Dorothy Banish Madden v. Steven Ray Fairburn, K.S. Timber Company, Inc., Plaza Insurance Company, XYZ Insurance Company, & Capital Specialty Insurance Corporation ( 2023 )


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  •                   STATE OF LOUISIANA
    COURT OF APPEAL, FIRST CIRCUIT
    DOROTHY BANISH MADDEN                          NO.   2022 CW 1206
    VERSUS
    STEVEN RAY FAIRBURN, K.S.
    TIMBER COMPANY, INC., PLAZA
    INSURANCE COMPANY, XYZ
    INSURANCE COMPANY, & CAPITAL
    SPECIALTY INSURANCE                          FEBRUARY 1, 2023
    CORPORATION
    In Re:     Dorothy Banish Madden, applying for supervisory writs,
    22nd Judicial District Court, Parish of Washington,
    No. 111549.
    BEFORE:    GUIDRY, C.J., WELCH, HOLDRIDGE, WOLFE AND MILLER, JJ.
    WRIT GRANTED.      We  find the trial court abused its
    discretion in denying plaintiff leave to file the first amended
    petition for damages. 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.   Palowsky v. Cork, 2019-0148 (La. App. 1st Cir.
    5/20/20), 
    304 So.3d 867
    , 875.    We conclude those four factors
    are satisfied in this case.     Accordingly, that portion of the
    trial court's October 5, 2022 judgment is reversed and we hereby
    grant plaintiff's, Dorothy Banish Madden, motion for leave to
    file the first amended petition for damages.     The trial court
    further denied as moot the exception of prescription filed by
    defendant, Capitol Specialty Insurance Corporation.   In light of
    our granting plaintiff leave to amend, that portion of the trial
    court's October 5, 2022 judgment is hereby vacated and the
    peremptory exception raising the objection of prescription is
    remanded to the trial court for further proceedings.
    JMG
    JEW
    GH
    SMM
    Wolfe, J., dissents and would deny the writ. The criteria
    set forth in Berlitz Constuction Co., Inc. v. Hotel Investors of
    New Iberia, Inc., 
    396 So.2d 878
     (La. 1981) (per curiam) are not
    met.
    COURT OF APPEAL, FIRST CIRCUIT
    DEPUTY CLERK OF COURT
    FOR THE COURT
    

Document Info

Docket Number: 2022CW1206

Filed Date: 2/1/2023

Precedential Status: Precedential

Modified Date: 2/1/2023