Opinion
2024-CC-00909
09-04-2024
SHAWN NOELL HOLLIDAY, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. THE LOUISIANA OFFICE OF MOTOR VEHICLES, THROUGH KAREN ST. GERMAIN, IN HER OFFICIAL CAPACITY AS THE COMMISSIONER OF THE LOUISIANA OFFICE OF MOTOR VEHICLES, ET AL.
Liz Murrill, in her Official Capacity as Attorney General - Applicant Defendant; Applying For Supervisory Writ, Parish of East Baton Rouge, 19th Judicial District Court Number(s) 652347, Court of Appeal, First Circuit, Number(s) 2024 CW 0279;
Writ application granted. See per curiam.
SJC
JTK
WJC
JBM
Weimer, C.J., dissents and would deny.
Hughes, J., dissents and would deny.
Griffin, J., dissents and would deny.
On Supervisory Writ to the 19th Judicial District Court, Parish of East Baton Rouge
PER CURIAM.
Plaintiffs filed a class action petition for damages against various state entities, including the Louisiana Attorney General ("AG"). The AG filed an exception of no cause of action. At a hearing on May 8, 2017, the district court sustained the exception and granted plaintiffs five days to file an amended petition.
On May 12, 2017, plaintiffs fax-filed their supplemental and amending petition with the clerk of court. Plaintiffs' counsel asserts she mailed the original document to the clerk's office on May 15, 2017. However, the clerk of court's records indicate the original pleading was not stamped until May 24, 2017, outside the seven-day window provided by La. R.S. 13:850.
Thereafter, the AG filed a motion to dismiss plaintiffs' action on the ground they failed to amend their petition timely. Plaintiffs opposed the motion and presented testimony from their counsel. According to plaintiffs' counsel, she spoke with unnamed employees of the clerk's office on May 19, 2017 and these employees confirmed receipt of the original document.
The district court denied the AG's motion to dismiss, and the court of appeal denied the AG's request for supervisory relief. The AG now applies to this court and seeks a stay of proceedings.
La. R.S. 13:850(B) 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. [emphasis added]
In Petit-Blanc v. Charles, 21-0094 (La. 4/20/21), 313 So.3d 1245, we explained that in order to establish delivery, a party must show the original document was in the actual or constructive possession of the clerk of court within the seven-day period:
As originally enacted La. R.S. 13:850(B) required that the party filing the document "shall forward" the original document and fees to the clerk within seven days of the facsimile transmission. In Hunter v. Morton's Seafood Rest. & Catering, 08-1667 (La. 3/17/09), 6 So.3d 152, 156, we interpreted the term "forward" to mean the litigant must only send or transmit the document to the clerk, explaining "[t]he definition of this term does not include the concept of 'delivery' or 'receipt.' "
In 2016, the legislature amended La. R.S. 13:850(B) by Acts 2016, No. 109, eff. August 1, 2016. As currently drafted, the statute provides the party shall "deliver" the original document to the clerk within seven days of the facsimile transmission. Black's Law Dictionary (6th Ed. 1990) defines "delivery" as "[t]he act by which the res or substance thereof is placed within the actual or constructive possession or control of another."
Citing this definition, the court of appeal in Clark v. Wal-Mart Stores, Inc., 18-0052 (La.App. 5 Cir. 10/31/18), 259 So.3d 516, held a petition was "delivered" to the clerk of
court when a clerk's office employee signed a green card for plaintiff's certified mail. [emphasis added].
In finding the petition in that case was not filed timely, we stated:
In the present case, plaintiff asserts she sent her original document to the clerk's office sometime prior to the November 22, 2019, but she cannot establish the petition was placed in the actual or constructive possession of the clerk's office at any time prior to November 25, 2019. Considering the 2016 amendment to the statute, we must conclude merely transmitting an original document within the deadline is insufficient; rather, the litigant must establish the document was delivered to the clerk within the deadline. Plaintiff has not done so here. [emphasis added].
The facts of the instant case are virtually identical to Petit-Blanc. Although plaintiffs faxed their petition timely, they cannot establish the original document was placed in the actual or constructive possession of the clerk's office at any time prior May 24, 2017. The only evidence offered by plaintiffs is self-serving testimony from their counsel citing a purported conversation with unnamed employees of the clerk's office. Plaintiffs produced no objective evidence, such as a green card or court records, which would establish the date of receipt by the clerk's office, nor did they call any clerk's office employees as witnesses. In the absence of any evidence establishing timely delivery, we must find that the filing has "no force or effect" under La. R.S. 13:850(C).
DECREE
For the reasons assigned, the writ is granted and made peremptory. The judgment of the district court is reversed, and the motion to dismiss filed by the Louisiana Attorney General is granted. The request for stay is denied as moot. The case is remanded to the district court for further proceedings.