author: Judge Roland L. Belsome

text:
    SUCCESSION OF Benson A. KANSAS
    NO. 2017-CA-0477
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 21, 2017

      Sidney A. Cotlar, ATTORNEY AT LAW, 4532 Transcontinental Drive, Me-tairie, LA 70006, Fáun L.'Fenderson, ATTORNEY AT LAW, 700 Camp Street, Suite 318, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Dorothy L. Tarver, TAGGART MORTON, LLC, 1100, Poydras Street, Suite 2100, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome)
   Judge Roland L. Belsome

hln this succession proceeding, the Appellant, Jacob Kansas, appeals the trial court’s judgment on his motion for new trial. For the following reasons, we reverse and render in part, vacate in part, and affirm in part.

FACTS AND PROCEDURAL HISTORY

Benson Kansas died testate on February 9, 2001. The only asset to Benson’s estate was a condominium located at 1921 Pryta-nia Street, Unit T, which was in poor condition. Jacob Kansas, an attorney and distant cousin to Benson, paid for his burial. In exchange, Raymond Kansas, Benson’s brother, assigned his interest in his brother’s estate to Jacob.

Through his wife, Jacob learned that Judge Max Tobias drafted the will in the late 1970’s while in private practice. Jacob tried on several occasions to retrieve the will from Judge Tobias, who had indicated that he was trying to locate it. While waiting on the production. of the will, Jacob paid extensive costs associated with the condominium, including cleaning fees, appraisals, past due condominium fees and property taxes.'Finally, in January of 2007, Judge Tobias produced the will. On January 24, 2007, Jacob filed the following in association with the succession: a petition for recordation and execution of the testament, petition for appointment as dative testamentary administrator, sworn detailed descriptive list, administrative oath, letters of administration, and a proof of claim. On the same day, the trial court recorded the will and appointed Jacob as the dative testamentary administrator. Jacob was unable to locate the other heir, Rhonda | aB orman, until early 2015, when he hired a new attorney, who happened to know her.

After locating Ms. Borman, on November 9, 2015, Jacob filed a rule to show cause why various succession issues should not be resolved. In particular, Jacob raised four issues to be addressed by the trial court, involving:' 1) the assignment of succession right by Raymond, 2) renunciation of heirs, 3) reimbursement of expenses he personally paid oh behalf of the estate, and 4)' authority 'to sell the condominium. Rhonda’s two sons, Matthew and Daniel Borman, who were successors- in interest after her death, opposed the Rule to Show Cause filed by Jacob.

On July 26, 2016, after a. hearing, the trial court issued a judgment, consisting of six rulings: 1) recognizing Raymond’s assignment of succession interests to Jacob; 2) recognizing Jacob’s one-half interest, Matthew Borman’s one-fourth interest, and Daniel Todd Borman’s one-fourth interest in the estate; 3) removing Jacob as administrator; 4) appointing Matthew Borman as dative testamentary executor; 5) denying the sale of the condominium; and 6) paying Jacob executor compensation and reimbursing Jacob for expenses he incurred after he was appointed administrator in 2007.

Jacob filed a motion for new trial. On January 6, 2017, the trial court granted the motion for new trial “for reargument only.” After the hearing, it issued a judgment on the motion for' new trial on February 7, 2017. The substance of the judgment remained substantially the same as the first judgment, othér than increasing the reimbursement amount due to. Jacob. This timely devolutive appeal follows.

STANDARD OF REVIEW

(aWhen the issues presented on appeal involve fact questions or mixed questions of law'and "fact, the manifest error standard applies; when’the issues involve questions of law, the de novo standard applies. Boes Iron Works, Inc. v. Gee Gee. Grp., Inc., 16-0207, p. 8 (La. App. 4 Cir. 11/16/16), 206 So.3d 938, 946, writ denied, 17-0040 (La. 2/10/17), 216 So.3d 45. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Hemp's Constr., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La. App. 4 Cir. 12/1/10), 52 So.3d 970, 973. “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights,” South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 07-0599, p. 5 (La. App. 4 Cir. 2/27/08), 980 So.2d 89, 93. When the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required, whenever possible, to re-determine the facts de novo from the entire record and render a judgment on the merits. Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 4 (La. 2/20/95), 650 So.2d 742, 745 (citation omitted).

LAW AND ANAJLYSIS

In this appeal, Jacob asserts four assignments of error: 1) the trial court erred in failing to award him reimbursement for all personal funds advanced in order to preserve the only- succession asset, the condominium; 2) the trial court erred in removing Jacob as succession administrator; 3) the trial court erred in appointing Matthew Borman as dative testamentary executor; and 4) the trial court erred in denying the request to sell the' condominium,

|4In the first assignment of error, Jacob argues that the trial .court legally erred in failing to reimburse him for all expenses for the preservation of the condominium, particularly for those prior expenses incurred prior to being appointed as administrator of the estate. We agree.

Succession occurs at the death of a person. La C.C. art. 934. Immediately at the death of the decedent, universal successors acquire ownership of the estate. La. C.C. art. 935. Ownership of the same thing by two or more persons is ownership in indivi-sión, or co-ownership. See La C.C. art. 797. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate, as well as his interest in the estate as a whole. La. C.C. art. 938(A). A co-owner may, without the concurrence of any other co-owner, take necessary steps for the preservation of the thing that is held in indivisión. La. C.C. art. 800. A co-owner who, on account of the thing held in indivisión, has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.

If a successor exercises his rights of ownership after the qualification of a succession representative, the. effect of that exercise is subordinate to the administration of the estate. La. C'C. art. 938(B). The succession representative is a fiduciary with respect to the succession, and has the duty of collecting, ’ preserving, and managing the. property of the succession in accordance with law. See La C.C.P. arts. 3191 and 3221. The succession representative may sell estate | ¿property and pay estate' debts, but only with the authorization of the court. See La. C.C.P. arts. 3261 and 3301.

Reviewing the facts of this case in the light of the applicable law, it is clear that Jacob, Matthew and Daniel became owners in indivisión of Benson Kansas’s condominium once they accepted their succession rights. At that point, as a co-owner of the condominium, Jacob had the right to exercise all rights of ownership of that property, including taking necessary steps for its preservation and management. We find the Appellees’ argument that Jacob was a third party, and not a universal legatee, unpersuasive. Once Jacob accepted the assignment by Raymond, who was a universal legatee, he could exercise all of the rights Raymond could have asserted, including ownership rights. See La. C.C. art. 2650; In re Succession of Chambers, 14-1030, p. 4 (La. App. 3 Cir. 3/4/15), 160 So.3d 584, 586-87, writ denied, 15-0694 (La. 6/1/15), 171 So.3d 263 (wherein the appellate court found that a medical foundation that was assigned the rights of an heir was permitted to exercise all rights of that heir).

However, once Jacob was appointed as the administrator of the succession on January 24, 2007, those ownership rights became subordinate to the administration of the property, pursuant to the succession. And Jacob’s rights to administer the property were subject to court approval. Therefore, once he was appointed by the court, Jacob could no longer make unilateral decisions about estate property; his decisions were subject to the authority of the court. See Succession of Bell, 06-1710 (La. App. 1 Cir. 6/8/07), 964 So.2d 1067, 1073 (where the appellate court found a universal successor was not entitled to reimbursement |flof certain expenses incurred after the appointment of the administra-trix, since those expenses were subject to court approval once an appointment was made).

It is evident from its reasons for judgment that the trial court ignored Jacob’s ownership rights under La. CC. arts. 934-35, 938(A) and 800. In particular, it refused to reimburse him for ownership related expenses that were incurred prior to the appointment of an administrator. Since the trial court legally erred in failing to recognize lawful expenses incurred by Jacob before the succession was open, and subject to the authority of the court, we review this de novo.

The record reflects that Jacob expended the following expenses in association with the succession proceedings, or in order to preserve and manage the condominium.

1. Sanitizing Unit after Benson’s death $434,27 (1/2 of $868.54)
2. Settlement of Judgment and court costs for unpaid condominium fees $6,796.28 (1/2 of $13,592.56)
3. Condominium dues $13,354.75 (1/2 of $26,709.50)
4. Special Assessments $1,436.32 (1/2 of $2,872.65)
5. Property Taxes $3,830.09 (112 of $7,660.18)
6. Appraisals $387.50 (1/2 of $775.00)
7. Court Costs $389.00
8. Succession Attorneys’ Fees $5,722.53
9. Executor Compensation $1,125.00

17Given the foregoing, we reverse the trial court’s judgment insofar as it denied reimbursement to Jacob Kansas for monies spent in association with the preservation and management of the property prior to the opening of succession proceedings. Accordingly, we render judgment in the amount of $33,475.74, in the favor of Jacob Kansas for reimbursement of expenses in association with opening and administering the succession proceedings, and preserving and managing the condominium prior to opening succession, plus legal interest from the date of judicial demand until paid.

In the second assignment of error, Jacob argues that the trial court erred in removing him as dative testamentary executor. Jacob asserts that the trial court did not follow the proper procedure for removing and replacing him as a succession representative. In particular, he argues that since there was no motion filed, he was not given an opportunity for a contradictory hearing on the matter. In a related assignment of error, number three, he asserts that the trial court erred in appointing Matthew Borman as dative testamentary executor.

