630 So. 2d 1314 | La. Ct. App. | 1993
Lead Opinion
This case involves enforcement of a judgment against a sheriffs department for tor-tious acts occurring during a former sheriffs administration. Evangeline Parish Sheriffs Deputy, Kathy Riley, was injured when she tripped and fell on a water hose extended across the sidewalk by a trustee assigned to wash cars. Routinely, Evangeline Parish Sheriffs permitted prisoners to wash cars on the courthouse parking lot. Kathy Riley was familiar with this practice. Earlier on the date of the accident, her vehicle was washed by a trustee.
Kathy Riley filed a personal injury action against the Evangeline Parish Police Jury, the Evangeline Parish Sheriffs Department, and their respective insurers, if existent, and named as “ABC and DEF” Insurance Companies. At the time of the alleged accident and filing of suit, Floyd Soileau was the Sheriff of the Parish of Evangeline.
Although Mrs. Riley’s accident would fall ordinarily within the purview of the Worker’s Compensation Act, injuries sustained by sheriffs deputies during the course and scope of their employment are statutorily exempted from coverage under the Act. A sheriffs officer who sustains work related
EXCEPTION OF NO CAUSE OF ACTION
Preliminarily, we turn to address appel-lee’s exception of no cause of action originally filed at the trial level. The trial court neither heard nor ruled on the exception. Ap-pellee refiled and now seeks to reurge the exception before this court in accordance with Louisiana Code of Civil Procedure article 927 which permits filing of a no cause exception at any time prior to the judgment’s finality. Essentially, the exception as lodged attacks Mrs. Riley’s right to proceed against the Evangeline Parish Sheriff Department as a legal entity. The main thrust of the exception focuses on the status of Sheriffs Departments generally and their juridical existence. We will discuss the underlying question raised by the exception in due course.
However, an exception of no cause of action tests the sufficiency in law of the petition. Darville v. Texaco, Inc., 447 So.2d 473 (La.1984). The exception aims at forcing early dismissal of an action where the law affords “no remedy to anyone for the particular grievance alleged.” Meche v. Arceneaux, 460 So.2d 89 (La.App. 3rd Cir.1984). The exception must be decided by considering the facts alleged in the petition only. Procedurally, the mover is barred from contesting the truthfulness or correctness of the facts pled in the petition which must be conceded. Smith v. Cole, 541 So.2d 307 (La.App. 5th Cir.1989). No evidence is admissible to support or defeat the exception. In deciding the merits of the exception on appeal, we are restrained from considering any defenses alleged at trial or pleadings filed by appellee below. LSA-C.C.P. 931: Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967). Strictly viewed, the four corners of the petition are the limited boundary of our factual inquiry. A mover may not use the exception on appeal to abort full appellate review of the case simply because the record contains valid defenses to the claims. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979). Furthermore, the exception may not be invoked to determine whether a particular defendant can stand ultimately in judgment in a case. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). Any such defenses must go to the merits only following examination of the full record on appeal. Gustin v. Shows, supra.
We note Riley’s petition alleged the Evangeline Parish Sheriffs Department is a political subdivision of the State of Louisiana capable of suing and being sued. It further alleged the existence of an employer-employee relationship between the Sheriffs Department and the Trustee; that the Trustee was negligent; and that the Trustee’s tortious acts were committed during the course of his relationship with the Sheriffs Department. Accepting these pled facts as true, Riley stated a recognized cause of action in Louisiana tort law. Appellee’s exception of no cause of action must fail. Accordingly, we are required to complete our review of the ease.
ISSUE
As noted, the primary issue is whether tort liability occurring during a former sheriffs term is recoverable against the sheriffs department, as a legal entity; and thereby enforceable against existing funds under the control of a successor sheriff. The parties also assign as error the trial court’s apportionment of fault and damages. For the following reasons, we reverse in part and affirm in part.
LAW AND ANALYSIS
Appellee insists the law and jurisprudence do not mandate enforcement of a former administration’s vicarious obligations against a successor sheriff or his department. We disagree.
