Judgment rendered May 10, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,091-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
JOHN HILL and NANCY GEORGE, Plaintiffs-Appellants on behalf of their deceased daughter, KAYOMONIQIC GEORGE
VERSUS
STATE FARM MUTUAL Defendants-Appellees AUTOMOBILE INSURANCE COMPANY, TREJO’S PRINCETON, LLC, JUAN MONZON, and FRANCISCO VALDEZ-RAMIREZ
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 78577
Honorable Allen Parker Self, Jr., Judge
JOHN D. & ERIC G. JOHNSON LAW FIRM Counsel for Appellants By: Eric Gerard Johnson
LAW OFFICES OF DAMON D. KERVIN By: Damon D. Kervin
SEABAUGH & SEPULVADO LLC Counsel for Appellees, By: Alan Thomas Seabaugh State Farm Mutual Michael Christopher Melerine Automobile Insurance Paul L. Wood Company and Juan Monzon PHELPS DUNBAR, LLP Counsel for Appellee, By: Douglas M. Kleeman Nautilus Insurance Company
BLANCHARD, WALKER, O’QUIN, Counsel for Appellee, & ROBERTS, APLC Trejo’s Princeton, LLC By: Scott R. Wolf McLaurine H. Zentner
DAVIDSON, MEAUX, SONNIER, Counsel for Appellee, McELLIGOTT, FONTENOT, Alberto Andrade Moya GIDEON & EDWARDS, LLP By: Robert D. Felder Jami L. Ishee James H. Domengeaux, Jr.
Before PITMAN, STEPHENS, and ROBINSON, JJ. STEPHENS, J.
The issue in this survival action/wrongful death action is whether
plaintiffs’ initial petition, which named as defendants the driver, the driver’s
alleged employers, and the employers’ insurer, interrupted prescription
against another employee who was riding in that vehicle but was not added
to the lawsuit until an amending petition was filed more than two years after
the accident. Plaintiffs have appealed from the trial court’s adverse
judgment granting the exception of prescription filed by the later-added
defendant, Alberto Andrade Moya (“Moya”). For the reasons set forth
below, we amend the trial court’s judgment in part, affirm as amended, and
remand the matter for further proceedings in accordance with this opinion.
FACTS/PROCEDURAL BACKGROUND
This action for damages for the survival and wrongful death of
Kayomoniqic George was filed by her parents, John Hill and Nancy George
(“plaintiffs”), on March 27, 2020. Kayomoniqic died as a result of injuries
she sustained in a two-vehicle accident that occurred on November 28, 2019,
around 2:15 p.m. The vehicle she was driving south on US Highway 79 in
Webster Parish, Louisiana, was struck head-on by a northbound drunk
driver, who was attempting to pass another vehicle in a no-passing zone.
Named as defendants were the driver of the 2001 Chevrolet Tahoe that hit
Kayomoniqic, Francisco Valdez-Ramirez (“Valdez-Ramirez”), his alleged
employer, Trejo’s Princeton, LLC (“Trejo’s”), the owner of the vehicle, Juan
Monzon (“Monzon”)1 (Trejo’s was also alleged to be an owner of the
1 Monzon is both an owner and a manager of the Trejo’s which allegedly employed Valdez-Ramirez. vehicle), and the vehicle’s insurer, State Farm Mutual Automobile Insurance
Co. (“State Farm”).
Plaintiffs alleged negligence on the part of Valdez-Ramirez in
operating the vehicle, including being intoxicated, and negligence on the
part of Monzon, for negligent entrustment. Plaintiffs also alleged Monzon
and Trejo’s were negligent in hiring, training, and supervising their alleged
employee, Valdez-Ramirez, as well as contributing to his intoxication and
failing to prevent him from operating the vehicle. In Paragraph 5, plaintiffs
alleged that Valdez-Ramirez was an agent and/or employee under the
supervision of Monzon and/or Trejo’s, and that the actions of Valdez-
Ramirez arose out of and were during the course of his employment for
Monzon and/or Trejo’s. In Paragraph 6 of the petition, plaintiffs
alternatively alleged that, even if Valdez-Ramirez was not an agent or
employee, he operated the Tahoe with the consent of Monzon and/or Trejo’s
and, as such, was covered by any and all liability policies of these
defendants.