The record reflects that the trial court removed and replaced the representatives in the succession at the initial hearing and in the judgment on the motion for new trial, signed on February 7, 2017. The procedure for removal of a succession representative is governed by Louisiana Code of Civil Procedure articles 3182 and 3396.20. Article 3182 provides, in pertinent part, “The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office.” Similarly, Article 3396.20 authorizes the court “on Rmotion of any interested person, after a contradictory hearing” to remove an independent administrator for any of the reasons provided by applicable law. In a contested proceeding, these articles require a rule to show cause and a contradictory hearing to remove a succession representative. See In re Succession of Cannata, 14-1546 (La. App. 1 Cir. 7/10/15), 180 So.3d 355, 366, reh’g denied, (08/12/15), writ denied, 15-1686 (La. 10/30/15), 180 So.3d 303.

In this case, there was no motion for removal or rule to show cause issued directing Jacob to appear and show cause at a contradictory hearing why he should not be removed as a succession representative. Therefore, the issue was not properly before the court. The trial court issued its ruling removing Jacob and replacing him with Matthew at a hearing scheduled in connection with other motions filed by the parties. After the trial court conducted the. hearing, it raised the removal issue indicating that there was a status conference regarding a request for removal and consent by the parties to resolve it at the current hearing.

We do not construe any off the .record discussion as sufficiently placing Jacob on notice that he had to appear and show cause, why he should not be removed as dative testamentary administrator of Benson’s succession. There was no motion, oral or written, on the record. Moreover, raising the issue after the submission of'the hearing was not proper as Jacob had no opportunity to defend his position, object to the proceeding, or waive notice and proceed on the .merits. Absent the required notice and contradictory hearing, the trial-court erred in removing and replacing the succession representatives. To the extent the initial judgment and the February 7, 2017; judgment removed and replaced the succession representative, "it is vacated. ’ '

|gIn the final assignment of error, Jacob argues that the trial court erred in denying his request to sell the condominium. A succession representative may sell succession property'in order to pay debts and legacies, or for any other purpose,'’’when authorized by the court. La. C.C. P. art, 3261. In considering an application for authority tb sell succession property, the trial court must give consideration to any opposition and reasons for same. If the court considers the sale in the best interest of the succession, it may authorize either the public or private sale of the succession property. Succession of Taglialavore, 500 So.2d 393, 396 (La. 1987). The approval of an application to sell succession property at privaté sale rests within the sound discretion of the trial court. Succession of Taglialavore, 500 So,2d at 397. Notably, the Bormans’ " did not raise any opposition to selling the condominium, other than asserting that the assignment issue needed to be resolved first. However, given that the trial court had serious concerns with the Jacob’s administration of the succession,' as evidenced in the record, we cannot say it abused its discretion in denying Jacob’s request to sell the condominium. Accordingly," we affirm the trial court’s judgment denying the sale of the property.

CONCLUSION

Given "the foregoing,‘we "reverse and render judgment in the amount of $33,475.74, in the favor of Jacob Kansas for reimbursement of expenses associated with opening and administering the succession, as well as preserving and managing the condominium "prior to opening the succession, plus legal intérest from the date of judicial demand until paid. Additionally, we vacate the trial court’s judgments removing and replacing the succéssion representative. Finally, | tnwe affirm the trial court’s judgment denying the sale of the property, all parties to bear their own costs.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART; VACATED IN PART

      . 'Jacob filed an amended proof of claim on September 2, 2015.

      . Benson’s will appointed Judge Tobias as the executor of his estate; however, Judge Tobias declined his appointment since he was a sitting judge with this Court.

      . Notably, Jacob did not appeal the trial court’s executor compensation award in the amount of $1,125.00.

      . If the co-owner who incurred such' expenses had the enjoyment of the thing held in indivi-sión, his reimbursement shall be- reduced in proportion to the value of the enjoyment. La. C.C. art. 806.

      .La. C.C. art. 1585 states, in relevant part: “A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies."

      . Benson died in the unit, and his body was not discovered for several days.

      . Benson is entitled to a credit for one-half of the totals he paid in association with preservation and management of the entire estate. This amount represents a contribution in proportion to Matthew and Daniel's one-fourth ownership interest.

      .Jacob contends that he is due an additional $5,645.00 in attorneys’ fees and expenses related to defending a Petition to Quiet a Tax Sale on the condominium. However, there is nothing in the record to establish the amount of these payments. Consequently, Jacob is not entitled to sums not proven by the evidence at trial. Succession of Sport, 900 So.2d 1054, 1063 (La.App. 4 Cir. 2005) (where this Court concluded that a succession representative who seeks court approval to pay fees must "meet a threshold burden of establishing the basis and amount of the fees,” as well as prove that the fees were for the benefit of the estate, and as such, a legitimate estate debt).

      . Though Jacob contends he spent $832.00 in courts costs, the record does not support this amount.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Jana RITTER v. Victor LORASO, III
    NO. 2017-CA-0517
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 22, 2017

      D. Douglas Howard, Jr., Jonathan C. Pedersen, HOWARD REED DEL HIER-RO & PEDERSEN, 839 St. Charles Avenue, Suite 306, New Orleans, LA 70130-3743, COUNSEL FOR PLAINTIFF/APPELLANT
    Stephen C. Carleton, Jeffrey S. Witten-brink, Carmen T. Hebert, CARLETON LORASO HEBERT & WITTENBRINK, LLC, 445 North Boulevard, Suite 625, Baton Rouge, LA 70802, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

| iThis is an action for damages for spoliation of evidence arising from a separate filiation and child support suit brought by appellant Jana Ritter against appellee Victor Loraso, III. Ms. Ritter alleges that, in the domestic proceeding, Mr. Loraso intentionally concealed or refused to produce relevant audio and video recordings in which he may have made improper statements to the parties’ minor child. Ms. Rit-ter appeals the trial court’s March 20, 2017 judgment granting Mr. Loraso’s peremptory exception of prescription, and dismissing Ms. Ritter’s action. For the reasons that follow, we reverse the trial court’s judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The Domestic Action

On April 4, 2013, Ms. Ritter fíled a Petition to Establish Filiation and Child Support (the “Domestic Action”), naming Mr. Loraso as the defendant. Mr. Loraso, an attorney, represented himself. In the Domestic Action, Ms. Ritter sought to establish that Mr. Loraso was the father of her then-unborn child and, thereafter, to obtain child support.

On February 12, 2014, the parties entered into a consent judgment wherein Mr. Loraso formally acknowledged that he was the father of the minor child, and the parties established, on an interim basis, joint custody, visitation guidelines, and child support obligations. On March 20, 2014, Mr. Loraso filed a motion asking the trial court to designate him as the primary domiciliary parent, and give him |2equal physical custody of the child. On April 23, 2014, Ms. Ritter filed a motion seeking sole custody of the child.

The child custody trial was held on July 13-14, 2015, and November 9-12, 2015. On December 15, 2015, the trial court signed a judgment granting the parties joint custody of the minor child. The judgment also designated Ms. Ritter as the domiciliary parent, and gave Mr. Loraso visitation according to graduated physical custody schedule to be set by the court.

Thereafter, Ms. Ritter filed a Motion for New Trial seeking a modification of the December 15, 2015 judgment based, in part, on the alleged spoliation of evidence by Mr. Loraso in the form of video and audio tapes which he refused to produce in response to Ms. Ritter’s discovery requests. On December 23, 2015, Mr. Loraso filed an opposition to Ms. Ritter’s Motion for New Trial in which he stated that, with respect to video and audio recordings, “admittedly, [he] produced some, but not all, to Ms. Ritter.” Mr. Loraso also stated that “[t]he court heard extensive argument, multiple times, on this issue' at trial, and ruled from the bench that the failure to produce the videos warranted an adverse inference.”

On February 1, 2016, a hearing was held on Ms. Ritter’s Motion for New Trial. On April 5, 2016, the trial court signed a judgment granting the motion. In the'judgment, the trial court again designated’ Ms. Ritter as the domiciliary parent of the child, and gave Mr. Loraso visitation according to graduated physical custody periods to be set forth by thie court. In its. Reasons for Judgment, the court stated that, in rendering the judgment, it had “considered] the adverse inference against Mr. Loraso for spoliation of evidence.”

On April 15, 2016, Ms. Ritter filed another Motion for New Trial, again alleging spoliation of evidence:

IsThe failure to produce this evidence is highly unfair and injurious to Ms. Ritter. This type of blatant disregard for the judicial process and fair play should not go unaddressed, and merely stating that the Court considered an adverse inference against Mr. Loraso for spoliation of evidence does not address the issue. Ms. Ritter and the Court were entitled to the truth of the content of these recordings. Mr. Loraso has used their alleged content in making accusations against Ms. Ritter in. order to manipulate, the custody arrangement of Ms. Ritter and Mr. Loraso’s daughter. A trial which addresses the best interests of a child should not be subjected to this type of manipulation.