BACKGROUND — JURISPRUDENCE AND LEGISLATION
The federal court, interpreting Louisiana’s jurisprudence, in Slack v. Bishop, 444
The 1974 Louisiana Constitution in Article XII, Section 10(A) abolished governmental immunity forcing courts to revisit the issue of a sheriffs vicarious responsibility for the acts of deputies and trustees. In Liberty Mutual Insurance Company v. Grant Parish Sheriff’s Dept. 350 So.2d 236 (La.App. 3rd Cir.1977), writ denied, 352 So.2d 235 (La.1977), we held sheriff departments were not legal entities “capable of suing and being sued.” Only the sheriff, individually, was liable for the negligence of his deputies committed under his direct orders or in the performance of their official duties. We concluded a successor sheriff was not liable for the delictual acts of his predecessor. Interestingly, however, we noted in passing that LSA-R.S. 33:1450.1 allows sheriffs to contract for insurance to cover losses or damages occasioned from negligent acts committed by them or their deputies. This undoubtedly was an attempt by us to ultimately find a legal entity to assign responsibility for the sheriffs vicarious liability, i.e. an insurance company, thus avoiding obvious conflict with the Constitution’s immunity prohibition.
Next, the Louisiana Supreme Court in Foster v. Hampton, 381 So.2d 789 (La.1980), applied the “official duty standard;” but held the State vicariously liable for the deputy’s tort. See also Foster v. Hampton, 352 So.2d 197 (La.1977). The legislature quickly responded by amending LSA-R.S. 33:1433 deleting the language relied upon by the Foster Court regarding the sheriffs general immunity from liability for vicarious acts. Further, the legislature enacted LSA-R.S. 42:1441 specifically prohibiting suits against
Nonetheless, several appellate courts joined by the Supreme Court continued to apply the Foster decision recognizing the State as a deputy’s employer. See Foster v. Hampton, 381 So.2d 789 (1980), on review before the Supreme Court after enactment of LSA-R.S. 42:1441, followed by Michaelman v. Amiss, 385 So.2d 404 (La.App. 4th Cir. 1980) and Carmouche v. Oubre, 394 So.2d 805 (La.App. 4th Cir.1981). However, in Martinez v. Reynolds, 398 So.2d 156 (La.App. 3rd Cir.1981), we interpreted the enactment of LSA-R.S. 42:1441 as legislatively overruling Foster. Accordingly, we found Section 1441 destroyed any cause of action against the State. Furthermore, upholding Section 1441, as not violating Article XII, Section 10(A) of the 1974 Louisiana Constitution, we reasoned the legislature provided plaintiffs with an adequate remedy by removing any limitation on the liability of sheriffs and thereby inferentially expressing an intent to treat sheriffs’ departments as legal entities responsible for vicarious fault.
Promptly reconsidering this issue, the Supreme Court adopted the more functional approach, first employed by us in Martinez, in assigning vicarious tort liability to sheriffs in Jenkins v. Jefferson Parish Sheriff’s Office, 402 So.2d 669 (La.1981). Jenkins effectively overruled a long line of cases holding that sheriffs departments were not juridical entities capable of being sued. The Court reasoned:
The reality of the situation is that there does exist an employment relationship between a sheriff and his deputies. The sheriff, and not the state, hires and fires deputies, exercises direct and indirect supervision and control over them, fixes their time and place of work, and generally allocates their responsibility and assigns their duties. Although the money for the operation of the various sheriffs’ departments may come from various sources of public funds (primarily fees as tax collector and in civil and criminal matters), the sheriffs disburse the allocated funds and actually pay most of the salaries of the deputies with these funds. No one but the sheriff can realistically be viewed as the employer of the deputies. Whether the sheriff is the appropriate governmental entity on which to impose liability for the employment-related torts of the deputy sheriff is a more difficult question.
The doctrine of respondeat superior is based on the rationale that the enterprise should pay for damages caused by one who is acting in furtherance of the enterprise. Here, there is no enterprise. The deputy on duty is acting in furtherance of the public good, and the damages caused by those actions of the deputy should be paid by public funds.