Discovery between the parties began. Depositions were taken,
including that of Moya, a passenger in the Tahoe driven by Valdez-Ramirez.
Moya, however, was not added as a defendant until plaintiffs filed an
amending petition on January 13, 2022, in which they alleged that Moya was
also an employee of Monzon and Trejo’s working in the course and scope of
his employment alongside Valdez-Ramirez and Monzon at the time of the
accident. Plaintiffs further alleged that Moya conspired with Valdez-
Ramirez to commit a willful act, and that Moya was jointly negligent
together with Monzon for allowing Valdez-Ramirez onto Trejo’s property,
permitting him to access the restaurant’s vehicle, and furnishing him with 2 alcohol.2 Also added as a defendant in this petition was Nautilus Insurance
Company.
Moya filed an exception of prescription on March 17, 2022, plaintiffs
filed an opposition on April 5, 2022, and the trial court held a hearing on the
2 Paragraph 5 of plaintiffs’ petition was amended to state:
At all times pertinent hereto, VALDEZ-RAMIREZ and ANDRADE [MOYA] were agents and/or employees and/or under the supervision of MONZON and/or TREJO’S, and the actions of VALDEZ-RAMIREZ and ANDRADE [MOYA] arose out of and were during the course of his employment for MONZON and/or TREJO’S and/or while performing duties related to the conduct of MONZON’S and/or TREJO’S business. At all material times, ANDRADE [MOYA] conspired with VALDAZ-RAMIREZ to commit a willful act, and is solidarily liable with VALDEZ- RAMIREZ for Plaintiffs’ damages. MONZON and ANDRADE [MOYA] negligently permitted VALDEZ-RAMIREZ to enter TREJO’S premises, and the risk of harm to Plaintiffs was foreseeable and easily associated with MONZON’S and ANDRADE [MOYA]’S negligence. MONZON and ANDRADE [MOYA] knew or should have known that VALDEZ-RAMIREZ was not competent to operate the 2001 Chevrolet Tahoe. MONZON and ANDRADE [MOYA] negligently permitted VALDEZ-RAMIREZ access to the 2001 Chevrolet Tahoe. MONZON and ANDRADE [MOYA] committed acts of negligence, gross negligence, and reckless disregard for the safety of Plaintiffs in furnishing alcoholic beverages to VALDEZ- RAMIREZ. At all material times, MONZON, VALDEZ- RAMIREZ, and ANDRADE [MOYA] were in the course and scope of their employment with TREJO’S and/or were performing duties related to the conduct of TREJO’S business.
Paragraph 6 was amended to state:
In the alternative, even if VALDEZ-RAMIREZ was not an agent or employee of MONZON and/or TREJO’S, VALDEZ-RAMIREZ operated the 2001 Chevrolet Tahoe, VIN No. [omitted], with the consent of the aforementioned, and as such any and all liability policies of MONZON, TREJO’S, VALDEZ-RAMIREZ, STATE FARM, and NAUTILUS covered VALDEZ-RAMIREZ and TREJO’S employees.
Added to the petition, Paragraph 16 provides:
TREJO’S, MONZON, VALDEZ-RAMIREZ, and ANDRADE [MOYA] are all insured for their liability by NAUTILUS. KAYOMONIQIC’s damages were caused by the negligence of TREJO’S employees (including, without limitation, VALDEZ- RAMIREZ, MONZON and/or ANDRADE [MOYA]) who were acting at all material times within the scope of their employment with TREJO’S and/or while performing duties related to the conduct of TREJO’s business. 3 exception on May 3, 2022. The trial court found that: the allegations made
in the amending petition were insufficient; Moya was neither a joint
tortfeasor nor solidarily liable with the other previously named defendants;
plaintiffs were not entitled to amend their petition further; and, based upon
the above findings, the trial court granted the exception of prescription and
dismissed plaintiffs’ claims against Moya. Judgment granting the exception
of prescription, inter alia, was rendered and signed on May 19, 2022. It is
from this judgment that plaintiffs have appealed.
DISCUSSION
Plaintiffs’ Argument
Plaintiffs’ first two assignments of error are that the trial court erred in
sustaining defendant Moya’s exception of prescription and dismissing as
untimely their claims against him asserted in their amending petition. Their
third assignment of error is related—that the trial court erred in failing to
allow them an opportunity to amend their petition as provided for in La.