The trial court held a hearing on Ms. Ritter’s second Motion for New Trial on June 9, 2016. On June 29/2016,- the trial court signed a judgment denying in part and granting in part Ms. Ritter’s motion. The court granted the Motion for New Trial on the grounds of spoliation, saying:

Generally, where a party destroys, conceals, or fails to produce evidence within his or, her control, it gives rise to an adverse presumption that had the evidence been produced, it would have been detrimental to the litigant’s case. Mr. Loraso alleged that the recordings supported the claims of his petition for custody of the minor child. More specifically, Mr. Loraso asserted, both in his pleadings and in hearings before the Court, to possess video and audio recordings wherein Ms. Ritter was alleged to regularly interfere with and interject herself into his supervised visitation time with the minor child. Ms. Ritter alleged that the audio and video recording would actually demonstrate that she was an observer who intervened only as necessary regarding the care of the minor child. Ms. Ritter further averred that the audio and video recordings would also demonstrate that in addition to having offered the child beer, Mr. Loraso also left an unidentified pill on a coffee table within reach of the minor child. The production of these recordings was ordered by the Court on October 29, 2014. Counsel for Mr. Loraso indicated that the evidence would be produced. As of July 13, 2015, the first day of trial in this matter, evidence had not been produced.. Therefore, this Court finds that Mr. Loraso committed spoliation of evidence when, he failed to produce the audio and video recordings in his possession in accordance with the orders of this Court. As a result of this ruling, the Court presumed that the audio and video recordings would not only have failed to show Ms. Ritter interfering with:and interjecting herself into the supervised visitation, .but would have also corroborated Ms. Ritter’s testimony that Mr. Loraso offered the child a beer and left an unidentified pill in reach of the minor child.

|/The trial court also ordered that Mr. Loraso be evaluated by a physician to determine whether his prescribed medications affected his ability to be the "sole caretaker of the child for an extended period of time. The court also issued a detailed visitation schedule for Mr. Loráso.

The Spoliation Action

On November 17, 2016, Ms. Ritter filed a Petition for Damages against Mr. Loraso asserting a. cause of action for spoliation of evidence (the “Spoliation Action”). Ms. Rit-ter alleged that Mr. Loraso “intentionally concealed, or otherwise refused to produce relevant audio and video recordings that were in his possession, [and] which, documented] visitations with the minor child at Mr. Loraso’s home, as well as visitation exchanges.”

On December 27, 2016, Mr. Loraso filed Peremptory Exceptions of Prescription, Res Judicata, and No Cause of Action. In the Exception of Prescription, Mr. Loraso argued that Ms. Ritter’s spoliation claim was prescribed' because she did not bring the Spoliation Action until November 17, 2016, more than one year after the last day of the custody trial, which was on November 12, 2016. After a hearing on February 17, 2017, the trial court signed a judgment dated March 20, 2017 granting Mr. Lora-so’s Exception of Prescription, and dismissing Ms. Ritter’s action. The trial court denied the Exceptions of Res Judicata and No Cause of Action. Ms.. Ritter timely appealed.

DISCUSSION

Standard of Review

“When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the 15issue .of prescription are subject to the manifest error-clearly wrong standard of review.” In re Med. Review Panel of Hurst, 16-0934, p. 4 (La. App. 4 Cir. 5/3/17), 220 So.3d 121, 125-26, writ denied, 17-803 (La. 9/22/17), 228 So.3d 744, 2017 WL 4546566. “The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one.” Id., 16-0934, p. 4, 220 So.3d at 126.

“If the trial .court commits an error of law, however, the applicable standard of review is de-novo.” Richard v. Richard, 14-1365, p, 9 (La. App. 4 Cir. 6/3/15), 171 So.3d 1097, 1102-03. “The standard controlling our .review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.” Jones v. Sewerage & Water Bd., 16-0691, p. 3 (La. App. 4 Cir. 3/8/17), 213 So.3d 497, 499.

Spoliation of Evidence

Louisiana recognizes a cause of action for intentional spoliation. Fiveash v. Pat O’Brien’s Bar, Inc., 15-1230, p. 8 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 918. “The theory of ‘spoliation of evidence’ refers to an intentional destruction of evidence for [the] purpose of depriving opposing parties of its use.” Quinn v. RISO Inv., Inc., 03-0903, p. 5 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926-27. “The tort of spoliation of evidence has its,roots in the eviden-tiary doctrine of ‘adverse presumption’, which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed |fithe evidence unless such destruction was adequately explained.” Id., 03-0903, p. 5, 869 So.2d at 927.

Spoliation, as an intentional tort, is a delictual action subject to the one-year liberative prescriptive period set forth in La. C.C. art. 3492. Olympia Minerals, LLC v. HS Resources, Inc., 13-110, p. 23 (La. App. 3 Cir. 4/1/16), 162 So.3d 674, 689. Under La. C.C. art. 3492, prescription “commences to run from the day injury or damage is sustained.” “When damages are not immediate, the action in damages thus is formed and begins to prescribe only when the tortious act actually produces damage and not on the day the act was committed.” Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992). For purposes of commencing prescription, the damage suffered must at least be actual and appreciable in quality — that is, determinable and not merely speculative. Id.

The trial court found that prescription began to run “the day [ ] that the trial of the [custody] matter was held where the videos could have been useful.” The trial court concluded that Ms. Ritter’s Spoliation Action was prescribed because the trial of the Domestic Action began on July 13, 2015 and ended on November 12, 2015, and Ms. Ritter did not file her Spoliation Action until November 17, 2016, more than a year later.

On appeal, Ms. Ritter argues that prescription began to run on December 15, 2015, when the trial court rendered its judgment in the Domestic Action, so that her Spoliation Act was filed timely, In the alternative, Ms. Ritter contends that she did not learn that Mr. Loraso had intentionally concealed the video and audio tapes until December 23, 2015, when he admitted such in his opposition to her Motion for New Trial. Mr. Loraso contends that prescription began to run when the trial of 17the Domestic Action ended. We must decide when a cause of action begins to run for intentional spoliation of evidence.

Neither party cites case law supporting their arguments as to the accrual date for Ms. Ritter’s cause of action for spoliation, and we found only one Louisiana case that addressed this issue. In Clavier v. Our Lady of the Lake Hosp., Inc., 12-0560, p. 13 (La. App. 1 Cir. 12/28/12), 112 So.3d 881, 890, the First Circuit found that a cause of action for spoliation of .evidence arises on the date that the .plaintiff learned of the loss or destruction of the evidence, and not on the date of the unfavorable ruling on plaintiffs underlying medical malpractice action.

We do not find Clavier persuasive. As discussed aboye, prescription does not begin to run until the plaintiff sustains actual (not merely speculative) damages. During the trial of the Domestic Action, whether Ms. Ritter would suffer actual damages from the loss of the, evidence was wholly speculative. It was only when the underlying Domestic Action was resolved by judgment that the damage would have became demonstrable. Hence, we agree with courts in other states .which have concluded that a spoliation claim does not begin to accrue -until the plaintiff has sustained actual harm, which occurs when the underlying claim has been resolved. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990) (“we believe resolution of a plaintiffs underlying claim is, necessary to demonstrate actual harm and prevent speculative recovery in a spoliation action”); Mayfield v. ACME Barrel Co., 258 Ill.App.3d 32, 196 Ill.Dec. 145, 629 N.E.2d 690, 695 (1994) (“The threat of some future harm that has not yet been realized is insufficient to satisfy this [actual injury] element of the claim and, as such, no action for spoliation can be brought until after the underlying claim which is dependent upon the missing evidence is lost.”); Fox v. Cohen, 84 Ill.App.3d 744, 40 Ill.Dec. 477, 406 N.E.2d 178, 8183 (1980) (affirming dismissal of claim for destruction of evidence because underlying medical malpractice action was still pending, so that “plaintiff has not yet sustained any injury”); Jimenez v. Community Asphalt Corp., 968 So.2d 668, 672 (Fla. Dist. Ct. App. 2007) (“[T]he damage in a spoliation claim is the inability to use the evidence in the underlying proceedings. For this reason, damages in a spoliation claim can only be determined after the underlying claim is decided.”); Kent v. Costruzione Aeronautiche Giovanni Agusta, No. 90-2233, 1990 WL 139414, at *7 (E.D. Pa. Sept. 20 1990) (“[I]t is only after litigation of the underlying claims that the extent to which plaintiff was prejudiced by the destruction of evidence becomes clear.”); Baugher v. Gates Rubber Co., 863 S.W.2d 905, 913 (Mo. Ct. App. 1993) (“the underlying action must be resolved and damage thus established before a cause of action for negligent spoliation will arise”). See Maria A. Losavio, Synthesis of Louisiana Law on Spoliation of Evidence—Compared to the Rest of the Country, Did We Handle It Correctly?, 58 La. L. Rev. 837, 856 (Spring 1998) (“One way courts have tried to define prejudicial injury is by requiring the plaintiff to first litigate the underlying lawsuit prior to bringing the spoliation-of-evidence tort claim.”) (collecting cases).

We are also persuaded by decisions of Louisiana courts that have adopted a similar rule for the accrual of prescription on other tort actions arising from litigation-related misconduct. In Marchand v. Miazza, 151 So.2d 372 (La. App. 4th Cir. 1963), and Demery v. Voelker, 216 So.2d 328 (La. App. 4th Cir. 1968), the plaintiffs brought actions for legal and notarial malpractice in which they alleged that the defendants’ neglect in prior proceedings had caused them to lose certain property rights. In both cases, when the malpractice suits were filed, the other litigation was still pending to decide whether the plaintiffs had any ownership frights in the property involved. This court concluded in Mar-chand and Demery that the one-year prescriptive period for the malpractice suits did not commence until plaintiffs had suffered damage in the form of adverse judgments in the separate pending lawsuits. Marchand, 151 So.2d at 375-76; Demery, 216 So.2d at 332.

