David M. Gandy v. Robert M. Zacary and State Farm Mutual Automobile Insurance Company ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DAVID M. GANDY NO. 2021 CW 1067
VERSUS
ROBERT M. ZACARY AND STATE DECEMBER 6, 2021
FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
In Re: Robert M. Zacary and State Farm Mutual Automobile
Insurance Company, applying for supervisory writs,
22nd Judicial District Court, Parish of St. Tammany,
No. 202012443.
BEFORE: MCDONALD, LANIER, AND WOLFE, JJ.
WRIT GRANTED. The district court' s July 29, 2021 judgment
dismissing the peremptory exception of prescription filed by the
defendants, Robert M. Zacary and State Farm Mutual Automobile
Insurance Company, is reversed. The original petition asserted
that plaintiff, David M. Gandy (" Gandy"), was the owner of the
alleged damaged vehicle, and the damage occurred on June 14,
2019. However, the evidence submitted to the district court
affirmatively proved that Redline Motorsports, LLC was the owner
of the vehicle at issue, and it did not assert its claim until
the supplemental and amending petition was filed on March 18,
2021, more than one year after the alleged damage. While Gandy
attempted to assert the claim in the amended petition " as an
agent" of Redline Motorsports, LLC, a member of a limited
liability company " is not a proper party to a proceeding by or
against a limited liability company," and "[ a] member shall have
no interest in limited liability company property." La. R. S.
12: 1320( C); La. R. S. 12: 1329; see also Northeast Realty, L. L. G.
v. Misty Bayou, L. L. C., 40, 573 ( La. App. 2d Cir. 1/ 25/ 06), 920
So. 2d 938. The original petition provided no indication that
any person or entity other than Gandy had claims against the
defendants, and the addition of a limited
liability company
added a wholly new plaintiff by a party with no right of action
to file the suit originally, and therefore, we find the factors
for relation back set forth in Giroir v. So. Louisiana Med.
Ctr., Div. Of Hospitals, 475 So. 2d 1040, 1044 ( La. 1985), have
not been met, and relation back of the amended petition does not
apply. See Ahmed v. Downman Development, L. L. G., 2017- 0114 ( La.
App. 4th Cir. 12/ 28/ 17), 234 So. 3d 1111. Thus, the proper
plaintiff, Redline Motorsports, LLC, failed to file suit within
one year of the alleged tort damage. See La. Civ. Code art.
3492. Accordingly, the exception of prescription is granted,
and the plaintiff' s claims are dismissed.
JMM
WIL
EW
COURT OF APPEAL, FIRST CIRCUIT
ell
DEPUTY CLERK OF COURT
FOR THE COURT