C.C.P. art. 934.
According to plaintiffs, their timely filed petition against Valdez-
Ramirez, Monzon, and Trejo’s continuously interrupted prescription against
Moya, who is an additional joint tortfeasor whose fault contributed to
plaintiffs’ damages. Plaintiffs have alleged that the crash which killed
Kayomoniqic was caused by the “combined and joint negligence” of
Valdez-Ramirez, Monzon, Trejo’s, and Moya.
Plaintiffs further contend that they have alleged facts showing that the
combined fault of all four of the above-listed defendants contributed to
Kayomoniqic’s death and plaintiffs’ damages, which is all that is required to
4 plead that these defendants are joint tortfeasors such that a timely suit
against one interrupts prescription against the others.
Plaintiffs assert that the trial court erred in failing to find that their
timely suit against Valdez-Ramirez, Monzon, and Trejo’s within one year of
the accident continuously interrupted prescription on their later claim against
Moya, a joint tortfeasor with the timely sued defendants.
Plaintiffs also argue that their timely suit against Moya’s employers,
Monzon and Trejo’s, continuously interrupted prescription against Moya,
their employee. Plaintiffs further contend that, because they have alleged
both solidary and joint liability as a basis for the interruption of prescription
against Moya, his exception of prescription is premature.
In the alternative, plaintiffs urge that the trial court erred in failing to
allow them an opportunity to amend their petition. Plaintiffs concede that
their claims against Moya will be untimely if the jury finds that the original
defendants are free from fault. However, plaintiffs take the position that it is
premature to dismiss their claims against Moya at this time.
Plaintiffs ask that this Court reverse the judgment of the trial court and
either overrule Moya’s exception of prescription without prejudice or refer
the exception to the merits. Alternatively, plaintiffs ask this Court to permit
them to amend their petition to allege additional facts to show that Moya is a
joint tortfeasor and/or solidary obligor with the timely sued defendants.
Defendant Moya’s Argument
Defendant Moya points out that the accident occurred on November
28, 2019. The amending petition naming him as a defendant was filed on
January 13, 2022, more than two years later. As the claims against Moya are
prescribed on their face, plaintiffs had the burden of establishing that they 5 were not prescribed by either showing that Moya was a joint tortfeasor, a
solidary obligor, or that the claims related back to the original demand.
According to defendant Moya, the trial court did not err in finding that
plaintiffs failed to meet their burden of proof.
Defendants argue that plaintiffs’ claim that prescription was
interrupted because Moya is a joint tortfeasor with other defendants named
in the original petition is not set forth in their amended petition, which fails
to allege any independent act of negligence on Moya’s part. According to
Moya, the conclusory legal statements pled by plaintiffs were insufficient to
allege that he was either a joint tortfeasor or solidary obligor
Plaintiffs’ amending pleading has alleged nothing against Moya on his
own, no duty owed by him and no act that could legally serve as a cause of
the accident when combined with the actions of Monzon, Trejo’s, and
Valdez-Ramirez. Accepting the facts pled in the petitions as true, Moya
cannot be a joint tortfeasor under Louisiana law.
According to plaintiffs, Monzon and Trejo’s owned the restaurant and
the vehicle involved in the collision. The evidence submitted by plaintiffs in
connection with the motion for summary judgment established that Monzon
owned and had control over the vehicle, consented to Valdez-Ramirez
driving the vehicle, and allowed use of the vehicle by all restaurant
employees equally. Moya, as a Trejo’s employee and co-worker of Valdez-
Ramirez, had no ownership, custody, or control over the vehicle and thus no
duty to prohibit access to it. Furthermore, once inside the vehicle, Moya
was just a passenger.
In addition to owing no duty as to the vehicle itself, Moya contends
that he owed no duty and is not liable for controlling the actions of his 6 alleged co-worker, Valdez-Ramirez, or those of his employer, Monzon or
Trejo’s. In their amending petition, plaintiffs are apparently claiming that
Moya should have stopped Valdez-Ramirez from entering Trejo’s and using
the vehicle, and prevented Monzon from authorizing this use. There is no
such duty on the part of Moya, as he has no special relationship with either
his alleged co-worker or employer that would establish vicarious liability for
their actions.