Likewise, in Hero Lands Co. v. Borello, 459 So.2d 658 (La. App. 4th Cir. 1984), the plaintiffs brought a tort action against a court reporter for damages resulting from the loss of a transcript of trial testimony in a prior proceeding. Although the plaintiffs were aware that the transcript had been lost more than two years prior to filing suit, this court found that their tort claim was not prescribed because it was brought within one year of the trial court’s judgment ordering a retrial of the underlying action, to the plaintiffs’ detriment or injury.

In Giordano v. Tullier, 139 So.2d 15 (La. App. 4th Cir. 1962), the plaintiff filed a tort action for malicious prosecution of a civil suit and for alleged libel contained in the pleadings in that suit. This court held that prescription did not begin to run until the underlying proceeding terminated with a final judgment. See also Marionneaux v. King, 331 So.2d 180 (La. App. 4th Cir. 1976) (termination of underlying legal proceedings wherein defamatory statements were allegedly made must occur before cause of action for libel and slander is perfected); Ortiz v. Barriffe, 523 So.2d 896 (La. App. 4th Cir. 1988) (reversing judgment granting exception of prescription because “an action for defamation arising out of allegations made in judicial proceeding[s], and made against a party to those proceedings, cannot be brought until those proceedings are terminated.”).

Based on these authorities, we find that prescription begins to run on a claim for intentional spoliation of evidence when the plaintiff actually suffers damages, | mwhich is when a final judgment is rendered in,the underlying action, and not when the plaintiff learns of the destruction or loss of the evidence.

Applying this rule, we find that prescription began to run on Ms. Ritter’s claim for spoliation of evidence on June 29, 2016, when the trial court rendered its final custody judgment in the underlying Domestic Action. Ms. Ritter filed her Spoliation Action on November 17, 2016, well within the one-year prescriptive period. The trial court, therefore, erred in finding that Ms. Ritter’s cause of action was prescribed.

CONCLUSION

Based on the foregoing, we reverse the trial court’s judgment sustaining Mr. Lora-so’s Exception of Prescription, overrule the exception, and remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED; REMANDED

LOBRANO, J., CONCURS IN THE RESULTS.

      ; Louisiana has no cause of action for'negligent spoliation of evidence. Reynolds v. Bordelon, 14-2362, p. 14 (La. 6/30/15), 172 So.3d 589, 600.


author: Judge Paula A. Brown

text:
    Somvang CHANTHASALO v. Melissa DESHOTEL, Debra Schum, State Farm Mutual Automobile Insurance Company, Ronald J. Mitchell, USAA Casualty Insurance Company, and Progressive Security Insurance Company
    NO. 2017-CA-0521
    Court of Appeal of Louisiana, Fourth Circuit.
    12/27/2017

      Clay Garside, WALTZER WIYGUL & GARSIDE, LLC, 14399 Chef Menteur Highway, Suite D, New Orleans, LA 70129, COUNSEL FOR APPELLANT, SOMVANG CHANTHASALO
    Sophia G. Pappas, Sarah C. Douglas, FREDERICK A. MILLER & ASSOCIATES, 3860 North Causeway Boulevard, Suite 1700, Metairie, LA 70002, COUNSEL FOR DEFENDANTS/APPEL-LEES, MELISSA DESHOTEL AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Ronald K. Bell, CASLER, BORDE-LON, LAWLER, 2450 Severn Avenue, Suite 200, Metairie, LA 70001, COUNSEL FOR DEFENDANT/APPELLEE, PROGRESSIVE SECURITY. INSURANCE COMPANY
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase) Judge Marion F. Edwards, Pro Tempore,
   Judge Paula A. Brown

| ¶ This is a civil appeal, which arises out of two automobile accidents sustained by the Plaintiff/Appellant, Somvang Chantha-salo (“Mr. Chanthasalo”). Mr. Chanthasalo, appeals the district court’s judgment, that granted motions for summary judgment filed on behalf of Defendants/Appellees, Melissa Deshotel (“Ms. Deshotel”) and her insurer, State Farm Mutual Automobile Insurance Company (collectively, “State Farm”); and Progressive Security Insurance Company (“Progressive”), Mr. Chan-thasalo’s uninsured/underinsured motorist carrier. For the reasons that' follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 17, 2014⅛ while traveling on Interstate-10, near the Williams Boulevard and Loyola Street exits in Kenner, Louisiana, Ms. Deshotel’s vehicle rear-ended Mr. Chanthasalo’s truck (“Accident No. 1”). After the collision, Mr. Chanthasalo and Ms. Deshotel pulled their respective vehicles onto the shoulder of the road to assess property damages and report the accident to the police. Approximately five to fifteen minutes later, Ronald Mitchell (“Mr. Mitchell”) drove his vehicle into the fear of. Debra Schum’s (“Ms. Schum”) -vehicle (“Accident No. 2”). The impact of Accident No. 2 pushed Ms. Schum’s vehicle onto the shoulder of the road, causing it to strike both Ms. Deshotel and Mr. Chan-thasalo. Mr. Chanthasalo incurred significant injuries as a result of Accident No. 2.

lijOn January 16, 2015, Mr. Chanthasalo filed a Petition for Damages (“the Petition’) against Ms. Deshotel, Ms. Schum, and their insurer, State Farm; Mr. Mitchell and his insurer, USAA Casualty Insurance Company (USAA); and Progressive. The Petition alleged that the accident was caused by-the negligence of Ms. Deshotel; Ms. Schum, and Mr. Mitchell and the defendants were jointly,.solidarily, and severally liable unto him for his personal injuries.

On January 6, 2017, State Farm, as the liability insurer of Ms. Deshotel, filed a motion for summary judgment. State Farm contended that Mr. Chanthasalo’s lawsuit arose from two accidents, not one. State Farm argued that by Mr. .Chantha-salo’s own admission, Accident No. 1 was minor and he attributed his injuries exclusively to Accident No. 2. State Farm asserted Ms. Deshotel owed no continuing duty to Mr. Chanthasalo beyond Accident No. 1, arguing that Mr. Chanthasalo offered no facts to prove that Ms.-Deshotel’s alleged negligence from Accident No, 1 was the legal cause of the injuries he sustained from Accident No. 2. State Farm prayed for dismissal of Mr. Chanthasalo’s suit against Ms. Deshotel.

Progressive filed- its motion for summary judgment on January 10, 2017. In its motion, Progressive acknowledged that it issued a policy of insurance to Mr. Chan-thasalo with uninsured/underinsured (“UM”) bodily -liability limits of $15,000.00 per person and $30,000.00 per accident. However, Progressive argued that Mr. Chanthasalo was not entitled to UM benefits for Accident No. 1 because as |ahe admitted, he was not injured in that accident. Progressive also noted that it had already tendered the $15,000.00 UM policy limits for the damages incurred as a result of Accident No. 2.

In opposition to State Farm’s summary judgment motion, Mr. Chanthasalo argued that pursuant to La. C.C. art. 2315, Ms. Deshotel was responsible for the damages he sustained from Accident No. 2. He averred that the duty owed from Accident No. 1 extended to Accident No. 2 because it was entirely foreseeable that a second collision might occur after the parties — as required by law — had pulled onto the shoulder of a dangerous, busy interstate highway to call the police and exchange information.

Mr. Chanthasalo’s opposition to Progressive’s summary judgment motion asserted that its UM exposure for Accident No. 1 depended on whether Ms. Deshotel was liable for the injuries he sustained in Accident No. 2. Accordingly, Mr. Chantha-salo claimed to the extent that any liability assessed against Ms. Deshotel for Accident No. 2 exceeded her insurance policy limits, Progressive had potential UM exposure for Accident No. 1.

The district court heard argument on the summary judgment motions on February 17, 2017. After taking the matter under advisement, the district court granted both summary judgment motions. Pursuant to a consent motion to include decretal language in the judgment, the district court rendered an amended L judgment on March 2, 2017. The amended judgment reaffirmed the grant of the respective summary judgment motions.

In the amended judgment, the district court found no genuine issues of material fact to preclude State Farm’s request for summary judgment, and specifically dismissed all claims asserted by Mr. Chan-thasalo against Ms. Deshotel and State Farm, with prejudice. The amended judgment also granted State Farm’s motion to designate the judgment as a final judgment.

In its incorporated reasons for judgment, the district court found two separate and distinct accidents occurred on January 17, 2014. It reasoned that “the duty owed by Defendant Melissa Deshotel and the scope of protection afforded at law to the Plaintiff, Somvang Chanthasalo, did not extend from the first accident to the second accident involving different actors.” The district court further reasoned:

[T]he actions of Defendant Melissa Des-hotel were not substantial in character relative to the cause of the second accident. There is no “ease of association” in which the original accident at issue (the first accident) became the legal and/and or proximate cause of the second accident. Thus, the Plaintiff having raised no genuine issues of material fact which would preclude this Court’s finding, summary judgment is appropriate.

The district court specifically found the judgment on State Farm’s summary judgment motion pertained only to Accident No. 1.