The Legislature, in enacting Act 318 of 1978, has clearly indicated its intention that governmental responsibility for torts committed by a public employee should be placed on the public officer most closely related to the tortfeasor. The Legislature also removed the previous statutory immunity enjoyed by the sheriff. Moreover, as noted in the discussion of the employment relationship, neither the state nor the parish (the other logical entities on which liability might be imposed) exercises any significant control over sheriffs deputies. We conclude that the sheriff is the appropriate governmental entity on which to place responsibility for the torts of a deputy sheriff
* * * * * ⅜
How the obligation may be enforced is one of the practical problems not solved by this decision. In this case, for example, any judgment against this sheriff in his official capacity will have to be recovered (disregarding the probability of liability insurance) from the official funds of his successor sheriff, since Cronvieh is no longer in office. Future incidents can be provided for by liability insurance. [Emphasis added]
By identifying the sheriff as the “appropriate governmental entity on which to place liability,” the Supreme Court has resolved the issue now before us.
The jurisprudence has consistently followed Jenkins in assigning a sheriff with vicarious liability for the negligence of their deputies. Cooley v. State, 533 So.2d 124 (La.App. 4th Cir.1988); Nall v. Parish of Iberville, 542 So.2d 145 (La.App. 1st Cir.1989). We adopted the Jenkins holding in Sullivan v. Quick, 406 So.2d 284 (La.App. 3rd Cir.1981). The legislature also responded by enacting a comprehensive plan allowing sheriffs to pool their funds to provide “Group Self-Insurance,” presumably at lower cost, to cover their expanded “liability” as recognized in Jenkins in an obvious attempt to reduce the financial impact on the sheriffs funds. See also, LSA-R.S. 33:1450.1.
We are not persuaded in this case to reach a different result by ignoring the sensible approach employed in Jenkins, followed by us in Martinez and Sullivan, as suggested by appellee. Such divergence would reintroduce confusion and inconsistency in our case law. The 1974 Constitution and subsequent legislation prevents us from jurisprudentially immunizing sheriffs and the public funds under their control from liability for the wrongful acts occasioned by their operations.
Therefore, we find the trial judge acted without legislative or jurisprudential authority in barring enforcement of the judgment against the Evangeline Parish Sheriffs Department and the funds under the direct control of Sheriff Morein. We amend the judgment to permit its enforcement against the Evangeline Parish Sheriffs Department, as a legal entity, and against the funds under the control of the present sheriff.
APPORTIONMENT OF FAULT
Both parties assert the trial court erred in assigning their respective comparative faults. Mrs. Riley contends her percentage of fault should be reduced; while defendant urges it should be increased. When damages are insusceptible of precise measurement, much discretion is left to the trial court to make reasonable awards. LSA-C.C. art. 1999. Absent an initial determination that the trial court’s great discretion has been abused under the facts of this case, we cannot disturb the trier’s award. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Mitchell v. State, through DOTD, 596 So.2d 353 (La.App. 3rd Cir.1992), writ denied, 600 So.2d 680 (La.1992). We find the trial court did not manifestly err in apportioning fifty percent (50%) of the fault to each party. Plaintiff was an employee of the Sheriffs Department. As noted by the trial judge, she knew or should have known that hoses were often stretched across the sidewalk. Her. ear was washed on the day of the accident. The trial judge did not manifestly err in concluding Mrs. Riley could have exercised greater care in guarding against an obvious and known danger.
The defendant’s practice of allowing trustees to wash cars on the courthouse parking lot by extending water hoses across the sidewalk created an unreasonable risk of injury. It was certainly foreseeable that a person using the sidewalk might slip and fall on the water hose. Defendant could have easily avoided the harm posed in this case by posting signs, roping the area, or moving the car washing activities to another area.
DAMAGES
Plaintiff complains the trial court’s award of damages is inadequate under the circumstances. The judge awarded plaintiff $10,-000.00 for physical and mental pain and suffering, $5,000.00 for lost wages, and $2,052.33 for medical expenses. Plaintiff cites a number of cases in which greater damages were awarded.
