of Baton Rouge, 2014- 0964 ( La. App. 1 Cir. 1/ 27/ 15), 170 So. 3d 186, 192. When
July 12, 2021, and there is no argument made that the reply brief was not received before 4: 00 p. m. Thus, it appears that Alinsco's reply brief complied with the requirements of Rule 9. 9( d). the conditions of Article 1602 are met, the granting of a continuance is mandatory. The
policy behind the mandatory continuance is to insure that a party is not deprived of his
or delinquency. Id.
Here, the initial hearing date set for Alinsco' s exception of prescription was
continued pursuant to plaintiffs unopposed motion to continue, which was filed on June
1, 2021. As set forth above, Alinsco submitted emails dated from May 21 through June
3, 2021, wherein counsel for Alinsco, counsel for Peak, and counsel for plaintiff
discussed whether the $ 850. 00 fax filing fee was timely paid. The record before us does
not reflect that plaintiff offered any evidence demonstrating that he could not, despite
due diligence, obtain material evidence in the six weeks between the emails and the
July 14, 2021 hearing, and plaintiff does not attempt to argue that a material witness
was absent. Thus, plaintiff did not satisfy his burden of proof to establish peremptory
grounds for a continuance.
Absent peremptory grounds, a continuance rests within the sound discretion of
the trial court. City of Bogallusa v. Moses, 2020- 0165 ( La.App. 1 Cir. 4/ 16/ 21), 323
So. 3d 404, 407. Louisiana Code of Civil Procedure article 1601 provides for a
continuance " if there is good ground therefor." The trial court must consider the
particular facts of a case when deciding whether to grant or deny a continuance. The
trial court has great discretion in granting or denying a continuance under Article 1601,
and its ruling should not be disturbed on appeal in the absence of a clear abuse of
discretion. City of Bogalusa, 323 So3d at 407. Having thoroughly considered the
record before us, we cannot say that the trial court abused its great discretion in
denying plaintiffs motion to continue. This assignment of error lacks merit. Grant of the Exception of Prescription
Plaintiff's third assignment of error is that the trial court erred in granting the
exception of prescription. While plaintiff acknowledges that arguments of counsel are
not evidence, he maintains that his counsel' s arguments during the July 14, 2021
hearing demonstrate a good faith attempt to comply with LSA- R.S. 13: 850. Plaintiff
asserts that his counsel believed the clerk of court would collect any fees owed through
i a credit card put on file at the time of the December 23, 2020 e -filing, because putting
the credit card on file effectively constituted a " blank check." Plaintiff further contends
that given more time to conduct discovery, he could provide evidence which would
support his counsel' s arguments, such as evidence regarding the trial court's rules, the
clerk of court's procedures, and the intake and filing of this case in particular.
Plaintiff's tort suit is subject to the one- year liberative prescription for delictual
actions, which commences to run from the day injury or damage is sustained. LSA- C. C.
art. 3492. The accident giving rise to plaintiffs suit occurred on December 21, 2019.
Therefore, the issue of whether plaintiffs December 21, 2020 fax filing has full force
and effect pursuant to LSA- R. S. 13: 850( 6) is determinative of the exception of
prescription: if the December 21, 2020 fax filing has full force and effect, plaintiff's
claims were filed timely; however, if the December 21, 2020 fax filing is not given full
force and effect, then only the purported original pleading delivered to the clerk of
court' s office — in this case, the December 23, 2020 e -filing — has full force and effect,
and plaintiff's claims were prescribed at the time suit was instituted. See P& J
Contracting of Louisiana,, L. L.C., 318 So. 3d at 886.
Generally, the party pleading prescription bears the burden of proving that the
claim has prescribed. However, if prescription is evident on the face of the pleadings,
the burden shifts to the plaintiff to show that the action has not prescribed. Campo v.
Correa, 2001- 2707 ( La. 6/ 21/ 02), 828 So. 2d 502, 508. Plaintiff argues that Alinsco
bore the burden of proof on the exception because Alinsco was the exceptor and
because the December 21, 2020 fax filing was not facially prescribed. While plaintiff is
correct that the December 21, 2020 fax filing was not prescribed on its face, the
December 23, 2020 e -filing, which was the subject of the exception of prescription, was
facially prescribed. Further, within the context of LSA- R. S. 13: 850, the Louisiana
Supreme Court has stated:
The date when an original document and fees have been forwarded to the Clerk' s Office is a fact to be proved by the sender. The sender must establish, by a preponderance of the evidence, that the original document and required fees have been forwarded to the Clerk's Office in the time set forth in the statute.