As to Progressive, the amended judgment granted its motion for summary judgment on Accident No. 1 and dismissed any UM claims Mr. Chanthasalo raised against Progressive with prejudice; however, it reserved Mr. Chanthasalo’s right to proceed against Progressive for UM benefits that arose out of Accident No. 2. |KThe district court found Ms. Deshotel was free of fault regarding Accident No. 2; accordingly, Progressive had no UM coverage exposure as to Accident No. 1.

This appeal followed.

DISCUSSION

Mr. Chanthasalo claims the district court committed legal error in granting the motions for summary judgment because it did not apply the proper standard to grant summary judgment relief and did not employ the proper duty-risk, analysis.

This Court discussed the standard of review for summary judgment in Ducote v. Boleware, 2015-0764, p. 6 (La. App. 4 Cir. 2/17/16), 216 So.3d 934, 939, writ denied, 2016-0636 (La. 5/20/16), 191 So.3d 1071, as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the-same criteria applied by* trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to-judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

In the instant case, State Farm’s and Progressive’s respective motions for summary judgment are premised on different facts and legal arguments, which necessitate separate de novo reviews. Accordingly, we shall first consider whether the district court properly granted State Farm’s motion for summary judgment.

| State Farm’s Motion for Summary Judgment

Established Louisiana jurisprudence employs a duty-risk analysis to resolve negligence claims under La. C.C. art. 2315. Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991). To prevail under a negligence claim, the plaintiff must prove five elements:

(1) the defendant had a duty to con- ' form his conduct to a specific standard (the duty element);
(2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element);
(3) the defendant’s substandard conduct was a eause-in-fact of the plaintiffs injuries (the cause-in-fact element);
(4) the defendant’s substandard conduct was a legal cause of the plaintiffs- injuries (the scope of liability or scope of protection element); and
(5) actual damages (the damages element)

Roberts, 605 So.2d at 1051.

Here, both parties agree that Mr. Chan-thasalo asserts a negligence action against Ms. Deshotel for Accident No. 1 when she rear-ended Mr. Chanthasalo’s vehicle. La. R.S. 32:81(A) provides “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and condition of the highway.” As such, elements one and two of the duty-risk analysis — the duty' element and the breach of duty element — are met.

The third element of the duty-risk analysis — cause-in-fact—is also met. Mr. Chanthasalo would not have been injured in Accident No. 2 “but for” Ms. 17Deshotel’s alleged negligence in causing Accident No. 1, which resulted in Mr. Chanthasalo standing on the shoulder of the interstate highway. Louisiana jurisprudence provides that if a plaintiff would not have sustained injuries “but for” the defendant’s substandard conduct, then such conduct is a cause-in-fact. Fowler v. Roberts, 556 So.2d 1, 5 (La. 1989). Therefore, to the extent that Ms. Deshotel’s actions had something to do with the damages Mr. Chanthasalo sustained in Accident No. 2, the test of a factual, causal relationship is met. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972).

We now turn to the fourth element of the duty-risk analysis — scope of protection. To answer whether or not Ms. Des-hotel’s alleged substandard conduct was a legal cause of Mr. Chanthasalo’s damages, we must analyze whether any breach of duty owed from Accident No. 1 .extends to place' Mr. Chanthasalo within the scope of protection for damages that resulted from Accident No. 2.

Legal cause or the scope of protection inquiry has been explained as follows:

The essence of the ... inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the [duty]. It is a hazard problem. Specifically,'it involves a determination of whether the ... duty ... [was] designed, at least in part, to afford protection to the class of claimants of which the plaintiff is a member from the hazard [encountered].

Peterson v. Doe, 1994-1013, p. 8 (La. App. 4 Cir. 12/15/94), 647 So.2d 1288, 1293 (citing Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 488, 137 So.2d 298, 304 (1962)). In short, the inquiry contemplates whether the injury the plaintiff suffered is one of the risks encompassed by the rule of law that imposed the duty. Fowler, 556 So.2d at 6. The finding of legal causation “requires a proximate relation between the actions of a defendant and the laharm Which occurs and such relation must be substantial in character.” Roberts, 605 So.2d at 1056 (quoting Sinitiere v. Lavergne, 391 So.2d 821, 825 (La. 1980)).

In determining whether there is a duty-risk relationship for a defendant’s substandard conduct and a plaintiffs harm, Louisiana jurisprudence employs an ease of association analysis to assess liability. The ease of association inquiry asks:

How easily does one associate the plaintiffs complained-of harm with the defendant’s conduct?” ... Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Crowe, [The Anatomy of a Tort-Greenian, as Interpreted by Crowe who has been Influenced by Malone—A Primer, 22 Loy. L. 903, 907(1976)]. Absent an ease of association between the duty breached and the damages sustained, we have found legal fault lacking. Hill, [ 256 So.2d at 622-23]; Sibley v. Gifford Hill and Co., Inc., 475 So.2d 315, 319 (La. 1985); See also Williams v. Southfield School, Inc., 4[9]4 So.2d 1339, 1342 (La. App. 2d Cir. 1986).

Roberts, 605 So.2d at 1045.

Mr. Chanthasalo principally relies on Minvielle v. Lewis, 610 So.2d 942 (La. App. 1 Cir. 1992) to support his contention that Ms. Deshotel’s alleged negligence from Accident No. 1 was the legal cause of the injuries he sustained in Accident No. 2. In Minvielle, the defendant driver drove across the median and struck the vehicle in which the plaintiff was a passenger. Upon stopping, the plaintiff exited the vehicle to walk to the front of the car to observe the property damage. After he walked back to the point of collision, he fell and injured his ankle when he stepped on a deteriorated portion of the roadway. The plaintiff filed suit against the other driver and the State. The defendant driver claimed that the plaintiffs injuries were caused when he stepped on the deteriorated roadway, not by the vehicular accident. Where there may be multiple causes for an injury, Minvielle provided:

|3To be actionable, the cause need not be the sole cause, but it must be a cause in fact, and to be a cause in fact it must have a proximate relation to the harm which occurs and it must be substantial in nature.” 610 So.2d at 944. In assessing some liability to the defendant driver, the First Circuit opined that the striking, of plaintiffs vehicle “was a proximate cause without which plaintiffs accident [falling- on the deteriorated roadway] would not have happened. Dixie Drive It Yourself Systems v. American Beverage Company, [242 La. 471] 137 So.2d 298 ([La.] 1992); Miller Car Washes, Inc. v. Crowe, 245 So.2d 485 (La. App. 2d Cir. 1971). In determining liability, the governing criteria is whether the person creating the. danger could or should reasonably have foreseen that the accident might occur.

610 So.2d at 945.

In assessing some liability to the defendant driver, the Minvielle Court opined that-the'striking of plaintiffs vehicle by the defendant driver “was a proximate cause without which plaintiffs accident [falling on the deteriorated roadway] would not have happened. Similarly, Mr. Chanthasalo contends that he was within the scope of protection of a duty owed to him by Ms. Deshotel because he would not have been in a hazardous location on the shoulder of the roadway had Ms. Deshotel not breached that duty. As such, he argues the district court improperly ’granted State Farm’s summary judgment motion.

In opposition, State Farm asserts the district court properly granted summary judgment and correctly decided that the scope of any duty Ms. Deshotel owed to Mr. Chanthasalo did not extend to the remote possibility that he might be struck by a vehicle as a result of a second, unrelated accident. State Farm relies in part on Hamilton v. City of Shreveport, 38,965 (La. App. 2 Cir. 10/27/04), 896 So.2d 76. In Hamilton, the Appellate Court found the district court properly granted summary judgment in favor of the vehicle drivers and against the surviving spouse. The surviving spouse’s husband was killed after he collided with a stationery police cruiser that was placed on the roadway to block traffic as a result of a |inmultiple car accident involving the vehicle drivers. The Court employed a scope of protection inquiry and determined that the risk of injury from a stationary police car at the accident scene, a situation produced by a combination of the vehicle drivers’ conduct and the act of a third party, was not within the scope of protection of the duty — to drive at reasonable speeds and not follow too closely — imposed on the vehicle drivers while operating their motor vehicles. Hamilton, 38,965, p. 6, 896 So.2d at 80. Summary judgment was, therefore, appropriate inasmuch as the plaintiffs failed to demonstrate an ease of association between the drivers’ conduct in causing the first accident and the risk of injury the decedent encountered when he collided with the stationery police cruiser in the second accident.

When we review the facts of the present case, we find no ease of association between Accident No. 1 and Accident No. 2. The facts are uncontested that two separate and distinct accidents occurred. The record shows a five to fifteen minutes lapse between the accidents. The parties agree that Ms. Deshotel, Mr. Chanthasalo and their respective vehicles were on the shoulder of the interstate at the time of Accident No. 2. Mr. Chanthasalo offers no evidence that Ms. Deshotel’s actions from Accident No. 1 caused or contributed to the occurrence of Accident No. 2. The duty Ms. Deshotel owed to Mr. Chanthasalo from the first accident — not to follow too closely and drive at a safe speed — -did not extend to cover him for the risk of injury from an unrelated second accident. We agree with Hamilton that the primary purpose of a motorist’s duty to drive at a safe speed and distance is to prevent the type of accident that initially occurred between Mr. Chanthasalo and Ms. Deshotel. 38,965,p. 6, 896 So.2d at 80. Accordingly, Ms. |nDeshotel’s alleged substandard conduct in causing Accident No. 1 cannot be the legal cause of Mr. Chanthasalo’s injuries from Accident No. 2. Mr. Chanthaslo fails to satisfy the fourth element of the duty-risk analysis — scope of protection — to support a negligence action against Ms. Deshotel. As there are no genuine issues of material fact at issue, based on our de novo review, the district court did not err in granting State Farm’s motion for summary judgment.