It is well settled that the factors which should be considered in assessing damages include the severity of pain and suffering and permanency of the disability resulting from the accident. General damages must be based upon competent medical evidence. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
The trial court noted plaintiff suffered from two (2) pre-existing back conditions, as well as a pre-existing mental condition. Also, the trial court relied heavily on the testimony of Dr. Douglas McKay, an ortho
Dr. McKay testified the back pain suffered by plaintiff was “mechanical in origin” and plaintiff had a normal neurological examination with no disc or sciatica problems or muscle spasms in the back. From his examination of plaintiff and evaluation of diagnostic testing (including x-rays, MRI and C-Scan results), Dr. McKay concluded plaintiff did not sustain any residual disability or permanent aggravation of her pre-existing back condition. He testified that the pain and discomfort experienced by her, reasonably connected to the fall, should have subsided within one year. Based upon this testimony the trial court rendered its award for physical and mental pain and suffering. After reviewing the record, we find no clear error on the part of the trial court in quantifying the injuries. Also, the trial judge’s assessment of special damages for loss of wages was not clearly wrong or abusive in light of his conclusion that the medical facts did not support a finding of “permanent” impairment or the existence of prolonged aggravation of her pre-existing disabilities which would hinder or prevent her from performing work the same as or similar to her pre-injury job.
DECREE
For the foregoing reasons, we reverse that portion of the trial court’s judgment which barred plaintiff from executing her judgment against the Evangeline Parish Sheriffs Department and the funds under the direction and control of Wayne Morein. In all other respects, the judgment is affirmed. The costs of this appeal are assessed against defendant-appellee.
REVERSED IN PART, AFFIRMED IN PART.
STOKER, J., dissents and assigns reasons.
CULPEPPER, J. Pro Tem., dissents for the reasons assigned by STOKER, J.
Rehearing
ON REHEARING
This case was heard by a five-judge panel and our opinion was handed down on June 2, 1993, from which there were two dissents. Thereafter, we granted a rehearing. After further consideration and again hearing oral arguments, a majority of the panel is now of the opinion that the “Evangeline Parish Sheriffs Department” is not a legal entity which may be sued and stand in judgment. We so hold for the reasons set forth in our opinion in Liberty Mut. Ins. Co. v. Grant Parish, Etc., 350 So.2d 236 (La.App. 3d Cir.), writ refused, 352 So.2d 235 (1977). We reiterated our position in Gamer v. Avoyelles Parish Sheriffs Dept, 511 So.2d 8 (La.App. 3d Cir.1987). The Court of Appeal for the Fourth Circuit followed our view in Jenkins v. Jefferson Parish Sheriff’s Office, 385 So.2d 578 (La.App. 4th Cir.1980), reversed as to other issues, 402 So.2d 669 (La.1981). Because the “Evangeline Parish Sheriffs Department” is not a legal entity, the plaintiffs petition failed to set forth a cause of action against that particular defendant.
FACTS AND PROCEDURAL HISTORY
The majority opinion on original hearing set forth the essential facts and the procedural history of this ease. Therefore, we need only set forth a brief summary here.
This is a suit for personal injury damages sustained by plaintiff caused by the alleged negligence of a person “under the supervision of the Evangeline Parish Police Jury and the Evangeline Parish Sheriffs Department.” Plaintiff dismissed her suit against the Police Jury prior to trial. Plaintiff did not name as a defendant Floyd Soileau, the Sheriff of Evangeline Parish at the time of the incident which plaintiff alleges caused her personal injuries. Although plaintiff named
Prior to trial a peremptory exception of no cause of action was filed on behalf of Evangeline Parish Sheriffs Department. Nevertheless, the case went to trial, and after trial, the trial judge gave judgment in favor of plaintiff reduced by 50% on a finding that plaintiff was herself 50% at fault. However, the ruling of the trial court and its judgment provided “that this Judgment may not be executed either against FLOYD SOILEAU, personally, or against the funds of the EVANGELINE PARISH SHERIFF’S DEPARTMENT under the direction and control of Wayne Morein.”
At the time of trial Wayne Morein had succeeded Floyd Soileau as Sheriff of Evangeline Parish.
