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Lapuyade v. Rawbar, Inc.

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

FRANCESCA M. LAPUYADE
v.
RAWBAR, INC. D/B/A ACME OYSTER HOUSE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 719-934, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, FRANCESCA M. LAPUYADE Michael R. Allweiss Marynell L. Piglia

          COUNSEL FOR DEFENDANT/APPELLEE, JFC INTERNATIONAL, INC. Helen M. Buckley David R. Frohn

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          FREDERICKA HOMBERG WICKER JUDGE.

         FHW

         SJW

         JJM

         This is a tort case in which Appellant, Francesca Lapuyade, seeks review of the trial court's June 1, 2018 judgment granting Appellee's, JFC International, Inc., (JFC), motion for summary judgment and dismissing Appellant's claims against JFC. For the following reasons, we affirm the trial court's judgment.

         FACTS & PROCEDURAL HISTORY

         The Appellant and Appellee have previously sought this Court's review regarding a different set of procedural issues stemming from the same facts, portions of which have been reiterated below.[1]

         On October 10, 2012, Appellant filed suit against Acme Oyster House ("Acme") alleging she contracted Salmonella poisoning after eating a lettuce wedge with blue cheese dressing and artichoke soup at its establishment located on Veterans Blvd. in Metairie, Louisiana on May 6, 2012. She alleged that she became ill the day after eating at Acme and was admitted to East Jefferson General Hospital on May 9, 2012, where she remained for eight days before being discharged on May 17, 2012. Appellant asserted Acme was negligent in failing to properly store, handle and prepare the food it served to its customers. Acme answered the lawsuit on December 6, 2012, denying all allegations.[2]

         On April 2, 2014, Appellant amended her petition to add Little Tokyo Restaurant, Inc. ("Little Tokyo"), Moon Marine USA Corp. ("Moon Marine"), and their insurers as defendants. In the amended petition, Appellant alleged that she had dined at Little Tokyo restaurant located on N. Carrollton Ave. in New Orleans on April 29, 2012. She alleged that although her treating doctor originally believed the source of her food poisoning was Acme, which he noted in her medical records, her treating doctor thereafter indicated for the first time in October 2013, that there had been a Salmonella outbreak at the time Appellant became sick that had been traced to a product called "Tuna Scrape."[3] Appellant asserted that the source of this Tuna Scrape was Moon Marine, which had distributed its product to Little Tokyo.

         Appellant again amended her petition on June 26, 2015, adding JFC International, Inc. ("JFC"), appellee herein, as a defendant. Appellant alleged that JFC is an entity which purchased Tuna Scrape from Moon Marine and sold and distributed the product to various restaurants, including Little Tokyo. Appellant further alleged that JFC was advised by Moon Marine in April 2012 to contact the accounts to which JFC distributed Tuna Scrape on behalf of Moon Marine, and inform them that the Tuna Scrape had been recalled because an FDA investigation revealed the tuna was potentially contaminated with Salmonella. Appellant asserted that JFC failed to notify Little Tokyo of the recall, which occurred prior to her dining at Little Tokyo and becoming ill.

         On February 9, 2015, Moon Marine filed an exception of prescription asserting that Appellant's petition against it was prescribed on its face, as it was not filed within one year from the date of loss. Thereafter, JFC and Little Tokyo filed their own exceptions of prescription, adopting Moon Marine's position.

         After a hearing on Moon Marine, JFC, and Little Tokyo's exceptions of prescription, the trial court sustained the exceptions and dismissed Appellant's claims against the defendants with prejudice. Appellant appealed and on April 13, 2016, this Court reversed the trial court's decision and remanded the case for further proceedings. [4]

         On March 6, 2018, JFC filed a motion for summary judgment seeking to have Appellant's claims against it dismissed with prejudice. In its motion, JFC alleged that on April 4, 2012, it delivered Moon Marine's Tuna Scrape to Little Tokyo, and on April 13, 2012, Moon Marine advised JFC of the product's recall for suspected Salmonella contamination. JFC further alleged that on April 16, 2012, it contacted Little Tokyo to "quarantine the recalled Tuna Scrape and make arrangements for it to be collected and returned to Moon Marine."[5] On this same day, JFC alleged that Little Tokyo informed JFC that it no longer had any of the recalled Tuna Scrape in stock. JFC's motion then reiterated Appellant's claim that she dined at Little Tokyo Restaurant in New Orleans on April 29, 2012, became ill on May 7, 2012, and was hospitalized and treated for Salmonella poisoning from May 9 to 17, 2012.

         In providing the aforementioned timeline, JFC argued that it timely discharged its legal obligations with respect to the contaminated Tuna Scrape on April 16, 2012, when it contacted Little Tokyo, and that Appellant had no claim against JFC for her Salmonella food poisoning. In a subsequent memorandum in support of JFC's motion for summary judgment, which was filed on the same day as the motion, JFC argued that it discharged any duty it may have owed Appellant by "declaring the defect in the tuna" to Little Tokyo once it was advised of the defect by Moon Marine and cannot be held responsible for Little Tokyo's negligence.

         On March 13, 2018, the trial court set a hearing for May 10, 2018, [6] to show cause why JFC's motion for summary judgment should not be granted. Thereafter, the parties filed other motions not relevant to this opinion which resulted in the matter being continued to May 23, 2018.[7] On May 7, 2018, Appellant filed a memorandum in opposition to JFC's motion for summary judgment in which she argued that although JFC advised Little Tokyo by telephone of a recall, JFC failed to inform Little Tokyo of the reason for the recall and failed to provide the specific notice recommended by Moon Marine.

         At the May 23, 2018 hearing, the trial court heard JFC's motion for summary judgment and several other unrelated motions.[8] In a judgment rendered June 1, 2018, the trial court granted JFC's motion for summary ...


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