10 Hunter, 6 So. 3d at 156. 11 Thus, plaintiff bore the burden of proving, by a
preponderance of the evidence, that the action had not prescribed.
Appellate review of a judgment ruling on an exception of prescription depends
on the manner in which the exception is heard. Alliance Hospitality, L. L. C. v.
Esquivel, 2020- 0807 ( La. App. 1 Cir. 2/ 24/ 21), 322 So. 3d 253, 255. When evidence is
introduced at the hearing on a peremptory exception of prescription, the trial court's
findings of fact are subject to the manifest error -clearly wrong standard of review. See
Newton v. St. Tammany Fire District No. 12, 2020- 0797 ( La.App. 1 Cir. 2/ 19/ 21),
318 So. 3d 206, 210. Under this standard, the appellate court must determine not
whether the trier of fact was right or wrong, but whether the trial court's conclusion
was a reasonable one. If the trial court' s findings are reasonable in light of the record
reviewed in its entirety, the appellate court may not reverse, even though convinced
that had it been sitting as the trier of fact, it would have weighed the evidence
differently. 12 Clifford v. OLOL Regional Medical Center, 2018- 1483 ( La. App. 1 Cir.
5/ 31/ 19), 277 So. 3d 1210, 1213. In this matter, evidence was introduced at the July
14, 2021 hearing. Consequently, our review of the trial court's judgment granting
Alinsco' s exception of prescription is subject to the manifest error standard of review.
With these principles in mind, we consider the record before us.
The transcript of the July 14, 2021 hearing reflects that plaintiff's counsel
asserted that he contacted the clerk of court regarding the December 23, 2020 e -filing,
because e -filing was relatively new and he wanted " to find out exactly what we needed
to do." Plaintiff's counsel explained that it was his understanding, based on his phone
call with the clerk of court's office, that placing a credit card on file in connection with
11 We note that after the Supreme Court' s decision in Hunter, LSA- R. S. 13: 850 was amended by Acts 2016, No. 109, § 1, effective August 1, 2016. However, the amendments did not result in any substantive changes that could be construed to affect the Hunter Court' s statement regarding the burden of proof. Further, subsequent to the effective date of the amendments, this Court and the Third Circuit have both cited Hunter on this point. See Nationstar Mortgage, LLC v. Welborn, 2018- 1734 ( La. App. 1 Cir. Relators failed to carry their burden of proving that the 4/ 5/ 19), 2019 WL 1546857 at * 1 ( unpublished) (" notice of intent to apply for supervisory writ sent to the trial court by facsimile transmission on Monday, October 8, 2018 meets the requirements of [ LSA- R. S.] 13: 850,") citing Hunter; see also Bize v. Larvadain, 2018- 394 ( La. App. 3 Cir. 12/ 28/ 18), 263 So. 3d 584, 604, writ denied, 2019- 0419 ( La. 5/ 6/ 19), 270 So. 3d 577.
12 However, where the issue of prescription turns upon the proper application and interpretation of statutory law, the exception presents a question of law subject to the de novo standard of review. Under the de novo standard of review, judgment is rendered on the record, without deference to the legal conclusions of the tribunal below. Newton, 318 So. 3d at 210.
11 the December 23, 2020 e -filing was sufficient to complete payment of the fees
associated with both the December 21, 2020 fax filing and the December 23, 2020 e -
filing. Thus, he placed a credit card '**on file for any fees that were due," and "[ t] hey
charged the card[,] and they said we' ll get back with you and let you know whatever
the costs are." He maintained that "[ i] n no way were we under the assumption that
what we were doing was not right." In support of these contentions, plaintiff offered a
document that reflected that a petition for damages was submitted for e -filing on
December 23, 2020, at 12: 09 p. m., and was accepted on December 28, 2020 at 12: 32
p. m. The same document reflected payment of $ 7. 20 for " E -File Fees" and " Payment
Service Fees." Plaintiff additionally offered a series of emails from the clerk of court to
plaintiffs counsel, dated January 27, 2021, January 29, 2021, and February 10, 2021.
The emails reflected both that the clerk of court received the December 21, 2020 fax
filing, and that the associated fees had not been paid as of February 10, 2021. 13
Plaintiffs counsel stated that he was diagnosed with Covid- 19 on January 20, 2021, and
was out of his office when the initial emails were sent. 14
Following arguments, the trial court questioned plaintiff's counsel briefly. The
following colloquy occurred:
THE COURT:
Is there any indication that you did not receive the fax confirmation?
PLAINTIFF' S COUNSEL]:
No, ma' am.
