 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mehta v. Baton Rouge Oil Company9/22/2000
>
The plaintiffs in the present case would propose a rule of law that judicial demand in any judgment, without further specification, must relate back to the filing of the original petition, regardless of subsequent supplements or amendments. For this, plaintiffs rely upon Article 1153 of the Code of Civil Procedure which provides:
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.
It is generally recognized that the doctrine of Article 1153 affects the issue of prescription. Hardy v. A+ Rental, Inc., 95-2176, p.2 (La. App. 4th Cir. 5/8/96), 674 So.2d 1155, 1156-57, writ denied, 96-1945 (La. 11/1/96), 681 So.2d 1268. While appellants would want to give the article an interpretation which would make it controlling on the question of judicial demand, that is contrary to the jurisprudence of the state. In fact, it has been held that, even in the event that claims not raised by the pleadings are tried by express or implied consent of the parties at the trial, this impromptu expansion constitutes a new judicial demand, and damages arising from the new claim or claims only bear interest from the time of the trial. Red River Realty, Inc. v. Relmm Corporation, 372 So.2d 792, 798 (La. App. 2nd Cir. 1979).
Appellants correctly point out that Louisiana is a fact-pleading jurisdiction and that a party may be granted any relief that the facts constituting the claim would support. They rely upon language in the case of Gunter v. Planche, 439 So.2d 437 (La. 1983) in which our Supreme Court said:
The transaction or occurrence giving rise to the demand or object of the suit remained unchanged by the amendment and, even if the state of facts which constitute the defendant's wrong differ enough so that two causes of action exist, the facts of the transaction which created both duties is similar enough to support a relation back of the amending petition under art.1153. Gunter, 439 So.2d at 441.
While this is good law, it is not applicable to the facts of this case. The original petition filed by the appellants herein cited delinquent rentals for a specific period and in a specific amount. Because the trial judge sustained defendants' timely objection and refused to allow the plaintiffs to expand their presentation at trial, it is evident that the trial judge recognized that the pleadings at that time did not support the demand for the later delinquent rentals. In other words, the "demand or object of the suit" was not the same after the amendment. In Gunter, the issue was prescription, which as already noted, is the thrust of Article 1153. Furthermore, in that case, the medical malpractice alleged in both petitions arose from a single period of treatment. The original petition alleged negligence in diagnosis and surgery; the amendment recited a lack of informed consent. Although the theories of recovery were different, the alleged breach of duty was based upon the same incident. Clearly, this is not the situation in the case sub judice.
To reiterate, when the supplemental and amending petition of November 24, 1992 was filed, it contained allegations relating to a different period of time than the original petition, and contained an additional request for an acceleration of all rentals. The trial judge at the first trial was correct in recognizing delinquencies for a different time period as a new and distinct cause of action not supported by the facts alleged in the original petition.
Therefore, all damages relating to the cause set forth
Page 1 2 3 4 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|