Debra Robertson, individually and as personal representative of the Estate of Gregory Robertson and Kocatatie Thompson v. Unicorp, LLC, Erdace Management, LLC Erdace, LLC, Bradd, LLC and The Payne Company, Inc. ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DEBRA ROBERTSON, NO. 2022 CW 1389
INDIVIDUALLY AND AS PERSONAL
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REPRESENTATION OF THE ESTATE
OF GREGORY ROBERTSON AND
KOCATATIE THOMPSON
VERSUS
UNICORP, LLC, ERDACE APRIL 17, 2023
MANAGEMENT, LLC, ERDACE,
LLC, BRADD, LLC, AND THE
PAYNE COMPANY, INC.
In Re: Unicorp, LLC and National Trust Insurance Company,
applying for supervisory writs, 19th Judicial District
Court, Parish of East Baton Rouge, No. 691219.
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
WRIT DENIED.
PMc
Holdridge, J., concurs in the denial of the writ. The
Second and Restated Petition filed by Debra Robertson relates
back to the date of filing of the original petition in
accordance with La. Code Civ. P. art. 1153. Therefore, the
wrongful death and survival action claims of the minor children
of Gregory Robertson are not prescribed. See Giroir v. S.
Louisiana Med. Ctr., Div. of Hosps., 475 So.2d 1040, 1041 ( La.
1985); Sam v. Sorrel Elec. Contractors, Inc., 525 So.2d 244, 246
La. App. 1st Cir. 1988), writ denied, 532 So.2d 133 ( La.
1988) . All the factors established by the Louisiana Supreme
Court in Giroir for an amending petition to relate back to the
date of filing of the original petition were met in this case.
Debra Robertson had the legal capacity as permanent managing
conservator to file the wrongful death and survival action on
behalf of the minor child, Adian Michael Robertson, at the time
the original petition was filed; the amended claim arises out of
the same conduct or occurrence as set forth in the original
pleading; the defendants either knew or should have known of the
existence of the new plaintiffs ( Mr. Robertson's two other minor
children); the new and old plaintiffs are all minor siblings and
therefore are sufficiently related; the defendants will not be
prejudiced in preparing and conducting their defense.
Greene, J., dissents and would grant the writ. The claims
alleged in the Second Amended and Restated Petition filed by
Debra Robertson, on behalf of the minor children Gregory Charles
Robertson, III, Nevaeh Nichole Robertson, and Adian Michael King
Robertson, are prescribed on their face. See La. Civ. Code
arts. 2315.1 and 2315.2. Furthermore, I find the plaintiff
failed to meet her burden of proving the claims relate back to
the original petition, as the original petition failed to set
forth a legally viable claim. See Watson v. Woldenberg Village,
Inc., 2020-0453 ( La. App. 4th Cir. 7/7/21), 323 So.3d 951.
Accordingly, I would grant the exception of prescription and
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
2022 cw 1389
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dismiss the claims alleged in the Second Amended and
Restated Petition.
COURT OF APPEAL, FIRST CIRCUIT
DEPUTY
sJCLERK OF COURT
FOR THE COURT