Opinion
2021 CA 1311
06-03-2022
Earl TERRY v. Gary SCHRODER, Jr., Unknown Driver, James Singleton, GEICO General Insurance Company, ABC Insurance, Def Insurance, and GHI Insurance
Ellen Cronin Badeaux, J. Crain Diamond, Covington, Louisiana, Attorneys for Plaintiff/Appellant, Earl Terry Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Lauren A. Duncan, Amber Mitchell, Nancy N. Butcher, Peter M. Gahagan, Covington, Louisiana, Attorneys for Defendant/Appellee, Gary Schroeder
Ellen Cronin Badeaux, J. Crain Diamond, Covington, Louisiana, Attorneys for Plaintiff/Appellant, Earl Terry
Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Lauren A. Duncan, Amber Mitchell, Nancy N. Butcher, Peter M. Gahagan, Covington, Louisiana, Attorneys for Defendant/Appellee, Gary Schroeder
BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.
PENZATO, J. The plaintiff, Earl Terry, appeals the trial court's judgment that granted an exception of no cause of action and alternative motion for summary judgment filed by defendant, Gary Schroeder; denied Mr. Terry's motion for leave of court to amend and supplement his petition for damages; and dismissed the suit, with prejudice. For the reasons that follow, we vacate in part, affirm in part, reverse in part, and remand for further proceedings.
Mr. Schroeder's last name was incorrectly spelled "Schroder" in the petition for damages; however, we will use the proper spelling, Schroeder, in this opinion. Additionally, the caption identifies Mr. Schroeder as "Jr." but nothing in the record, including filings on his behalf, refer to him as such.
FACTS AND PROCEDURAL HISTORY
Earl Terry initiated this personal injury suit on August 2, 2016 to recover damages allegedly sustained in a January 15, 2016 car accident. When the accident occurred, Mr. Terry was a guest passenger in a truck driven by James Singleton, which was rear-ended by a truck owned, but not operated, by Gary Schroeder. At the time the petition for damages was filed, Mr. Terry was unaware of the identity of the individual driving Mr. Schroeder's truck, so he named "unknown driver" as a "place holder" defendant. He also named Mr. Schroeder, Mr. Singleton, and three fictitious insurers, who purportedly insured the trucks operated by Mr. Schroeder, Mr. Singleton, and the unknown driver.
GEICO, Mr. Terry's uninsured/underinsured motorist insurer, was also named as a defendant but was subsequently dismissed, with prejudice, via voluntary motion to dismiss on August 8, 2017.
By July 2017, Mr. Schroeder's wife, Amanda Schroeder, was identified as the "unknown driver" of the Schroeder truck. Mr. Terry also learned that 21st Century Centennial Insurance Company provided auto coverage on the Schroeder vehicle. Nevertheless, Mr. Terry did not seek leave of court to amend and supplement his petition for damages until August 20, 2020.
Shortly after the motion for leave was filed, Mr. Schroeder filed an exception of no cause of action or alternative motion for summary judgment. Mr. Schroeder asserted that the petition does not allege that he was the driver of the truck that rear-ended the Singleton vehicle and asserts no other negligence cause of action against him. Alternatively, Mr. Schroeder moved for summary judgment pursuant to La. C.C.P. art. 966, arguing that Mr. Terry has no evidence to establish that he was negligent, including no evidence to support a negligent entrustment cause of action to the extent one is asserted.
Mr. Schroeder also opposed Mr. Terry's motion for leave and asserted that amendment of the petition would be futile since any claims against Mrs. Schroeder and 21st Century are prescribed. He reasoned that prescription was not interrupted against these yet-to-be named defendants, because Mr. Singleton was not served with the petition and has not made an appearance. Additionally, Mr. Schroeder maintained there is no basis to hold him liable, for the reasons set forth in his exception of no cause of action or alternative motion for summary judgment. Thus, Mr. Schroder contended he is not a joint or solidary obligor with Mrs. Schroeder and 21st Century, and suit against him did not interrupt prescription. According to Mr. Schroeder, once he is dismissed, only fictitious defendants will remain, but suit against fictitious persons did not interrupt prescription as to Mrs. Schroeder and 21st Century. Finally, Mr. Schroeder asserted that amendment would cause undue delay, since this case has been pending for over four years and the trial date has already been continued twice.