We now review whether the trial court erred in granting Progressive’s motion for summary judgment.

Progressive’s Motion for Summary Judgment

Mr. Chanthasalo makes no separate argument as to why the district court erred in granting Progressive’s summary judgment motion; instead, his appeal suggests that the district court erred for the same reason it did in granting State Farm’s motion for summary judgment— namely, Ms. Deshotel’s breach of duty in Accident No. 1 was the legal cause of his damages that resulted from Accident No. 2. Accordingly, as this Court has already determined that Ms. Deshotel was not the legal cause of Mr. Chanthasalo’s Accident No. 2 injuries, we need not review this assignment of error. Notwithstanding, considering the merits, Mr. Chanthasalo’s claim that Progressive’s potential UM exposure for Accident No. 1 derives from whether the duty Ms. Deshotel breached in Accident No. 1 was the legal cause of Accident No. 2 lacks merit. Our established jurisprudence provides that the issue of Progressive’s UM liability emanates from the insurance contract between Progressive and Mr. Chanthasalo. An insurance policy is a contract between the parties and its interpretation is construed by using the general rules of contract as set forth in our Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate 12Fire & Cas. Co., 1993-0911 (La. 1/14/94), 630 So.2d 759, 763. The parties’ intent as to the level of coverage provided is reflected by the words of the policy. Id.

Here, Mr. Chanthaslo’s UM insurance policy coverage with Progressive contains the following provisions:

[W]e will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
1. Sustained by an insured person;
2. Caused by an accident; and
3. Arising out of the ownership, maintenance, or use of an uninsured motor vehicle, (emphasis added).

Mr. Chanthasalo admits that he was not injured in Accident No. 1. Therefore, based on the clear and unambiguous terms of the insurance contract, which requires bodily injury, Mr. Chanthasalo is not entitled to UM benefits for Accident No. 1. Thus, as a matter of law, the district court did not err when it granted Progressive’s motion for summary judgment, finding Mr. Chanthasalo was not entitled to any UM recovery for Accident No. 1; however, reserving his right to UM benefits for Accident No. 2.

CONCLUSION

Based on the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

      . Ms, Deshotel and Ms. Schum were each insured by State Farm.

      . Mr:. Chanthasalo settled with Mr. Mitchell and USAA. They were dismissed from the lawsuit on July 25, 2015.

      . La. C.C. art. 2315(A) provides: "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . State Farm filed a Motion to Amend Judgment by Consent, which requested that the original judgment be amended to include the appropriate decretal language as to both sum-maty judgments and to clarify the relief granted.

      . The record indicates that on March 16, 2017, Mr. Chanthasalo executed a motion to dismiss Progressive after it had tendered its UM policy limits for Accident No. 2. The dismissal reserved Mr. Chanthasalo’s right to appeal the district court’s grant of summary judgment with reference Accident No. 1.

      . See also La. R.S. 32:58(A), which provides: ”[a]ny person operating a public vehicle, on the public roads of this state shall drive in a careful and prudent manner, so as not to endanger the life, limb, or property of any person, Failure to drive in such a manner shall constitute careless operation.”

      . The facts indicated that the drivers' accident happened at 1:30 a.m. Their vehicles were stopped and the decedent was legally intoxicated at the time he collided with the police cruiser near 3:10 a.m.

      . As previously referenced, the record shows that Progressive tendered its policy limits as to the second accident on February 21, 2017 and has been dismissed in relation to that accident.


text:
    Tarik AHMED v. DOWNMAN DEVELOPMENT, L.L.C., ABC Corporation, XYZ Insurance Company, and Scottsdale Indemnity Company
    NO. 2017-CA-0114
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 28, 2017

      Stephen I. Dwyer, J. Kendall Rathburn, Kailey L. Leboeuf, DWYER CAMBRE & SUFFERN, 3000 West Esplanade Avenue, Suite 200, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Alexander R. Saunders, PELLETERI & WIEDORN, L.L.C., 636 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,.-Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

h Plaintiffs, Tarik Ahmed and Miss US, Inc., appeal the trial court’s September 23, 2016 judgment granting summary judgment in favor of defendants, Roofing Contractors, Inc. of Louisiana and United Fire & Indemnity Company, and dismissing plaintiffs' claims with prejudice. In rendering its judgment, the trial court found that Mr. Ahmed is not a proper party plaintiff and the amended petition, adding Miss US, Inc. as a plaintiff, did not relate back to the filing of the original petition. Based on our review of the record and applicable law, we find no error in the trial court's judgment and we affirm.

FACTS AND PROCEDURAL HISTORY

In May 2007, Tarik Ahmed entered into a lease agreement with Qaquish, L.L.C, for a commercial space located at 2001 St. Bernard Avenue, where he opened and operated St. Bernard Beauty Supply Store (“the beauty store”). That same month, Miss US, Inc. was incorporated as a Louisiana corporation with Mr. Ahmed as its sole shareholder and President. In or around May 2010, Mr, Ahmed “d/b/a'Miss US, Inc.,” signed an amendment to the lease agreement with Qaqutéh, L.L.C., extending and amending the terms of the original lease. Then, in September 2011, Qaquish, L.L.C. transferred ownership of the property at 2001 St. Bernard Avenue to Downman Development, L.L.C. (“Down-man”), which became the successor in interest to the' commercial lease for the beauty store.

On July 5, 2012, Mr. Ahmed, individually, instituted this suit for damage,s against Downman, Roofing Contractors, Inc. of Louisiana (“RCI”) and United Fire <& Indemnity Company. According to the allegations in the petition, Downman | acontracted with ROI to repair and renovate the roof and ceiling above the beauty store. During the course of the repair work, at some time prior to November 15, 2011, RCI allegedly created large holes in the roof and ceiling above the beauty store but failed to seal the openings exposed by their work. Then, on or around November 15-16, 2011, heavy rain allegedly inundated the beauty store through the openings in the roof and ceding and caused severe water damage to the stock and inventory therein. Thereafter, Mr. Ahmed, individually, filed this suit to recover damages sustained to the stock and inventory as a result of the alleged negligent acts of defendants.

In September 2015, after receiving discovery from Mr. Ahmed, RCI and United Fire & Indemnity Company (hereinafter “defendants”) each filed a peremptory exception of no right of action seeking dismissal of all claims against them. Based on Mr. Ahmed’s responses to discovery requests, defendants argued that the damaged stock and inventory was actually owned by Miss US, Inc., and Mr. Ahmed had no right to recover damages for property he did not personally own. In response, on October 15, 2015, Mr. Ahmed filed a motion for leave to file a third supplemental and amending petition adding Miss US, Inc. as a plaintiff; he contemporaneously filed an opposition to the exception of no right of action, asserting that both he and Miss US, Inc. owned the damaged property and both are proper parties to the suit. After a hearing on the exception, the trial court rendered judgment granting Mr. Ahmed leave to amend the petition, denying defendants’ exceptions of no right of action “without prejudice, as premature,” and reserving to defendants the opportunity to re-urge the exception after additional discovery.

|3In July 2016, defendants each filed a motion for summary judgment seeking dismissal of all claims against them. Again, defendants argued that Mr. Ahmed was not the proper party to file suit to recover damages for property he did not own; in addition, defendants argued that the third supplemental and amending petition adding the proper party plaintiff, Miss US, Inc., could not relate back to the original petition filed by Mr. Ahmed and, thus, the claims asserted by the proper party were prescribed.

Plaintiffs filed an opposition to defendants’ motions for summary judgment on August 31, 2016, and the trial court set a hearing on the motions for September 16, 2016. Following the hearing, the trial court rendered judgment on September 23, 2016, granting defendants’ motions for summary judgment and dismissing plaintiffs’ claims with prejudice. On October 24, 2016, the trial court issued written reasons for judgment.

Plaintiffs’ timely appeal follows.

STANDARD OF REVIEW

Appellate courts review a trial court’s ruling granting a motion for summary judgment de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. FMB Development, L.L.C. v. Hibernia Nat’l Bank, 16-1057, p. 4 (La. 7/12/17), 224 So.3d 431, 434. Pursuant to La. C.C.P. art. 966(A)(3), a court shall grant a motion for summary judgment if, after an opportunity for adequate discovery, the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

The burden of proof on a motion for summary judgment is governed by La. C.C.P. art. 966(D)(1), which provides as follows:

l/The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defeiise, but rather to. point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

The determination of whether material facts exist in the case depends upon the applicable substantive law. Jones v. Stewart, 16-0329, p. 8 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389, citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

DISCUSSION

In this case, the trial court granted defendants’ motions for summary judgment on the basis of prescription. In its reasons for judgment, the trial court made the following findings: Mr. Ahmed is not the proper party plaintiff because he has no right to recover for the alleged damage to property he did not own; the proper party plaintiff, Miss US, Inc., was not added within the one year prescriptive period; and the third supplemental and amended petition did not relate back to the filing of the original petition. Thus, the trial court found that the claims asserted by the proper party plaintiff, Miss US, Inc., were prescribed and defendants were entitled to summary judgment.

