Tabary v. D.H. Holmes Co.

Louisiana Court of Appeal

Tabary v. D.H. Holmes Co.

499 So. 2d 1174, 1986 La. App. LEXIS 8369

CourtLouisiana Court of Appeal

DecidedDecember 8, 1986

DocketNo. 86-CA-361

StatusPublished

This text of 499 So. 2d 1174 (Tabary v. D.H. Holmes Co.) 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

Tabary v. D.H. Holmes Co., 499 So. 2d 1174, 1986 La. App. LEXIS 8369 (La. Ct. App. 1986).

Pincite

Opinion

GAUDIN, Judge.

Appellants filed the instant tort petition in the 24th Judicial District Court, where it was met by an exception of no cause of action. The exception was maintained and the suit dismissed.

We agree with the trial judge in that the petition, as it now stands, does not sufficiently state a cause of action. However, LSA-C.C.P. art. 934 indicates that when the grounds of the objections pleaded by the peremptory exception may be removed by an amended petition, the trial judge sustaining the exception shall permit an amendment.

Here, counsel for appellants-plaintiffs contends that he can remove the objections by and with an amended petition. We do not know, of course, if he can, but Art. 934’s wording, particularly the word “shall”, compels a remand for the trial judge to comply with the article’s outlined procedure.

Accordingly, we remand this matter to the district court with instructions to the trial judge to order an amendment, within a specified time delay.

If the objectionable grounds cannot be removed, or if the appellants-plaintiffs fail to adhere to the order to amend, this action shall be then dismissed by the trial judge.

REMANDED WITH INSTRUCTIONS.

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