Clearly, all three petitions concerned the same occurrence- the alleged food poisoning at the West 70th Street Short Stop location. Alexandria Mall, 434 So.2d 1083, 1086-1087 (La.1983).Īt the hearing on the exception of prescription, Starlight's attorney confessed that the first three elements of this test were not truly at issue. Our supreme court has established the following criteria for determining whether this article allows an amendment, which changes the identity of the party or parties sued, to relate back to the date of filing of the original petition: (1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading (2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits (3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him (4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed. 1153 provides that when the action asserted in the amended petition 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 petition. The Suttons argue that this amendment relates back to the filing of the original petition. Here, the Second Supplemental and Amended Petition has clearly prescribed on its face-that pleading was filed nearly one year and seven months after the alleged tortious conduct. When a plaintiff's petition shows on its face that the prescriptive period has expired, however, the burden shifts to the plaintiff to demonstrate suspension or interruption of the prescriptive period. Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. After examining the submitted memoranda and considering the arguments of counsel, the trial court granted the exception and dismissed the Suttons' claims with prejudice. Starlight, on December 2, 1997, countered with a Peremptory Exception of Prescription, noting that the Second Supplemental and Amended Petition had prescribed on its face and arguing that it did not relate back to the original petition. Thus, on July 24, 1997, armed with this information from Buckeye, the Suttons filed a Second Supplemental and Amended Petition finally naming the correct defendant, Starlight Company d/b/a Short Stop Hamburgers ("Starlight"). And, although Buckeye received title to the portable restaurant buildings as a dation en paiment, Starlight continued to operate the business for some time. As revealed in its motion for summary judgment, Buckeye purchased a bank loan when the owner of Short Stop Hamburgers, the Starlight Company, defaulted. Like Conger, Buckeye did not own, operate, or do business as Short Stop Hamburgers. This company also proved to be the wrong defendant. Upon discovering their error in this regard, the Suttons filed, on May 21, 1997, a First Supplemental and Amended Petition to substitute Short Stop Hamburgers d/b/a Buckeye Development d/b/a Tri-State Short Stop Company ("Buckeye") for all of the previously named defendants. Instead, this individual merely owned a tract of land which had been leased so as to allow one of Short Stop's other portable restaurants to sit at that location. Conger, however, did not own, operate, or do business as a Short Stop restaurant. Seeking damages for a variety of past, present, and future complaints, the Suttons filed suit exactly one year later.Īs defendants, they named Short Stop Hamburgers (located on West 70th Street), Lewis Conger d/b/a Short Stop Hamburgers, and Conger's insurer, Reliance Insurance Company. After eating their sandwiches, the Suttons became violently ill and began vomiting. On January 22, 1996, plaintiffs, Della and Debra Sutton, purchased "Diablo" sandwiches from a Short Stop Hamburger restaurant in Shreveport. For the following reasons, we reverse and remand for further proceedings. After the trial court granted defendant's exception of prescription, plaintiffs appealed, seeking to have their claims reinstated.
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