The judgment of the trial court was appealed to this court. Before this court counsel for the defendant reurges its peremptory exception of failure to state a cause of action.
OPINION
In our opinion the exception of no cause of action should have been granted by the trial court. For the reason that we find that the sole defendant in this ease, the Evangeline Parish Sheriffs Department, has no legal status, we hold that plaintiff has failed to state a cause of action. LSA-C.C.P. art. 2163.
In all of the arguments addressed to this court the plaintiff has never pointed to any constitutional or statutory provision conferring legal status to sue or be sued on sheriffs departments. Without such, we fail to see how such a functional and organizational agency as a sheriffs department or office can have legal status. The jurisprudence from this court and the fourth circuit are decidedly against such a notion. Liberty Mut. Ins. Co. v. Grant Parish, Etc., supra; Garner v. Avoyelles Parish Sheriffs Dept., supra; and Jenkins v. Jefferson Parish Sheriffs Office, supra.
Presumably, the plaintiff considered that a suit against Sheriff Floyd Soileau would be fruitless. In the absence of an insurer and doubtful liability of the successor sheriff, plaintiff seeks to find some solvent continuum capable of standing in judgment. As we best understand plaintiffs theory, it is that because sheriffs maintain or control funds, the funds give life to a legal entity separate from that of the sheriff and that the entity is the “Sheriffs Department.” Plaintiff therefore urges that such an entity survives vacation of the office of sheriff by one natural person to be succeeded by a different natural person. On the contrary, a sheriffs department is nothing more than a functional organization by and through which a sheriff carries out his official and routine duties.
We have found no Louisiana Supreme Court case which has confronted head on the issue presented in this case. In Jenkins v. Jefferson Parish Sheriffs Office, 402 So.2d 669 (La.1981), the supreme court reversed one holding of the court of appeal, but it did not advert to or reverse the court of appeal’s ruling that the Jefferson Parish Sheriffs Office was not a legal entity capable of being sued. In Jenkins the plaintiff brought suit against several parties, including Sheriff Alwynn J. Cronviek and Jefferson Parish Sheriffs Office. At 385 So.2d at 579 the court of appeal said:
“As to Jefferson Parish Sheriffs Office, it is not a legal entity capable of being sued. It is simply an office operated by the Sheriff of Jefferson Parish whose authority is derived from the constitution. Art. 5, § 27, and Liberty Mut. Ins. Co. v. Grant Parish, etc., 350 So.2d 236 (La.App. 3rd Cir.1977) writs refused 352 So.2d 235.”
The supreme court granted a writ to review the court of appeal ruling which held that the sheriff of a parish was not vicariously liable for the tort of a deputy sheriff committed in the exercise of the functions for which the deputy was employed. The supreme court reversed that holding, but it did not disturb the holding quoted above.
Blair v. Tynes was a wrongful death action in which various parties were sued, including the driver of a pick-up truck and “The Washington Parish Sheriffs Department through Sheriff Benny Rayburn” and “its insurer.” Although the opinion indicated initially that the title used was “Department”, in all other references throughout the opinion the word “Office” is substituted. The trial court found several parties at fault including the Washington Parish Sheriffs Office. The court of appeal reversed as to the Washington Parish Sheriffs Office and another defendant. The supreme court reinstated the trial court judgment.
No where in Blair v. Tynes does the supreme court ever advert to the legal issue of whether the Washington Parish Sheriffs Department (or Office) was a juridical person. The issue was not raised in the supreme court', and a reading of the court of appeal opinion shows that the issue was not raised there. Apparently, there was no reason or occasion for a challenge on this point, and two reasons would appear from the face of the opinion. First, the opinion suggests the existence of insurance covering the sheriff and the deputies who were at fault. Second, the suit against the “Department” was brought through the Sheriff, Benny Rayburn.
It would appear to us that the court of appeal and the supreme court were confronted with a case in which the pleadings as made up by the parties did not require them to attach any significance to the Washington Parish Sheriffs Department (or Office) being named as a party. As suggested by counsel for defendant in the case before us, the supreme court merely continued the use of the name and made casual use of the shorthand reference to the department or office, when in fact the true defendant was the Sheriff, Benny Rayburn. This treatment by the supreme court in no way indicates that it considers a sheriffs department or office to be a legal entity, a juridical person, which may be sued and stand in judgment.