13 A January 27, 2021 email from a Finance Deputy Clerk of the St. Tammany Parish Clerk of Court' s Office to plaintiff's counsel stated:
I have a Petition' s ( sic) that were faxed filed ( sic) on 12/ 21/ 2020 and e -filed 12/ 23/ 2020 to be served by East Baton Rouge Parish through the Secretary of State for case # 2020- 15498. The services were not paid for through e -filing, and there is no money in the trust account. In order for this to be served[,] the St. Tammany Parish Clerk of [ C] ourt will need the funds deposited for this case in the amount of $ 850. 00. Please call 985- 809- 8733 and reference the case number and the party to pay by credit card. If you have any questions please let me know.
A second email dated January 29, 2021, read in pertinent part, "[ P] lease see the e- mail below in reference to cost for case 2020- 15498." A third email, dated February 10, 2021, read in pertinent part, Just letting you know we have not received any money to pay for the services for three Petition' s ( sic) though ( sic) East Baton Rouge Parish. Please let us know if you still want these services to be served." 14 The trial court noted that the issue of the credit card was not mentioned in plaintiffs pleadings filed prior to the hearing.
12 THE COURT:
So you received the fax confirmation[?]
Yes, ma' am.
Where they tell you they've gotten it, send the amount due of 850[. 00], and [ they] provid[ ed] a copy of [ LSA- R. S. 13: 850]; you received that?
Do you have any proof that you paid $ 850[. 00] within that seven- day period?
No, Your Honor.
So the only proof of payment that I have would be the [ December 28, 2020] fee for $ 7. 20?
Your Honor, we paid it on [ December 23, 2020], it just wasn' t accepted until [ December 28, 2020].
And what you paid was $ 7. 20; is that correct?
Yes, what they asked us to pay.
The trial court found that plaintiff failed to deliver the $ 850. 00 fax filing fee
within seven days of the December 21, 2020 fax filing and therefore failed to comply
with the requirements of LSA- R. S. 13: 850( 6), rendering the December 21, 2020 fax
filing without force and effect. Accordingly, the trial court granted the exceptions of
On appeal, plaintiff contends that the trial court placed an insurmountable onus
on plaintiff by expecting him to overcome newly raised substantive legal arguments and
new exhibits filed two days before the July 14, 2021 hearing. Plaintiff argues that this
constituted error because he attempted to timely file his petition using a fully authorized
13 method prior to the end of the prescriptive period. In support of plaintiff's arguments,
he relies on the Supreme Court's decision in Stevenson v. Progressive Security
Insurance Company, 2019- 00637 ( La. 4/ 3/ 20), _ So. 3d _, _, 2020 WL
1671565, and this Court's decision in Worm v. Berry Barn, LLC, 2020- 1086 ( La. App.
I Cir. 10/ 21/ 21), 332 So. 3d 86.
In Stevenson, the plaintiffs attempt to fax file failed because the clerk of court
had turned its fax machine off at 4: 30 p. m., the end of its business day. The Supreme
Court wrote:
It is a plaintiff's attempt to fax file with the clerk prior to the midnight prescription deadline that is relevant. As in [ Lloyd v. Monroe Transit Auth. ex rel. City of Monroe, 50, 292 ( La. App. 2 Cir. 1/ 13/ 16), 185 So. 3d 866, 870, writ denied, 2016- 0277 ( La. 4/ 8/ 16), 191 So. 3d 585], we
decline to put the onus on plaintiffs to find another method of filing the petition when fax filing is a fully authorized method and counsel attempted to use that method before the prescriptive period ended.
Stevenson, — So. 3d at _, 2020 WL 1671565 at * 6.
In Worm, the plaintiff's fax filed petition and the original petition were not
identical. Specifically, the top portions of the first and second pages as well as the
bottom portion of the second page were " cut off" in the fax filed petition, thereby
eliminating some of the substance of plaintiffs allegations. Worm, 332 So. 3d at 87.
This Court agreed with the trial court's reasoning that " the apparent error in receipt and
printing of plaintiffs fax filed petition by the [ c] lerk of [ c] ourt was attributable to
machine error and was not to be something within the power of the plaintiff to
prevent." Worm, 332 So. 3d at 90. Relying on Stevenson, this Court wrote:
Recognizing that prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished .. . we decline to put the onus on the plaintiff where fax filing is a fully authorized method, and the uncontroverted evidence presented at the hearing on the defendants' exception was that plaintiff' s counsel properly and timely used the fax filing method before the prescriptive period ended. See Stevenson, — So. 3d at —, 2020 WL 1671565, at * 6. Based on the facts of this case, we find that plaintiffs fax filed petition was sufficient to interrupt prescription. Thus, the trial court erred in sustaining defendants' objection of prescription.