Since there is no duty owed by Moya and no vicarious liability for the
acts of his co-worker or employer, Moya’s actions cannot be a legal cause of
the accident and resulting damages. Thus, he is not a joint tortfeasor with
Valdez-Ramirez, Monzon, or Trejo’s, nor is he solidarily liable with either
or both of these parties.
Plaintiffs alternatively argued that, because Trejo’s and/or Monzon
were named as a defendant in the original petition, prescription was
interrupted for Moya because he was an employee. However, urges Moya, a
generalized allegation against an employer does not automatically interrupt
prescription as to all employees. If there is no duty on the part of a certain
employee such as Moya, there can be no breach and no causation.
At the hearing on the exception of prescription, plaintiffs’ counsel
argued that suit against either an employer or employee interrupted
prescription as to the other. This is true, but only regarding actions by the
specific employee. In this case, that would be Valdez-Ramirez, not Moya,
who was not named in the original petition. The original petition alleged
negligent hiring, training and supervision by Trejo’s—actions for which
Moya cannot be liable.
7 Under Louisiana law, Moya is not vicariously liable for, and cannot
be solidarily liable for, the acts of his employer or alleged co-worker
because there is no special relationship. There is no legal connection
between Moya and his employer or his co-worker which would create a joint
tortfeasor or solidary obligor relationship to interrupt prescription. With no
joint tortfeasor or solidary obligor relationship, there was no interruption,
asserts Moya. Furthermore, there was no valid explanation for plaintiff’s
delay in naming Moya as a defendant.
According to Moya, there is also no solidary liability for any alleged
conspiracy. Plaintiffs have claimed that Moya conspired with Valdez-
Ramirez to commit a willful act and is solidarily liable; however, no willful
act is identified, and no facts regarding conspiracy are pled or contained
within the record. Thus, the conclusory assertions are insufficient to
establish solidarity.
Analysis
The standard of review of a trial court’s ruling on an exception of
prescription depends on whether evidence is introduced. When, as in this
case, no evidence has been introduced at a hearing on an exception of
prescription, all allegations of the petition(s) are to be accepted as true.
Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-0061 (La. 10/10/21),
333 So. 3d 368; Anding o/b/o Anding v. Ferguson, 54,575 (La. App. 2 Cir.
7/6/22), 342 So. 3d 1138; Evans v. Heritage Manor Stratmore Nursing &
Rehabilitation Center, L.L.C., 51,651 (La. App. 2 Cir. 9/27/17), 244 So. 3d
737, writ denied, 17-1826 (La. 12/15/17), 231 So. 3d 639.
Delictual actions are subject to a liberative prescription of one year
which runs from the day injury or damage is sustained. La. C.C. art. 3492. 8 If a petition has prescribed on its face, the burden shifts to the plaintiff to
show that the action has not prescribed. Davis v. State through Louisiana
Racing Commission, 20-1020, pp. 3-4 (La. 5/13/21), 320 So. 3d 1028, 1032;
Campo v. Correa, 01-2707, p. 7 (La. 6/21/02), 828 So. 2d 502, 508; City
Life Live, L.L.C. v. Post Office Employees Federal Credit Union, 52,616, p.
5 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1251, 1254, writ denied, 19-00751
(La. 9/17/19), 279 So. 3d 376.
It is undisputed that prescription on plaintiffs’ tort action had run at
the time of their amending petition’s filing on January 13, 2022. However,
prescription is interrupted when, inter alia, suit is timely filed in a court of
competent jurisdiction and venue. La. C.C. art. 3462. Such was the case
with plaintiffs’ original petition against defendants Monzon, Trejo’s,
Valdez-Ramirez, and State Farm.
An interruption of prescription against one solidary obligor is
effective against all other solidary obligors, and the interruption continues
while the suit is pending. La. C.C. arts. 1799, 3503; Glasgow v. PAR
Minerals Corp., 10-2011 (La. 5/10/11), 70 So. 3d 765; Picone v. Lyons, 601
So. 2d 1375, 1377 (La. 1992); Perkins v. Willie, 03-0126, p. 4 (La. App. 1
Cir. 4/2/04), 878 So. 2d 574, 576. An interruption of prescription against
one joint tortfeasor is effective against all joint tortfeasors. La. C.C. art.
2324(C); Hines v. Browning-Ferris, Inc., 46,577, p. 4 (La. App. 2 Cir.
