Kevin and Corliss Stenson, Et Al. v. City of Oberlin and Meyer, Meyer, LaCroix and Hixson, Inc. is a very interesting and very important case to come out of the Parish of Allen. The case resulted in divergent opinions between the trial and appelate courts of the Allen Parish, ultimately requiring the Supreme Court to settle the matter. The Supreme Court accepted the case on a Writ of Certiorari, not just to resolve the conflicting results of the trial and appelate courts, but to “resolve a split in the circuits as to whether Louisiana Code of Civil Procedure article 1153, the so called ‘relation back’ doctrine, controls the Fuseliers (the plaintiff in the present case) intervening action or whether Louisiana Code of Civil Procedure 1067, providing the time limitation exception for incidental demands, governs.” The results of this Supreme Court decision will significantly impact future jurisprudence by setting a controlling precedent not just for the Allen Parish, but statewide in decision involving a choice between these two statutes. Before the Louisiana Supreme Court granted Certiorari in this matter, the Second, Third, Fourth and Fifth Circuits confronted similar situations requiring a decision between which of these two statutes to apply.
In the present case the residents of the City of Oberlin brought claims for “property damage and personal injury caused by sewerage overflow” against the City of Oberlin. They later decided to join Meyer, Meyer, LaCroix and Hixson (MMLH) as defendants. For present purposes, the important events to note in the procedural history of this case are the filings of a Second Supplemental Petition for recognition of class status on March 11, 2005, and the service of this petition on the defendant MMLH on March 17, 2005.
On July 20, 2006 Silton and Robin Fuselier filed a petition to intervene as plaintiffs. To intervene means to “become a party to a legal prceding begun by others in order to protect an alleged interest in the subject matter of the proceeding.” The Fuseliers claimed that they too had been damaged by the sewerage overflow.
MMLH responded by filing a peremptory exception of prescription. Specifically MMLH “maintained the Fuseliers petition of intervention is an ‘incidental demand’ under Louisiana Code of Civil Procedure article 1031 and that it was untimely filed pursuant to Louisiana Code of Civil Procedure article 1076. Article 1067 is as follows: “An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.” “MMLH argued the Fuseliers’ July 20, 2006 petition was untimely because it was barred by prescription when the ‘main demand’ or Second Supplemental Petition of the Stinson plaintiffs, was filed on March 11, 2005 and furthermore, was not timely filed within the ninety days of service of the supplemental petition upon MMLH on March 17, 2005”. The Fuseliers did not file their petition to intervene until July 20, 2006.
The Fuseliers argued that the intervention could relate back to the original petition filed by the Stenson plaintiffs under Louisiana Code of Civil Procedure article 1153. Article 1153 is as follows: “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” Essentially the Fuseliers believe that because their claim is based on the same kind of damages arising out of the same occurence of sewerage overflow, their claim should be allowed to exist and accompany those of the Stenson plaintiffs.
Relation back is an important feature of the Louisiana Code of Civil Procedure the rules of civil procedure of other states, and the Federal Rules of Civil Procedure because it is a means of permitting claims that would otherwise be barred by statues of limitation or statutes of prescription. Relation back usually applies to amendments to pleadings, and in fact is described in terms of amendments. It is analagous to second chance for plaintiffs to make a claim that would otherwise not be permitted because it is being made too late.
Relation back is literally defined as “the principle that an act done at a later time is deemed by law to have occurred at an earlier time”. However, the relation back principle requires that the defendant not be prejudiced or unfairly disadvantaged by the late amended claim. A possible disadvantage is prevented by the requirements of the relation back doctrine that the amended claim arise “out of the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading” and that the “defendant received such notice of the action that it will not be prejudiced in defending on the merits; and knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity” (the latter in a situation where the amendment is made to replace or add a plaintiff not included in the original pleading). Generally the feature of notice is a key priniciple in preventing the defendant from being prejudiced by the amendment.
