Opinion
2022 CW 1366
04-17-2023
DEBRA ROBERTSON, INDIVIDUALLY AND AS PERS' REPRESENTATION OF THE ES! OF GREGORY ROBERTSON AND KOCATATIE THOMPSON v. UNICORP, LLC, ERDACE MANAGEMENT, LLC, ERDACE, LLC, BRADD, LLC, AND THE PAYNE COMPANY, INC.
The Payne Company, Inc., applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 691219.
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
WRIT DENIED.
PMc
Holdridge, J., concurs in the denial of the writ. The Second and Restated Petition filed by Debra Robertson relates back to the date of filing of the original petition in accordance with La. Code Civ. P. art. 1153. Therefore, the wrongful death and survival action claims of the minor children of Gregory Robertson are not prescribed. See Giroir v. S. Louisiana Med. Ctr., Div. of Hosps., 475 So.2d 1040, 1041 (La. 1985); Sam v. Sorrel Elec. Contractors, Inc., 525 So.2d 244, 246 (La.App. 1st Cir. 1988), writ denied, 532 So.2d 133 (La. 1988). All the factors established by the Louisiana Supreme Court in Giroir for an amending petition to relate back to the date of filing of the original petition were met in this case. Debra Robertson had the legal capacity as permanent managing conservator to file the wrongful death and survival action on behalf of the minor child, Adian Michael Robertson, at the time the original petition was filed; the amended claim arises out of the same conduct or occurrence as set forth in the original pleading; the defendants either knew or should have known of the existence of the new plaintiffs (Mr. Robertson's two other minor children); the new and old plaintiffs are all minor siblings and therefore are sufficiently related; the defendants will not be prejudiced in preparing and conducting their defense.
Greene, J., dissents and would grant the writ. The claims alleged in the Second Amended and Restated Petition filed by Debra Robertson, on behalf of the minor children Gregory Charles Robertson, III, Nevaeh Nichole Robertson, and Adian Michael King Robertson, are prescribed on their face. See La. Civ. Code arts. 2315.1 and 2315.2. Furthermore, I find the plaintiff failed to meet her burden of proving the claims relate back to the original petition, as the original petition failed to set forth a legally viable claim. See Watson v. Weidenberg Village, Inc., 2020-0453 (La.App. 4th Cir. 7/7/21), 323 So.3d 951.
Accordingly, I would grant the exception of prescription and dismiss the claims alleged in the Second Amended and Restated Petition.