In the first assignment of error, plaintiffs argue that the trial court erred in granting summary judgment by finding that Mr. Ahméd is not a proper party plaintiff because he did not personally own the damaged stock and inventory at the beauty store. Plaintiffs assert that Mr. Ahmed has a real and actual interest in this suit and he properly instituted this litigation to recover for damage to inventory and stock that he purchased for the beauty store. Moreover, plaintiffs assert that the |fievidence presented in opposition to defendants’ motions.for summary judgment is sufficient to establish that both Mr. Ahmed, personally, and Miss US, Inc. owned the damaged inventory and that both are proper party plaintiffs.

The threshold issue in this appeal is whether there is a genuine issue of material fact that Mr. Ahmed is a proper -party plaintiff in this case. In reviewing this issue, we begin with a discussion of the applicable law regarding proper party plaintiffs and right of action.

“Generally, an action can be brought only by a person having a real and actual interest which he asserts.” Rebel Distributors Corp., Inc. v. LUBA Workers’ Comp., 13-0749; p. 9 (La. 10/15/13), 144 So.3d 825, 832; La. C.C.P. art. 681. “When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit.” Howard v. Administrators of Tulane Educational Fund, 07-2224, p. 16 (La. 7/1/08), 986 So.2d 47, 59, citing Harry T. Lemmon & Frank L. Maraist, 1 Louisiana Civil Law Treatise, Civ il Procedure § 6.7, 121 (West 1999). The objection is urged through a peremptory exception of no right of action raised by the defendant or the court on its own motion, in either the trial or appellate court. Howard, supra; see La. C.C.P. art. 927, “The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” N. Clark, L.L.C. v. Chisesi, 16-0599, p. 5 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1016, quoting Hood v. Cotter, 08-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. In examining an exception of no right of action, the court assumes that the petition states a valid cause of action for some person but questions whether the plaintiff in the particular case is a member of the class'that has a legal interest in 6the subject matter of the litigation. J-W Power Co. v. State ex rel. Department of Revenue & Taxation, 10-1598, p. 7 (La. 3/15/11), 59 So.3d 1234, 1239. The court begins with an examination of the pleadings. Gisclair v. Louisiana Tax Comm’n, 10-0563, p. 2 (La. 9/24/10), 44 So.3d 272, 274. If the pleadings state a right of action in the plaintiff, then, at the trial of the exception, the parties may introduce evidence to support or controvert the exception. Howard, 07-2224, p. 17, 986 So.2d at 59.

Beginning with an examination of the pleadings, the original petition names Mr. Ahmed as the sole plaintiff and alleges that he sustained property damage to his inventory when .the space that he leased was inundated with water through the holes in the roof and ceiling. We note that the petition avers damage to “Petitioner’s inventory and other property”‘and “Petitioner’s business,” but the petition does not aver specifically that Mr. Ahmed owned and operated a business in the leased space. The original petition, nor the first and second amended petitions,- does not name or reference Miss US, Inc. The third amended and supplemental petition — filed more than three years after the original petition and after.-being granted the opportunity to amend in response to the exception of no right of action — simply added Miss US, Inc. as a plaintiff and alleged that Miss US, Inc., “along with the original Petitioner, Mr. Ahmed, sustained the damages • that were caused by the named Defendants.” The third amended petition does not,allege any further facts, such as the relationship between the plaintiffs or the ownership interest of either party in the damaged property,

■ In their motion for summary judgment, defendants argued that Mr. Ahmed has no right of action to assert the claims in the original petition because, as 17revealed by plaintiffs’ discovery responses, Mr. Ahmed did not own the beauty store stock and inventory for which he personally sued to recover damages. According to defendants, the documentation and deposition testimony obtained during discovery revealed that Miss US, Inc., the corporation of which Mr. Ahmed was the sole shareholder, owned the stock' and inventory at issue in this suit.

The significance of the actual ownership of the damaged property, as noted by defendants, is that shareholders cannot sue in their own name to recover damages to corporate property. Under Louisiana law, “[shareholders do not have a personal right to sue to recover for acts committed against, or causing damage to the corporation.” St. Bernard Optical Corp. v. Schoenberger, 05-0548, p. 6 (La. App. 4 Cir. 1/25/06), 925 So.2d 604, 608; see Joe Conte Toyota, Inc. v. Toyota Motor Sales, U.S.A. Inc., 95-1630, p. 7 (La. App. 4 Cir. 2/12/97), 689 So.2d 650, 654. “To the extent that a shareholder has a potential personal right to action, the jurisprudence requires a showing, of injury that is “unique” or “special” to that shareholder." LeBlanc v. Alfred, 15-0397, p. 9 (La. App. 1st Cir. 12/17/15), 185 So.3d 768, 774; see St. Bernard Optical, supra. If the shareholder can show a right to recover without proof of corporate loss or injury, then the shareholder has a direct personal right of action separate from the corporation. Id.; see Morris & Holmes, 8 La. Civ. Law Treatise-Business Organizations 34.03 (1999). However, “[a] person who conducts business in corporate form and reaps the benefits of incorporation cannot sue individually for damages incurred by the corporation.” Hinchman v. Oubre, 445 So.2d 1313, 1317 (La. App. 5th Cir. 1984). Therefore, we must determine whether there is any genuine issue of material fact regarding the ownership of the beauty store inventory and property at issue in this suit. If, as defendants argue, Mr. Ahmed cannot establish his own right, to recover without Isproof of a loss to Miss US, Inc., then he cannot assert a personal right of action for property owned by Miss US, Inc.

In support of the motion for summary judgment, defendants relied on plaintiffs’ answers to interrogatories, insurance claim and appraisal documents provided by plaintiffs, and deposition testimony from Miss US, Inc.’s accountant and from Mr. Ahmed, as the corporate representative for Miss US, Inc. Defendants argue that the documentation and deposition testimony clearly establishes that Miss US, Inc. owned the beauty store stock and inventory at the time of the alleged damage.

The record reflects that plaintiffs provided documentation, in response to discovery, identifying Miss US,- Inc. as the insured owner of the inventory at the beauty store. The insurance claim letter, provided by plaintiffs, identifies- Miss US, Inc. as the insured, under a commercial general liability policy issued by Scottsdale Insurance Company in September 2011, and disclaims property damage coverage for the water damage to the -inventory and property at the beauty store. Also, in response to interrogatories regarding the estimated value of the damages, plaintiffs provided an appraisal of the damaged inventory that was issued by The Appraisal Group to Miss US, Inc.

In further' support, defendants rely on the deposition testimony of David Sewell, the accountant for Miss US, Inc., and of Mr. Ahmed, in his capacity .as the corporate representative for Miss US, Inc. Mr. Sewell testified that he prepared the 2011 tax returns for Miss US, Inc., which covers the timé period of the alleged water damage. In preparing the tax returns for Miss US, Inc., Mr. Sewell testified that he was not provided with any invoices, purchase orders, receipts, or other | ¡financial statements -showing that the inventory at the beauty store was purchased or paid for by any other person or entity other than Miss US, Inc. Based on the documentation provided to him, Mr. Sewell was not aware of any property at the beauty store that was owned by any other person or entity at the time of the water damage. In addition, Mr. Sewell confirmed that, for purposes of corporate accounting, any funds put into a corporation by a shareholder for business purposes becomes corporate funds and any inventory purchased using such funds belongs to the corporate entity.

As the corporate representative for Miss US, Inc., Mr. Ahmed testified that there was one business bank account for Miss US, Inc. at Chase Bank, which he put money into to get his business started in 2007. Although Mr. Ahmed makes a general statement that he, personally, paid for inventory for the store at times, his testimony reflects that he did not separate himself from Miss US, Inc.

Q: [,.. ] And you said there were times when you had to buy some inventory yourself?
A: Yes.
Q: Were there special circumstances that would arise that it would require that?
A: Sometime. Like when I opened the store, when we have — when we opened the store, when I start MISS, US, INC., so I have to build, I have to put money to open. Fixtures, merchandise. So, the store start running, MISS, US, INC., start taking care of itself.
Q: Was that a loan from you to the business?
A: It’s my business, so it’s just one to me. To me, MISS US, INC. or me, same thing. So I put money when the business need it and I take money when I need it from the business.
Q: And, so, the inventory that was at the St. Bernard Beauty Supply store, was that MISS US, INC. inventory?
A: You can say it’s MISS US, INC. and me, because we both one.
A: So, whatever merchandise MISS US, INC. buy, personally, to me, it’s the same like I’m buying it, because it’s the same thing..
Q: What you’re telling me is, if MISS US, INC. owns it, you do too, because you are the owner of MISS US, INC.?
A: Yes, I’m the sole share [sic], so I don’t have a partner.
Q: I’m going to hand you the 2011 tax return for MISS US, INC. [...] [M]y question is, online two where it says Purchases, are those purchases made by MISS US, INC. for inventory (indicating)?
A: MISS US, INC., yes, MISS US, INC.
Q: And you file your own separate personal tax returns, correct?
A: Yes.
Q: So, if you had purchased $231,000 worth of inventory, you would claim that on your personal taxes, not on MISS US, INC., correct?
A: Yes, yes.
Q: Was the money that you deposited into the MISS US, INC. accounts reflected anywhere on the financial documents for MISS US, INC.?
A: No.