The Fuseliers claim satisfies the notice requirement of the relation back doctrine because their claim arises out of the “same conduct, transaction, or occurence” of the main claim made by the Stenson plaintiffs, namely, the sewerage overflow. The Fuseliers reinforced their argument by citing the case of Giroir v South Louisiana Medical Center Division of Hospitals, 475 So.2d 1040 (La. 1985), in which the Supreme Court articulated “four factors to consider in applying La. Code Civ. Proc. art. 1153 to the addition or substitution of a plaintiff or claim. These four factors are as follows: “(1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.”
Relaying on article 1067, the trial court “maintained the defendants exception of prescription”, while the appeals court determined that the Fuselier’s claim related back to the original petition brought by the Stenson plaintiffs. The appeals couurt relied on both artilce 1153 and the factors set forth in Giroir. The Second, Third, Fourth and Fifth Circuits also confronted the choice between these two articles, although of course, in different cases. A very cursory description of those cases will follow in order to illuminate the confusion that has manifested as a result of having to choose between these two statutes.
The Second Circuit relying on Riddle v. Simmons, 626 So.2d 811 (La. App. 2d Cir. 1993) found that the “timely filing of the main demand interrupted prescription with respect to the challenged intervention,” and that “prescriptive statutes are strictly construed in favor of maintaining rather than barring actions.” They followed up the latter with the statement that “consistent with that precept, recent decisions have tended to allow interventions, or claims by or against additional parties, to relate back to the filing of the original demand, so that, in effect, prescription is interrupted.” Furthermore, “the fundamental purpose of prescription is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect against stale claims and non-preservation of relevant proof.”
The Third Circuit relied on Calbert v. Batiste, 09-514 (La. App. 3 Cir. 11/4/09), 23 So.3d1031, that appled the factors in Giroir to determine ” that the intervening petition related back to the date of the original filing..” The Fifth Circuit was confronted with the issue of whether “article 1067 governed an incidental demand asserted in a cross claim”. The court decided not to apply the factors in Giroir because Giroir involved amended petitions, and concluded that the cross claim was a permitted incidental demand and was “governed by 1067”. According to the appelate court, “Article 1067 allows the filing of an ‘incidental demand” after the prescriptive period if that demand was not barred at the time the ‘main demand’ was filed, whereas, article 1153 relates to the amendment of pleadings in the main demand”
The Fourth Circuit also held that 1153 “only applies to amending petitions.” Specifically “the appelate court found the petition of intervention was an incidental demand to the original suit and, furthermore, it was barred by prescription because it was not timely filed pursuant to Article 1067, which applies to incidental demand.” Curiously a different panel of the Fourth Circuit applied the factors in Giroir to a different case and concluded that the intervening petition related back to the filing of the original petition.
It is clear that there has been significant “confusion” and conflicting jurisprudence surrounding the choice between these two statutes. In additon to deciding the issue for the Fuseliers in the present case, the Supreme Court of Louisiana intends to resolve this confusion. The Supreme Court decided that Article 1067 is the appropriate statute to apply in Stetson. Given the facts of this case they found “the action of the intervening plaintiffs was not timely filed within the 90 days of the date of service on the last added defendant.”
In addition to resolving the issue in Stetson, the Supreme Court made the following observation that will be the precedent for similar cases: “Given the plain language of the articles, we find the cases deciding to apply Article 1067, rather than Article 1153 and/or the Giroir factors, to incidental demands such as the petition to intervene in the main demand have adopted the correct approach. The Supreme Court arived at this conclusion by looking at the plain language of each of the articles. Because the Fuseliers claim is an intervention, and an intervention is an “incidental demand” according to Article 1031, then Article 1067 is the applicable statute: Article 1067 “clearly provides an exception to prescription or preemption for incidental demands.”
The Court articulated that 1153 “provides a means for determining when an amendment (and they emphasized “amendment” in the opinion by underlining it) adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes.” The Court was considering the strict legislative intent of these statutes. They summarized in the following: “In sum we find that applying Article 1153 and the factors enunciated in Giroir to petitions seeking to intervene in the main demand would expand Article 1153 beyond its scope intended by the legislature.
In the future, interventions like that of the Fuselier’s, as incidental demands, will be subject to the Louisiana Code of Civil Procedure 1067 and not 1153.