Thurman v. Aguilar
| Decision Date | 22 June 2022 |
| Docket Number | 2021 CA 1514 |
| Citation | 343 So.3d 784 |
| Parties | Dee Wayne THURMAN v. Jesus AGUILAR, Empower Insurance Group, Jesus Hernandez, Peak Property and Casualty Insurance, Mary Heflebower and Allstate Insurance Company |
| Court | Court of Appeal of Louisiana — District of US |
343 So.3d 784
Dee Wayne THURMAN
v.
Jesus AGUILAR, Empower Insurance Group, Jesus Hernandez, Peak Property and Casualty Insurance, Mary Heflebower and Allstate Insurance Company
2021 CA 1514
Court of Appeal of Louisiana, First Circuit.
Judgment Rendered: JUNE 22, 2022
Marcus J. Plaisance, Mark D. Plaisance, Prairieville, Louisiana, and Maurice D. Hall, Plaquemine, Louisiana, Counsel for Plaintiff/Appellant Dee Wayne Thurman
M. Randall Brown, Cameron M. Mary, Mandeville, Louisiana, Counsel for Defendant/Appellee Alinsco Insurance Company
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 plaintiff's 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(B). 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.
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 filed oppositions to Alinsco and Peak's exceptions of prescription.4 Plaintiff 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, 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.7 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 plaintiff's counsel electronically filing said lawsuit."
On the same day, Alinsco and Peak fax filed a joint memorandum in opposition to plaintiff's motion to strike their reply briefs.8 Alinsco and Peak argued that plaintiff's motion to strike was not authorized by the Code of Civil Procedure or the local rules, 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 plaintiff's request for a continuance, arguing that the hearing had already been continued once at plaintiff's 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 emails 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 plaintiff's 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 plaintiff's motion 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 plaintiff's 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
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
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