Mr. Ahmed further stated, “when you own by yourself in business, you treat the business like it’s yours. [..■.] Like you and the business is the same. [... ] I never separate them.”

Plaintiffs argue that Mr. Ahmed’s testimony confirms his personal right to recover for the damaged inventory, because he stated that he purchased inventory with his own money. However, Mr. Ahmed’s testimony belies that argument, because he acknowledged that he did not separate himself from Miss US, Inc. nor document any purchases made from his own personal funds.

Both parties assert that their position on Mr. Ahmed’s right of action is supported by the case of Hinchman v. Oubre, supra. In that case, HECMAC, a corporation, and Hinchman, .its sole shareholder, filed suit against several defendants alleging abuse of process and conspiracy to defraud through use of the procedure for seizure and sale of a judgment debtor’s movable property. After service was made on all parties, defendants filed exceptions of no right and/or cause of action, arguing that Hinchman had no personal right of action because any damages inflicted were suffered solely by the corporation. The trial court granted Inthe exception of no right of action as to Hinchman and dismissed the claims asserted by him, individually. On appeal, this Court highlighted the distinction between corporate property and property owned by Hinchman individually. Because the debts and obligations due to a corporation are not due to the individual shareholders, Hinchman could not recover for losses to the business that he suffered as a shareholder; but Hinchman “has a right to recover those losses as to any personal property he had on the premises, if he is able to prove any of the seized property belonged to him individually rather than to the corporation.” Hinchman, 445 So.2d at 1317. But upon review of the allegations in the petition, the Court found that “Hinehman’s claims as to damages to which he is entitled personally amount to no more than an assertion of conclusions.” Id. The Court then remanded the matter to allow Hinchman, individually, to amend his petition to state facts supporting his individual right and cause of action.

Although plaintiffs cite Hinchman in support of their argument that they should be allowed to prove Mr. Ahmed has a personal right of action, we find that under the facts of the instant case, the holding in Hinchman supports defendants argument that Mr. Ahmed cannot establish his personal right of action. Whereas in Hinch-man, the Court noted that Hinchman had a right to recover losses of personal property that was wrongfully seized, in this case, Mr. Ahmed never asserted any claims of personal property .loss. Here, plaintiffs only claim losses of business property. While plaintiffs argue that Mr. Ahmed has a right to recover for inventory that he purchased for the beauty store, based on his own testimony, the | ^claims Mr. Ahmed individually asserts cannot be separated from the business losses suffered by Miss US, Inc. See St. Bernard Optical Corp. v. Schoenberger, 05-0548 (La. App. 4 Cir. 1/25/06), 925 So.2d 604 (holding that individual shareholders have no right of action where their recovery for claims depends on the corporate injury); Glod v. Baker, 02-988 (La. App. 3 Cir. 8/6/03), 851 So.2d 1255 (finding third-party plaintiffs.failed to establish personal losses separate from corporate injury sufficient to survive motion for summary judgment on no right of action).

Based on our review of the record in light of the applicable law, we find no error in the trial court’s finding that Mr. Ahmed has no personal right of action and, thus, was not the proper party to file this suit.

In their second assignment of error, plaintiffs argue that the trial court erred in finding that the third supplemental, and amended petition adding Miss US, Inc. did not relate back to the filing of the original petition and plaintiffs’ claims were prescribed; Plaintiffs argue that the claims asserted in the amended petition meet the criteria for relation back to the timely filed original petition set forth in La. C.C.P. art. 1153 and by the Louisiana Supreme Court in Giroir v. South Louisiana Medical Cen ter, Division of Hospitals, 475 So.2d 1040 (La. 1985).

La. C.C.P. art. 1153 provides a mechanism by which the actionor defense asserted in an amended petition can relate back to the date of filing of the original pleading, thereby avoiding dismissal by prescription. As applied by the Louisiana Supreme Court in Giroir, La. C.C.P. art, 1153 allows for an amendment adding a plaintiff to relate back when (1) the amended claim arises out of the conduct, transaction, or occurrence set forth in.the original pleading, (2) the defendant knew or should have known of the existence and involvement of the new plaintiff, (3) the 1 ianew- plaintiff is not wholly new or unrelated to the old plaintiff, as that would amount, to the assertion .of a new claims that would otherwise be prescribed, and (4) the defendant will not be prejudiced in preparing and conducting his defense. Gir-oir, 475 So.2d at 1041.

Under the facts of this case, we do not find that the third amended petition adding Miss US, Inc. meets the requirements set forth in Giroir. From our review of the record, we note initially that the original petition does not provide any indication that any other person or entity other than Mr. Ahmed had claims against defendants. See Brown v. City of New Orleans, 580 So.2d 1093 (La. App. 4th Cir. 1991) (holding that an untimely filed amended petition adding a plaintiff and claims for property damage did not relate back to the original petition and was prescribed where there was no evidence that defendant knew or should have known of involvement or connection of new plaintiff to original plaintiff). Furthermore, despite Mr. Ahmed’s stated belief or understanding, a corporate entity, even if wholly-owned by a sole shareholder, is a separate legal person and cannot be treated as one in the same as its sole shareholder. Thus, the addition . of Miss US, Inc. adds a wholly new plaintiff more than three years after the original petition was filed by a party who had no right of action to file suit. In consideration that the 'original plaintiff, Mr. Ahmed, had no right to assert the damage claims against defendants, we find that the addition of Miss US, Inc. and its claim constitutes an untimely cause of action. See Boone v. Conoco Phillips Co., 13-1196 (La. App. 3 Cir. 5/7/14), 139 So.3d 1047 (“An ‘untimely filed original petition does not support the relation-back of a- new cause of action[.]’ Nor does an original petition filed by a party without a right of action to file it.”) (citations omitted). Accordingly, we find no error in the trial court’s judgment | ^finding plaintiffs’ claims prescribed and granting defendants’ motion for summary judgment.

CONCLUSION

.Based on our review of the.record in light of the applicable law and jurisprudence, we find no error in the trial court’s September 23, 2016 judgment granting defendants’ motions for summary judgment and dismissing plaintiffs’ claims.

AFFIRMED

      . Four defendants were named in the original petition: Downman, Scottsdale Indemnity Company, "ABC Contractor,”-and "XYZ Insurer,” Downman and Scottsdale are not parties to this appeal and the record, does not reflect whether any claims remain pending against either, In the first and second supplemental petitions, RCI and United Fire & Indemnity Company were identified as the previously unknown contractor and its general commercial liability insurer, respectively, and named as the only defendants. While the record does not reflect the withdrawal or dismissal of claims against Downman and Scottsdale, neither is named as a defendant in the first, second, and third amended and supplemental petitions.

      . Mr. Ahmed filed the first amended and supplemental petition on September 7, 2012, and the second amended and supplemental petition on November 15, 2012.

      , Attached to each petition was the original lease agreement naming Mr, Ahmed as the tenant and the amendment to the commercial lease agreement which Mr. Ahmed signed above a- signature block styled "Tarik O. Ahmed d/b/a Miss US Inc,”

      . The record reflects that the parties agreed not to attach the tax records as exhibits but that plaintiffs would not object to the exhibits not being authenticated via sworn testimony for purposes of the depositions.

      . We note that the trial court already provided Mr. Ahmed the opportunity to amend the petition to add the claims of Miss US, Inc., and to allege facts supporting the right of action of each plaintiff. In addition, the parties were allowed additional .tíme for discovery, during which plaintiffs had the opportunity to present evidence supporting Mr. Ahmed’s personal losses.


author: PICKETT, Judge.

text:
    Sarah BARBER, et al. v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY GROUP SELF-INSURED FUND, et al.
    17-64 consolidated with 17-498
    Court of Appeal of Louisiana, Third Circuit.
    Opinions rendered 12/28/2017

      Douglas K. Williams, Christopher A. Mason, Breazeale, Saeshe & Wilson, L.L.P., P. 0. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT-APPLICANT-AP-PELLEE: Republic Fire <& Casualty Ins.' Co.
    Randall B. Keiser, Jeremy C. Cedars, Keiser Law Firm, P.L.C., P. O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR DEFENDANT-RESPONDENT: Estate of Larry Jeane, Sr.
    Derrick G. Earles, David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, P. 0. Box 80098, Lafayette, LA 70598, (337) 261-2617, COUNSEL FOR PLAINTIFFS-RESPONDENTS: Sarah Barber, Elizabeth Spivey, Sarah Barber, o/b/o Ab-bigail Turner, Racheal Spivey, Jamie Turner, Wallace Spivey, Jamie Turner, o/b/o Abbigail Turner, Dana Spivey
    Court composed of Elizabeth A. Pickett; D. Kent Savoie, arid Van H. Kyzar, Judges.
   PICKETT, Judge.

liFpr the reasons assigned in Barber v. Louisiana Municipal Risk Management Agency Group Self-Insurance Fund, 17-498 (La.App. 3 Cir. 12/28/17), 236 So.3d 689, 2017 WL 7513867, the application for supervisory writs is granted and made peremptory, and the case is remanded to the trial court for further proceedings.