Cole v. Loyd

617 So. 2d 605 | La. Ct. App. | 1993

YELVERTON, Judge.

For the reasons given in Cagle v. Succession of Loyd, 617 So.2d 592 (La.App. 3d Cir.1993), handed down this date, the judgment in favor of James Lehane Cole, Alice Phillips Cole, James Lehane Cole, Jr., John Bailey Cole, Tina Cole and the James L. Cole and Sons Partnership, and against defendant, the Succession of Jess Loyd, Jr., in the amount of $1,069,582, is amended to read $762,000.

The judgment is further amended and recast as follows:

Judgment is rendered in favor of plaintiffs, James Lehane Cole, Alice Phillips Cole, James Lehane Cole, Jr., and James L. Cole and Sons Partnership, and against the defendant, the Succession of Jess Loyd, Jr., in the amount of $185,230.09, together with legal interest thereon from date of judicial demand until paid, and costs below and on appeal.

The exception of no right of action filed by the appellant, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, to the claims of plaintiffs, John Bailey Cole and Tina Cole, husband and wife, and James L. Cole, Jr., as to $512,769.91, which is the portion of the judgment in their favor, is maintained, and the claim as to these plaintiffs is remanded to the district court with instructions to the district court to order an amendment within a delay to be fixed by the court, for the substitution of the trustee in bankruptcy as the proper party plaintiff. The district court is further instructed that if there is a failure to comply with the order to substitute, within the time allowed, the district court is to dismiss the action insofar as it represents the claims of these three plaintiffs.

The Cole case in its entirety is remanded for the further purpose of a limited hearing for the taking of additional evidence regarding the date of the filing of the Cole suit. The district court is instructed to conduct a limited hearing for this purpose. If it turns out that the filing date was 1988, the plea of prescription will continue to be overruled. If it turns out that the first Cole suit was filed on July 1, 1991, the trial court is instructed to maintain the plea of prescription, fix court costs, and dismiss the Cole suit.

JUDGMENT AMENDED AND AFFIRMED; EXCEPTION OF NO RIGHT OF ACTION MAINTAINED; REMANDED WITH INSTRUCTIONS.