Loupe v. Circle, Inc.
Decision Date | 07 June 1989 |
Docket Number | No. 89-CA-45,89-CA-45 |
Citation | 545 So.2d 694 |
Parties | Russell LOUPE v. CIRCLE, INC., et al. 545 So.2d 694 |
Court | Court of Appeal of Louisiana — District of US |
Gordon Hackman, Boutte, for plaintiff-appellant.
Paul B. Deal, John J. Hainkel, III, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, for defendant-appellee, Union Carbide Corp.
Before KLIEBERT, BOWES and GRISBAUM, JJ.
Plaintiff-appellant, Russell Loupe, sued his employer, Circle, Inc., for worker's compensation benefits for injuries allegedly sustained as the result of an on-the-job accident which occurred on January 6, 1983. Subsequently, on November 30, 1983, by an amending petition alleging a tort action, the defendant-appellee, Union Carbide Corporation, was brought into the suit as a co-defendant. Thereafter the trial judge maintained Union Carbide's motion for summary judgment and plaintiff appealed to this court. On October 14, 1987 we affirmed. See 514 So.2d 269 (5th Cir.1987).
Before our opinion became final, plaintiff, apparently seeking to obtain compensation benefits from Union Carbide, obtained leave to and filed a second amended petition. In response Union Carbide filed an exception of prescription or in the alternative res judicata. The trial judge maintained the exception of prescription and plaintiff appealed to this court. For the reasons hereinafter stated we vacate the judgment granting the exception of prescription and dismiss Loupe's second amending petition.
We find the trial court had no authority to allow plaintiff leave to file the second amending petition, hence, it was improvidently issued. See LSA-C.C.P. Article 1151; Booth v. Allstate Insurance Co., 466 So.2d 703 (4th Cir.1985); Johnson v. Walgreen Louisiana Co., 163 So.2d 830 (4th Cir.1964); Templet v. Johns, 417 So.2d 433 (1st Cir.1982) writ denied 420 So.2d 981 (La.1982).
In Templet v. Johns, supra, at page 435, the court stated:
Further the First Circuit stated, at page 436:
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...The only remedies available at this stage of the proceedings are to apply for a new trial or to take an appeal. Loupe v. Circle, Inc., 545 So.2d 694, 695 (La.App. 5th Cir.1989); Booth v. Allstate Insurance Company, 466 So.2d at In Templet v. Johns, 417 So.2d 433, 435-36 (La.App. 1st Cir.), ......
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