The trial court heard argument on Mr. Terry's motion for leave and Mr. Schroeder's exception of no cause of action or alternative motion for summary judgment on January 22, 2021, then took the matter under advisement. The judgment, signed on June 14, 2021, reflects that the trial court granted Mr. Schroeder's "Peremptory Exception of No Cause of Action, or Alternatively, Motion for Summary Judgment," denied Mr. Terry's motion for leave to amend the petition for damages, and dismissed the case, in its entirety, with prejudice. In its written reasons, the trial court noted that the petition does not allege negligent entrustment against Mr. Schroeder - a theory of liability advanced by Mr. Terry in response to the exception of no cause of action. The court further concluded that Mr. Terry failed to present evidence to support a negligence cause of action, particularly, negligent entrustment, against Mr. Schroeder. Thus, the trial court found it had "no choice but to grant the defendant's Summary Judgment dismissing him from the suit." The court then explained why it denied Mr. Terry's motion for leave. Although it concluded that Mr. Terry was acting in good faith, was not seeking to delay the proceedings, and amendment would not cause undue prejudice or delay, amendment would be a "futile act" because the claims against Mrs. Schroeder and 21st Century are prescribed. "Without the presence of a solidary obligor, the action against the tortfeasor, brought four years after the accident, has prescribed."
Mr. Terry filed the instant appeal, seeking to reverse the June 14, 2021 judgment.
DISCUSSION
Mr. Schroeder's Exception of No Cause of Action, Alternative Motion for Summary Judgment
Mr. Terry asserts that the trial court erred by failing to find the petition states a cause of action against Mr. Schroeder, by granting Mr. Schroeder's exception of no cause of action, and by granting his motion for summary judgment.
After our de novo review of the record, we conclude that Mr. Schroeder's motion for summary judgment was properly granted and, thus, decline to reach the merits of the exception of no cause of action, finding the exception is moot. Pottinger v. Price , 2019-0183 (La. App. 1st Cir. 10/23/19), 289 So.3d 1047, 1053 (On motions for summary judgment, appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, by asking the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.) To support the motion, Mr. Schroeder relied on deposition testimony from Mrs. Schroeder and Mr. Terry. Mrs. Schroeder confirmed that she was driving the truck that rear-ended the vehicle occupied by Mr. Terry. Mr. Terry similarly testified that, as best he could tell, a woman was driving the truck that hit Mr. Singleton's vehicle. Mr. Terry offered no contradictory evidence; therefore, it is undisputed that Mr. Schroeder was not a driver involved in the accident.
Specifically, we pretermit discussion of Mr. Terry's arguments concerning the exception and, particularly, whether the petition for damages sufficiently sets forth a cause of action against Mr. Schroeder.
Mr. Terry argues that Mr. Schroeder may be liable for negligent entrustment for allowing his wife to drive what Mr. Terry describes as a "souped up truck," with a lift and "oversize wheels and tires." Specifically, he asserts that Mr. Schroeder should not have allowed his wife to drive the truck because of her height (unspecified) and her purported "inexperience with the truck on oversize wheels and tires." On appeal, Mr. Terry maintains that "changes to height and weight distribution affect stopping distance when compared to driving and stopping an ordinary vehicle." Mr. Terry offered absolutely no evidence to support this theory or to minimally establish that Mrs. Schroeder was inexperienced in driving the couple's truck. Additionally, Mrs. Schroeder testified that the truck was purchased with a "factory lift from the dealership," and there is no evidence the truck was dangerous or otherwise unsuitable for use on Louisiana roadways.
Thus, we find no genuine issue of material fact remains as to Mr. Schroeder's negligence related to the January 15, 2016 accident, and Mr. Schroeder is entitled to summary judgment as a matter of law. The portion of the June 14, 2021 judgment granting the motion for summary judgment filed by Mr. Schroeder is affirmed. We vacate as moot the portion of the June 14, 2021 judgment that granted the exception of no cause of action.
We note that Mr. Schroeder's combination of an exception of no cause of action with an "alternative" motion for summary judgment in one filing is procedurally problematic, particularly because no evidence may be considered in support of an exception of no cause of action, but evidence may be introduced to support or oppose a motion for summary judgment. La. C.C.P. arts. 930 and 966(A)(4).
Mr. Terry's Motion for Leave of Court to File First Supplemental and Amending Petition for Damages
In the remaining assignments of error, Mr. Terry maintains that the trial court erred by denying his motion for leave of court to amend and supplement the petition and by finding that the claims against Mrs. Schroeder and 21st Century are prescribed. We agree.
Mr. Terry also asserted that the trial court erred by failing to find the claims relate back to the date of the petition was filed. Since we conclude that the trial court erred by denying the motion for leave upon prematurely concluding that the claims against Mrs. Schroeder and 21st Century are prescribed, we do not address this assignment of error concerning relation back pursuant to La. C.C.P. art. 1153.
It appears from the written reasons that the trial court failed to consider that Mr. Singleton was named as a defendant in the original petition and is still a defendant, contrary to Mr. Schroeder's assertion that only fictitious defendants remain following his dismissal. In his petition, Mr. Terry alleged that the January 15, 2016 accident was caused by "Defendants," including Mr. Singleton, for failing to, among other things, pay attention and maintain proper control of their respective vehicles. Louisiana Civil Code Article 2324(B) provides that liability for damages caused by two or more persons shall be a joint and divisible obligation. Subpart (C) of this article further states that the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. Therefore, as alleged joint tortfeasors, an interruption of prescription against Mr. Singleton was effective against the second driver, now identified as Mrs. Schroeder, and her insurer, 21st Century. See La. R.S. 22:1269.