9/21/11), 73 So. 3d 479, 482, writ denied, 11-2340 (La. 12/2/11), 76 So. 3d
1180; Perkins, supra.
In this case, plaintiffs’ basis for asserting an interruption of
prescription is that Moya, the newly added defendant, is a joint tortfeasor
and/or is solidarily obligated with defendants who were timely sued. Thus, 9 plaintiffs must, for purposes of defeating an exception of prescription,
sufficiently allege that Moya has joint tortfeasor and/or solidary obligor
status with these defendants. See, Rizer v. American Surety and Fidelity
Insurance Co., 95-1200, pp. 2-3 (La. 3/8/96), 669 So. 2d 387, 388-89; Iles v.
State Farm Mutual Automobile Insurance Co., 18-276, p. 3 (La. App. 3 Cir.
11/7/18), 258 So. 3d 850, 852, writ denied, 18-2016 (La. 2/11/19), 263 So.
3d 1152; Wheat v. Nievar, 07-0680, p. 4 (La. App. 1 Cir. 2/8/08), 984 So. 2d
773, 775.
A joint tortfeasor is defined as a party whose conduct, whether
intentional or negligent, combines with another party and causes injury to a
third party. La. C.C. art. 2324; Milbert v. Answering Bureau, Inc., 13-22
(La. 6/28/13), 120 So. 3d 678, 688; Greer v. Johnson, 37,655, p. 5 (La. App.
2 Cir. 9/24/03), 855 So. 2d 898, 901. The term “joint tortfeasor” may be
applied both to the situation where two or more persons are acting in concert
or where “[t]he negligence of concurrent tortfeasors . . . occurs or coalesces
contemporaneously,” to produce an injury. Milbert, supra. Joint tortfeasors
are solidarily liable for the damage they cause when they conspire to commit
an intentional or willful act. La. C.C. art. 2324(A); Milbert, supra. If
liability is not solidary because the actions of joint tortfeasors are not
intentional or willful, then liability for the damages caused by two or more
persons is a joint and divisible obligation. La. C.C. art. 2324(B); Milbert,
supra at 688-89. Under Louisiana’s comparative fault system, “the fault of
every person responsible for a plaintiff’s injuries must be compared, whether
or not they are parties, regardless of the legal theory of liability asserted
against each person. Milbert, supra, citing Dumas v. State ex rel. Dept. of
10 Culture, Recreation & Tourism, 02-0563, p. 11 (La. 10/15/02), 828 So. 2d
530, 537. See also La. C.C. art. 2323.
In Wheat, supra, the plaintiff, an automobile accident victim, sought
to add the sheriff as a defendant to a timely filed suit more than a year after
the accident. An exception of prescription filed by the sheriff was sustained
by the trial court. The First Circuit reversed the trial court’s judgment
dismissing the suit against the sheriff’s office and remanded the matter. In
doing so, the appellate court found:
In the instant case, the plaintiff alleged in the amending petition that the Sheriff’s Office “contributed” to his damages. More importantly, plaintiff alleged specific acts that, when taken as true, were at least minimally sufficient to assert some fault on the part of the Sheriff’s Office, which leads to the status of joint tortfeasor with one or more of the original defendants. For example, reading both petitions together, Mr. Wheat alleged that the “[f]ailure to properly position authorized units in an appropriate place for warning oncoming motorists of impending danger ahead,” combined with the driver’s act of being unable to stop after cresting the overpass, caused the damage. Based on those allegations and others alleged in the petitions, read in light of the applicable jurisprudence, we must find that the timely filed suit against the original one or more joint tortfeasors interrupted prescription against the Sheriff’s Office[.] Of course, this in no way establishes or predicts the plaintiff’s ability to prove that any actions by the Sheriff’s Office actually contributed to the plaintiff’s damages.
Id. at pp. 6-7, p. 777. The key difference between Wheat, supra, and the
instant case is that in this case, there are no allegations of specific acts on the
part of the newly added defendant to support his status as a joint tortfeasor
or solidary obligor. To properly allege joint liability, plaintiffs must do
more than merely assert such a relationship. See, Jones v. Iberia Parish
Government, 18-34, pp. 5-6 (La. App. 3 Cir. 9/26/18), 257 So. 3d 198, 201-
02. See also, Milbert, supra; McKenzie v. Imperial Fire and Casualty Ins.
Co., 12-1648, p. 7 (La. App. 1 Cir. 7/30/13), 122 So. 3d 42, 48. There must
11 be allegations of specific facts on the part of the newly added defendant that,
when taken as true for purposes of defeating an exception of prescription,
are sufficient to assert a joint tortfeasor and/or solidary obligor relationship
between that defendant and at least one of the timely sued defendants.