Worm, 332 So. 3d at 90.
Stevenson and Worm, we find these cases to be Having considered
fistinguishable from the instant matter. Both Stevenson and Worm consider
instances when the plaintiff was prevented from timely fax filing a petition by
14 circumstances out of the plaintiff's control. In contrast, this case concerns a plaintiffs
failure to timely deliver filing fees, and the plaintiff was not prevented from delivering
the filing fees by circumstances outside of his control. We find the case before us more
analogous to Petit -Blanc v. Charles, 2021- 00094 ( La. 4/ 20/ 21), 313 So. 3d 1245 ( per
curiam).
In Petit -Blanc, the plaintiff fax filed her petition on November 13, 2019, and
placed her original petition and filing fees in the mail on November 14, 2019. The clerk
of court did not receive the original petition and filing fees until November 25, 2019,
outside the seven day deadline. Petit -Blanc, 313 So. 3d at 1246. Considering the facts
of the case in light of the recently amended language of LSA- R. S. 13: 580, the Supreme
As originally enacted [ LSA- R. S.] 13: 850( 6) required that the party filing the document " shall forward" the original document and fees to the clerk within seven days of the facsimile transmission. In Hunter v. Morton' s Seafood Rest. & Catering, [ 20] 08- 1667 ( La. 3/ 17/ 09), 6 j6o. 3d 152, 156, we interpreted the term " forward" to mean the litigant must only send or transmit the document to the clerk, explaining "[ t] he definition of this term does not include the concept of ' delivery' or
receipt."'
In 2016, the legislature amended [ LSA- R. S.] 13: 850( B) by Acts 2016, No. 109, eff. August 1, 2016. As currently drafted, the statute provides the party shall " deliver," the original document to the clerk within seven days of the facsimile transmission. Black's Law Dictionary ( 6th Ed. 1990) defines " delivery" as "[ t] he act by which the res or substance thereof is placed within the actual or constructive possession or control of another." Citing this definition, the court of appeal in Clark v. Wal- Mart Stores, Inc., [ 20] 18- 0052 ([ La. App.] 5 Cir. 10/ 31/ 18), 259 So. 3d 516, held a petition was " delivered" to the clerk of court when a clerk' s office employee signed a green card for plaintiffs certified mail.
In the present case, plaintiff asserts she sent her original document to the clerk's office sometime prior to the November 22, 2019 [ deadline], but she cannot establish the petition was placed in the actual or constructive possession of the clerk's office at any time prior to November 25, 2019. Considering the 2016 amendment to the statute, we must
conclude merely transmitting an original document within the deadline is insufficient; rather, the litigant must establish the document was delivered to the clerk within the deadline. Plaintiff has not done so here.
Petit -Blanc, 313 So. 3d at 1246- 47. Thus, because the plaintiff failed to establish
timely delivery and compliance with the procedures set forth in LSA- R. S. 13: 850( B), the
Supreme Court found that her fax filing was without force and effect pursuant to LSA-
R. S. 13: 850( C), and could not serve to interrupt the prescriptive period.
15 As set forth above, the plaintiff in Stevenson could not prevent the clerk of
court from turning its fax machine off at the close of its business day, and the plaintiff
in Worm could not prevent the machine error that cut off portions of his petition. In
both cases, the plaintiff attempted to transmit the initial fax filing as provided for in
LSA- R. S. 13: 850( A), but was prevented from doing so by an obstacle completely out of
the plaintiffs control, or " something [ not] within the power of the plaintiff to prevent."
See Worm, 332 So. 3d at 90. This is significantly distinguishable from the present
matter and Petit -Blanc, wherein the plaintiff initiated an attempt to timely comply with
the delivery requirements of LSA- R. S. 13: 850( 6), but failed to do so. In Petit -Blanc,
the plaintiff mailed her original petition and filing fees, which did not guarantee timely
delivery and receipt. Similarly, in this matter, plaintiff placed a credit card on file, which
he argued allowed for amounts to be charged to the credit card; however, plaintiff did
not specifically direct the clerk of court to charge the $ 850. 00 fax filing fee to the credit
card within the seven days allowed by statute, nor did he confirm that the $ 850. 00 fax
filing fee had been charged to the credit card within the applicable time delays.