Wagoner v. Dyson, supra, came up on appeal on a venue issue. It did not present an issue as to whether or not a sheriffs department was a legal entity. Plaintiffs sued Sheriff Raywood LeMaire and the Vermilion Parish Sheriffs Office for a tort allegedly committed by a Vermilion Parish sheriffs deputy, Walter Dyson. They also sued Dyson. Plaintiffs filed their suit in St. James Parish, the domicile of Dyson and the plaintiffs. The district court in St. James Parish dismissed the suit on an exception of venue. The court of appeal found the ruling correct but transferred the case to Vermilion Parish, the proper venue, rather than letting.the dismissal stand.
In Wagoner the court referred to LSA-R.S. 13:5104(B) governing the venue of suits against political subdivisions of the state or against an officer or employee of a political subdivision arising out of performance of official duties. Then, without any citation of authority, the court of appeal made the following statement: “There is no question that the Vermilion Parish Sheriffs Department is a political subdivision of the state and that LeMaire is an officer thereof.” To begin with, we entirely disagree that a sheriffs department is a political subdivision of the state, for as we indicated earlier in this opinion, no constitutional provision or statute establishes such a department as a legal entity. Therefore, it cannot be a political subdivision of the state. For these reasons we do not subscribe to the statement quoted above from Wagoner v. Dyson.
A majority of the panel in this matter is now of the view that the majority opinion on original hearing rendered on June 2, 1993, is erroneous. The present majority is of the opinion that a sheriffs department or office, as distinct from the sheriff, is not a legal entity which may be sued or stand in judgment. Because the Evangeline Parish Sheriffs Department, the only defendant in this case, is not a juridical person, the plaintiffs suit fails to state a cause of action. We will vacate the judgment of the trial court in its entirety because the trial court did not have a cause of action before it.
The proper disposition of the case at this point has given us some concern. One member of the majority on the main issue is of the opinion that the case should be dismissed outright. The author of this opinion has reservations concerning a remand to allow the plaintiff to amend her petition to assert a cause of action, that is, to bring in other possible defendants.
DECREE
For the reasons stated above, the judgment of the trial court in its entirety is vacated and set aside. We hereby order that this case be remanded to the trial court for the purpose of permitting plaintiff to amend her petition to join other parties, if she can, for the purpose of curing the failure of her petition to assert a cause of action. The plaintiff shall have forty-five days from the day this judgment becomes final to file her amendment. We assess the costs of this appeal to the plaintiff-appellant.
JUDGMENT OF TRIAL COURT VACATED AND SET ASIDE; CASE REMANDED.
CULPEPPER, J., concurs, except he would not remand.
THIBODEAUX, J., concurs in part and dissents in part and assigns reasons.
COOKS, J., dissents and assigns written reasons.
. In a brief filed following oral argument at the rehearing, counsel for defendant asserts that in Wagoner v. Dyson, supra, Sheriff LeMaire filed an exception of no cause of action in the trial court (St. James Parish) on behalf of the Vermilion Parish Sheriff's Office (as it was originally referred to) on the ground that it was not a legal entity and that the exception of no cause of action was sustained and the suit against it was dismissed. Counsel attached to his brief facsimile copies of the motion and judgment. We doubt that we can take judicial notice of these proceedings. Moreover, the court of appeal may have felt that since the St. James Parish District Court was not a court of proper venue, its action was not valid. While we find the point interesting, we malee no comment thereon.
. The author of this opinion wishes to state that, in agreeing to a remand, he does not wish to imply that such action will in anyway preserve to the plaintiff any rights she may have otherwise lost. No such issues are before us at this time, and I have no reason or basis to prejudge them.
Dissenting Opinion
dissenting.