We agree with defendant Moya that the trial court’s ruling on his
exception of prescription, made solely on the face of the original and
amending petitions since the parties introduced no evidence in support or
opposition thereof, is legally sound. While plaintiffs have alleged a joint
tortfeasor and/or solidary obligor relationship between Moya and the timely
sued defendants, they have not backed up these broad, sweeping allegations
with any specific facts. As they stand, plaintiffs’ allegations against Moya
are insufficient, and therefore, this Court will affirm the trial court’s
judgment sustaining the exception of prescription.
However, our analysis does not end here. La. C.C.P. art. 934
provides:
When the grounds of the objection pleaded by the peremptory objection may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.
As noted by the supreme court in Reeder v. North, 97-0239, p. 15 (La.
10/21/97), 701 So. 2d 1291, 1299, the law takes a liberal approach toward
allowing amended pleadings to promote the interests of justice. In Breland
v. Willis Knighton Medical Center, 51,150, p. 6 (La. App. 2 Cir. 2/15/17),
212 So. 3d 724, 727, this Court cited Whitnell v. Menville, 540 So. 2d 304,
304 (La. 1989), wherein the Louisiana Supreme Court recognized that
“where the plaintiff has raised allegations in argument which might be 12 sufficient to overcome a peremptory exception of prescription, he should be
allowed time to amend his petition to assert such allegations, even though
the claim asserted in the original petition is prescribed on its face.”
The court in Whitnell further observed that it is not necessary to allow
plaintiff time to amend if he cannot even point out possible grounds
sufficient to overcome the exception, but a court may allow time to amend if
the new allegations raise the possibility that the claim is not prescribed, even
if the ultimate outcome of the prescription issue, once the petition is
amended, is uncertain. Id. at 309 (citing H & H Boat Rental, Inc. v. Vidos,
225 So. 2d 308, 310 (La. App. 1 Cir. 1960); Craig v. Housing Authority of
New Orleans, 482 So. 2d 148, 149 (La. App. 4 Cir. 1986)). Breland, supra
at pp. 6-7, pp. 727-28. See also, Quinn v. Louisiana Citizens Property Ins.
Corp., 12-0152, pp. 19-20 (La. 11/2/12), 118 So. 3d 1011, 1023; Wyman v.
Dupepe Construction, 09-0817, p. 1 (La. 12/1/09), 24 So. 3d 848, 849.
Unless it can be determined in advance of the amendment that the new
allegations could have no effect on the prescription issue, then an
opportunity to amend should be allowed. Whitnell, supra (citing Drane v.
City of New Orleans, 328 So. 2d 752, 754, n. 2 (La. App. 4 Cir. 1976));
Breland, supra at p. 7, p. 728; Scott v. Zaheri, 14-0726, p. 15 (La. App. 4
Cir. 12/3/14), 157 So. 3d 779, 788.
We find that the trial court erred in denying plaintiffs an opportunity
to amend their petition in this case. The likelihood of plaintiffs’ success on
the merit of their claims against defendant Moya is not determinative as to
the issue of whether they should be allowed to amend their petition to flesh
out and fully allege said claims. Instead, the only issue is whether allowing
them to amend the petition to properly state the claims could have an effect 13 on the issue of prescription. In accordance with La. C.C.P. art. 934, we will
allow plaintiffs to amend their petition to cure their prescription problem if
they can. This case will be remanded to the trial court to afford plaintiffs the
opportunity to amend their petition.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is amended in
part with instructions, and as amended, is affirmed. This matter is remanded
to the trial court for further proceedings in accordance with this opinion.
Costs of this appeal are assessed equally to plaintiffs, John Hill and Nancy
George, on behalf of their deceased daughter, Kayomoniqic George, and to
defendant, Alberto Andrade Moya.
AMENDED IN PART, AND, AS AMENDED, AFFIRMED;
REMANDED.