Morgan v. Investment Cars Unlimited, Inc.

843 So. 2d 580, 2003 La. App. LEXIS 1053, 2003 WL 1825445
CourtLouisiana Court of Appeal
DecidedApril 9, 2003
DocketNo. 37,052-CA
StatusPublished
Cited by3 cases

This text of 843 So. 2d 580 (Morgan v. Investment Cars Unlimited, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. Investment Cars Unlimited, Inc., 843 So. 2d 580, 2003 La. App. LEXIS 1053, 2003 WL 1825445 (La. Ct. App. 2003).

Opinion

_[iMQORE, J.

Francis Morgan appeals a judgment that dismissed her suit on an exception of prescription in favor of the defendant, TriState Foods L.P. d/b/a County Market 9304. We reverse and remand.

Procedural Background

On March 7, 2000, Ms. Morgan was rolling a shopping basket near the check-out area of the County Market store on Louisville Avenue in Monroe. She slipped, allegedly on a crushed cookie, and her left knee crashed to the floor, resulting in serious injuries.

On February 26, 2001, she filed the instant suit against Investment Cars Unlimited Inc. and/or Southeast Foods Inc., a foreign corporation d/b/a County Market. The petition requested service on Investment Cars’ agent in Metairie, Louisiana; the record does not show that this agent ever accepted it. By letter of March 16, the agent’s office advised plaintiffs counsel that Investment Cars was a used car dealer in Metairie with no connection to the grocery store in Monroe, and that the right defendant was Southeast Foods Inc., d/b/a County Market (“Southeast Foods”), a Mississippi corporation with a registered agent in Monroe.

[582]*582On March 27, 2001, Ms. Morgan filed a supplemental and amending petition admitting that Investment Cars “is a used car dealer in Metairie, Louisiana with no relation to Southeast Foods Inc. d/b/a County Market.” She named as defendant the right Southeast Foods and successfully served its registered agent in Monroe on March 30.

In April 2001, Tri-State Foods L.P., d/b/a County Market 9304 (“Tri-State”), filed an answer admitting that it operates the County Market on 1 ^Louisville Ave. However, it alleged that Ms. Morgan’s claims had prescribed, and in June 2002 it filed a peremptory exception to that effect. Tri-State argued that its general partner, Southeast Foods, was in no way related to Investment Cars, a used car dealer in Me-tairie. It urged that the amended petition did not relate back to the original (timely) petition because it did not meet the fourth criterion of Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983): “The purported substitute defendant must not be a wholly new or unrelated defendant.”

Counsel for Ms. Morgan argued at the hearing on the exception that he originally sued two defendants: the first, Investment Cars, was totally unrelated to the store, but the second, Southeast Foods, was clarified and correctly named in the amended petition.

The district court sustained Tri-State’s exception. Ms. Morgan applied for a new trial; after hearing arguments the district court maintained its original judgment.

Ms. Morgan now appeals, advancing three assignments of error. She contends that filing a suit in a court of proper jurisdiction and venue interrupts prescription as to every defendant named in the suit, La. C.C.P. art. 3462, and that she correctly named an entity called “Southeast Foods Inc., d/b/a County Market” in her original, timely-filed petition. She also argues that judicial philosophy favors relation back when the name and identity of the true defendant is difficult to ascertain.1 Sutton v. Short Stop Hamburgers, 31,841 (La.App. 2 Cir. 5/5/99), 737 So.2d 157; Cohen v. Brookshire Bros. Inc., 01-1159 (La.App. 3 Cir. 6/5/02), 819 So.2d 429, writ denied, 02-1767 (La.10/14/02), 827 So.2d 423.

Tri-State counters that Ms. Morgan admitted, in her amended petition, that Investment Cars had no relation to the real defendant, and thus she cannot satisfy the fourth part of the Ray test. Tri-State urges that Sutton and other cases involved “simple misnomers,” and its rationale should not apply when the plaintiff sues the wrong party altogether. Finally, TriState argues that courts refuse to let amendments relate back to the original filing when the newly added defendants did not receive timely notice. Hunsucker v. Global Business Furniture, 33,972 (La.App. 2 Cir. 9/27/00), 768 So.2d 698, writ denied, 00-3013 (La.1/15/01), 777 So.2d 1235; Moon v. Shreveport Associates, 571 So.2d 799 (La.App. 2 Cir.1990), writ not cons., 576 So.2d 23 (1991).

Discussion

The relation back of pleadings is governed by La. C.C.P. art. 1153:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or oecur-[583]*583rence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original petition.

This article attempts to strike a balance between a plaintiffs right to proceed against the correct defendant and the defendant’s right to be free from stale and prescribed claims. Hunsucker v. Global Business Furniture, supra; Fortenberry v. Glock Inc. (USA), 32,020 (La.App. 2 Cir. 6/16/99), 1/741 So.2d 863.

In Ray v. Alexandria Mall, supra, the supreme court established four criteria to be utilized in determining whether an amendment changing the identity of the party sued relates back to the date on which the original petition was filed:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading.
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits.
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him.
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. Giron v. Housing Authority of Opelousas, 393 So.2d 1267 (La.1981); Hunsucker, supra.

Prescription is interrupted when the ob-ligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. The record clearly shows that Ms. Morgan filed suit within the prescriptive period against Southeast Foods, one of at least two entities registered to do business in that name in Louisiana. The original petition named the wrong Southeast Foods (a used car dealer in Metairie), but she effected service on the registered agent for the right one (the grocery store |Rin Monroe) slightly over one month after filing her original petition.

Service of the citation shall be requested on all named defendants within 90 days of the commencement of the action. La. C.C.P. art. 1201 C. The purpose of the 90-day requirement, added by La. Acts 1997, No. 518, is to assure that the defendant receives notice of the suit within a reasonable time after it has been commenced. Anderson v. Norfolk Southern Ry. Co., 02-0230 (La.App. 4 Cir. 3/27/02), 814 So.2d 659, writ denied, 02-1396 (La.9/20/02), 825 So.2d 1169. This article, read in conjunction with C.C. art. 3462, contemplates that the defendant may receive service after the applicable prescriptive period has expired; however, this does not prejudice the defendant, provided the suit was filed timely and in a court of competent jurisdiction and venue.

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843 So. 2d 580, 2003 La. App. LEXIS 1053, 2003 WL 1825445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-investment-cars-unlimited-inc-lactapp-2003.