Mr. Schroeder notes that Mr. Singleton has not made an appearance in this case. However, this does not affect the validity of the interruption of prescription. Louisiana Civil Code Article 3462 sets forth the rule that prescription is interrupted either by filing a suit in a competent court and proper venue or by service of process within the prescriptive period. McKenzie v. Imperial Fire & Casualty Ins. Co. , 2012-1648 (La. App. 1st Cir. 7/30/13), 122 So.3d 42, 51, writ denied , 2013-2066 (La. 12/6/13), 129 So.3d 534. Once an interruption occurs, it continues as long as the suit is pending. La. C.C. art. 3463(A). There is no contention that Mr. Terry's lawsuit was not filed in a competent court in a proper venue. Additionally, a suit, although not timely served pursuant to La. C.C.P. art. 1201, interrupts prescription, unless the court finds that failure to request service was due to the plaintiff's bad faith. Only in the instance of bad faith is an interruption of prescription considered never to have occurred. Bordelon v. Medical Center of Baton Rouge, 2003-0202 (La. 10/21/03), 871 So.2d 1075, 1079, as corrected (1/28/04). There is no allegation or finding that Mr. Terry acted in bad faith by failing to timely serve Mr. Singleton.
The petition includes a typed request for service on Mr. Singleton at an address in Mississippi. A handwritten notation stating "BY LONG ARM" appears next to the request. See La. R.S. 13:3201 and La. R.S. 13:3204. The record contains no additional information regarding service or attempts to perfect service on Mr. Singleton.
Mr. Schroeder also argues there is no evidence in the record that Mr. Singleton was negligent in causing the accident; therefore, suit against him did not interrupt prescription on the claims against Mrs. Schroeder and 21st Century. Whether Mr. Terry will ultimately prove negligence on the part of Mr. Singleton is not before us nor is it pertinent to the determination of whether prescription was interrupted. Instead, we look to the allegations of the petition, as set forth above. If accepted as true, these allegations are sufficient to state a negligence cause of action against Mr. Singleton and to create joint liability between both drivers. See McKenzie, 122 So.3d at 48, examining the allegations in the petition to determine whether the plaintiff sufficiently alleged joint liability such that suit against the first alleged joint tortfeasor interrupted prescription on the claims against the second purported joint tortfeasor. See also Sims v. American Ins. Co., 2012-0204 (La. 10/16/12), 101 So.3d 1, 6, recognizing that prescription is interrupted by suit against one joint tortfeasor as to the other joint tortfeasors not timely sued; however, if the timely sued defendant is ultimately found not liable to plaintiffs, the suit against the untimely sued defendants will then be dismissed, because no joint or solidary obligation would exist. See also Roberts v. USAA Casualty Ins. Co., 2014-0384 (La. App. 1st Cir. 11/7/14), 168 So.3d 418, 420 n.3, noting that, while an allegation of joint liability is pending, the exception of prescription remains premature.
Louisiana Code Civil Procedure Article 1151 provides that, after an answer has been served, the petition may be amended only by leave of court or by written consent of the adverse party. Amendment of pleadings should be liberally allowed provided that the movant is acting in good faith, the amendment is not sought as a delaying tactic, the opponent will not be unduly prejudiced, and trial on the issues will not be unduly delayed. United Teachers of New Orleans v. State Board of Elementary & Secondary Education , 2007-0031 (La. App. 1st Cir. 3/26/08), 985 So.2d 184, 199. In its written reasons, the trial court specifically found these criteria are satisfied in favor of Mr. Terry but, nevertheless, denied his motion for leave upon erroneously concluding that an amendment would be futile. Because the trial court failed to consider Mr. Singleton's status as a named joint tortfeasor and prematurely concluded that all claims against the not-yet-named defendants are prescribed, the trial court abused its discretion by denying Mr. Terry's motion for leave to file a first supplemental and amended petition. Thus, we vacate the portion of the June 14, 2021 judgment that denied Mr. Terry's motion for leave to amend.
The decision as to whether to grant leave to amend or supplement a pleading is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal except where an abuse of discretion has occurred and indicates a possibility of resulting injustice. United Teachers of New Orleans , 985 So.2d at 199.
CONCLUSION
For the foregoing reasons, we vacate the portion of the June 14, 2021 judgment granting the exception of no cause of action filed by Gary Schroeder, affirm the portion of the judgment granting the motion for summary judgment filed by Mr. Schroeder, and reverse the portion of the judgment that denied Earl Terry's motion for leave of court to amend and supplement his petition for damages. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed one-half each to Earl Terry and Gary Schroeder.