Although Petit -Blanc is factually distinguishable from the matter before us, both
instances involve a failure to establish compliance with the delivery requirements of
LSA- R. S. 13: 850( 6). Thus, we find the Petit -Blanc analysis to be instructive, and
conclude that the December 21, 2020 fax filing was without force and effect and did not
interrupt prescription. Because the record before us provides support for the trial court's
finding, we cannot say that the trial court's findings lacked a reasonable basis, and we
are precluded from reversing the trial court's judgment. See Clifford, 277 So. 3d at
1213. This assignment of error lacks merit.
Grant of the Exception of Prescription as to Mr. Hernandez
Plaintiff's fourth assignment of error is that the trial court erred in granting the
exception of prescription as to Mr. Aguilar, who had not made an appearance in the
case, pled the exception, or requested relief. We agree.
Proper citation is the foundation of all actions and actual knowledge of the
existence of an action is no substitute for proper service of citation. Sam v. Feast,
2000- 1163 ( La. App. 1 Cir. 3/ 28/ 01), 802 So. 2d 680, 683. Without valid citation and
16 service of process, the court does not have jurisdiction over the person of the
defendant. Id. Further, without citation and service, all proceedings are an absolute
nullity. LSA- C. C. P. art. 1201( A); New Orleans & Baton Rouge Steamship Pilots
Association v. Wartenburg, 2020- 0193 ( La. App. 1 Cir. 11/ 12/ 20), 316 So. 3d 39, 42.
When the appellate court notices an absolute nullity, the court is empowered to vacate
or correct the judgment on its own motion. New Orleans & Baton Rouge
Steamship Pilots Association, 316 So. 3d at 42. However, a defendant may
expressly waive citation and service thereof by any written waiver made part of the
record. LSA- C. C. P. art. 1201( B). Additionally, although the waiver through a general
appearance has been eliminated from our law by the repeal of LSA- C. C. P. art. 7, a party
can nevertheless waive an objection to the jurisdiction by an appearance of record.
Sam, 802 So. 2d at 683. Appearance of record includes filing a pleading, appearing at a
hearing, or formally enrolling as counsel of record. See LSA-C. C. P. art. 1671, Comment-
1997.
During the July 14, 2021 hearing, after the trial court indicated that Alinsco and
Peak's exceptions of prescription would be granted, counsel for Alinsco requested that
the judgment of prescription " include the entire case." More specifically, counsel for
Alinsco explained that the exception of prescription had been brought only on behalf of
Alinsco because Alinsco' s insured had not been served and had not made an
appearance in the suit; however, " because if it' s prescribed to one it's prescribed to all,"
Alinsco requested that the judgment sustaining the objection of prescription extend to
Alinsco' s insured as well as to Alinsco. 15The trial court stated, "[ a] ny defendant that
you represent or that you' re contractually obligated to represent through a contract of
insurance, the Exception of Prescription will be sustained." Counsel for Peak then joined
in Alinsco' s request, and asked that the judgment sustaining the objection of
prescription extend to Peak' s insured, who also had not been served and had not made
an appearance in the suit. The trial court replied, " I understood that you were arguing
15 Counsel for Alinsco initially requested that Allstate also be included in the judgment granting the exception of prescription, but the trial court rejected the request.
17 on behalf of everyone that you represented or that you' re contractually obligated to
represent on your exception."
It is undisputed that Mr. Aguilar was never cited and served; nor did he make an
appearance of record, or expressly waive citation and service by a written waiver made
part of the record. Thus, the trial court erred in granting the exception of prescription in
favor of Mr. Aguilar. Further, the plea of prescription must be specifically pleaded and
may not be supplied by the court. LSA- C. C. P. art. 927( 6); Bailey v. Loewe, 2019- 1201
La. App. I Cir. 7/ 23/ 20), 309 So. 3d 355, 360, writ denied, 2020- 01146 ( La. 11/ 18/ 20),
expressly precluded from supplying the plea for him. Accordingly, we vacate that
portion of the judgment granting the exception of prescription in favor of Mr. Aguilar.
See Wills v. National Automotive Insurance, 41, 034 ( La. App. 2 Cir. 4/ 12/ 06), 926
So. 2d 771, 774 ( vacating judgment in concursus proceeding that awarded settlement
funds to several entities who were never cited and served).
XOHO- PUGIWE
For the foregoing reasons, the portion of the trial court's August 4, 2021
judgment denying the motion to strike, or in the alternative, to continue, is affirmed.
The portion of the judgment granting the exception of prescription filed by Alinsco
Insurance Company and dismissing Mr. Thurman' s claims against Alinsco with prejudice
is affirmed. The portion of the judgment granting the exception of prescription as to
reversed. Costs of this appeal are assessed equally between Alinsco and Mr. Thurman.
AFFIRMED IN PART AND REVERSED IN PART.
W- 0