For the reasons stated in the majority opinion on original hearing, I believe the
Surely, the non-existent “Evangeline Parish Sheriffs Department,” if we accept defendant’s position, did not authorize the filing of pleadings in this ease nor secure the services of an attorney to vigorously defend plaintiffs claims. There is little doubt that the current Sheriff of the Parish of Evangeline had full notice of the pendency of this action; and, through his attorney, he fully litigated the claims raised in the petition. The case was tried on the merits after Floyd Soileau, the predecessor sheriff, was removed from office. Sheriff Morein was elected as his immediate successor. Both sheriffs were represented by the firm of Oats and Hudson which answered the original petition and advanced the case through trial. In Jenkins v. Jefferson Parish Sheriff’s Office, the Louisiana Supreme Court unquestionable recognized that any money judgment against a predecessor sheriff in his official capacity may be recovered from the official funds of a successor sheriff. To dodge the substantive holding in Jenkins, the real defendant has decided to play “hide and seek.” Our procedural rules do not favor such games which are designed merely to thwart the substantive rights of litigants and to cause competent attorneys to experience “prescription” nightmares.
As confessed during oral argument, on remand Sheriff Morein intends to assert the defense of prescription in response to any amended pleadings filed to name him as a party defendant in this action. Thus, I am not in favor of remanding this case without further safeguards to prevent the occurrence of an obvious injustice. First, plaintiff should not be required to cure the petition by amending to assert “a cause of action.” The petition sufficiently states a cause of action. If required to amend the petition, plaintiff should be allowed to name the real party defendant and the trial court should permit the amendment to relate back to the date of filing of the original petition if as articulated in Ray v. Alexandria Mall, 434 So.2d 1083:
(1) The amended claim arises out of the same transaction or occurrence set forth in the original pleading;
*1324 (2) The purported substitute defendant had notice of the institution [here pen-dency] of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant knew or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant is not a wholly new or unrelated defendant.
See also, Sonnier v. Norwood Const. Co., 617 So.2d 580 (La.App. 3rd Cir.1993); Abercrombie v. V.P. Pierret, 532 So.2d 212 (La. App. 3rd Cir., 1988); Stevens v. Charter Crude Oil, 470 So.2d 535 (La.App. 1st Cir., 1985). Furthermore, I believe it is an inexcusable waste of judicial time to try this case anew if plaintiff successfully establishes the “relation back” criteria mentioned in the cited cases. The current sheriff is aware of this pending action and fully litigated this case through trial on the merits. It is patently unfair to require plaintiff to prove her claims again under the circumstances. Thus, I disagree with the majority’s decision on rehearing to remand this case without further instructions. To curtail such future procedural maneuvering, it makes more sense in practice simply to recognize that sheriffs departments are suable legal entities.
Concurrence in Part
concurring in part and dissenting in part.
I concur in part for the sole purpose of remanding to the district court to allow the plaintiff to amend her petition to add other possible defendants.
I respectfully dissent from the majority opinion for the reasons assigned by Judge Cooks and for the following additional reasons.
The majority holds that plaintiffs petition was deficient in that it did not state a cause of action against the “Evangeline Parish Sheriffs Department.”
The plaintiffs petition asserts that the “Evangeline Parish Sheriffs Department, a political subdivision of the State of Louisiana ...” was being sued. For purposes of an exception of no cause of action, a court has to assume the correctness of this allegation. The legal sufficiency of the plaintiffs petition was, therefore, adequate to overcome the exception of no cause of action asserted by the Sheriffs Department. Given the correctness of this assertion for the purposes of the exception, it cannot be said that the law affords no remedy to Ms. Riley. See, e.g., Meche v. Arceneaux, 460 So.2d 89 (La.App. 3d Cir.1984). Because Ms. Riley’s petition was not attacked on any other ground, the Evangeline Parish Sheriffs Department was a proper party defendant and a legal entity capable of being sued and standing in judgment for the plaintiffs monetary relief.
The majority errs in sustaining the defendant’s exception of no cause of action.
Dissenting Opinion
dissenting.
I dissent from the holding of the majority in this case for the reason that I do not believe that a “Sheriffs Department” is a legal entity which may be sued or stand in judgment. In my opinion the judgment in this case is a nullity.
