EARL T. LINDSAY, JR., AND JOYCELYN L. BUTLER, INDIVIDUALLY AND ON BEHALF OF THE DECEDENT, EARL T. LINDSAY
PORTS AMERICA GULFPORT, INC., ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01610,
DIVISION "C" Honorable Sidney H. Cates, Judge
R. Cannella Christopher C. Colley Jeremiah S. Boling BARON
& BUDD, P.C. COUNSEL FOR PLAINTIFFS/APPELLEES
Richard P. Sulzer Robert E. Williams, IV Nicole M. Loup
SULZER & WILLIAMS, LLC Jacques P. DeGruy Constance C.
Waguespack PUSATERI, JOHNSTON, GUILLOT & GREENBAUM, LLC
Kevin J. LaVie Robert J. Barbier PHELPS DUNBAR LLP COUNSEL
M. Williams Inemesit U. O'Boyle Zachary R. Smith CHEHARDY
SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, LLP and
Brian King Jason F. Giles Anthony J. Milazzo, III James E.
Courtenay Justin A. Reese The King Law Firm, LLC COUNSEL FOR
composed of Judge Terri F. Love, Judge Regina
Bartholomew-Woods, Judge Paula A. Brown
F. LOVE JUDGE
wrongful death suit, intervening plaintiffs, Reginald Rivers
and Lyndon Rivers ("Intervenors"), appeal the
judgment of the trial court maintaining the peremptory
exception of prescription in favor of defendants and
plaintiffs and dismissing the petition for intervention with
prejudice. Intervenors seek to relate the date of the filing
of their petition back to the date of the timely filing of
the original petition against defendants. The trial court
granted the exception of prescription finding that based on
Stenson v. City of Oberlin, 10-0826 (La. 3/15/11),
60 So.3d 1205, La. C.C.P. art. 1041 applies to the petition
for intervention; and, pursuant to the statute, the
prescriptive period had lapsed.
Stenson does not apply and analysis under La. C.C.P.
art. 1041 is not required where the parties share a single
cause of action. To the extent Intervenors are able to
establish with clear and convincing evidence that they are
children of the decedent, we find the trial court's
dismissal of the petition to intervene premature. Should
Intervenors establish a familial relationship, meeting the
requirements of La. C.C.P. art. 2315.2, jurisprudence directs
that the wrongful death suit filed by plaintiffs interrupts
prescription as to all of decedent's children.
Accordingly, we vacate the judgment granting the exception of
prescription and remand the matter to allow Intervenors an
opportunity to establish decedent's paternity and then
consistent with that determination render judgment on the
exception of prescription.
BACKGROUND AND PROCEDURAL HISTORY
to the pleadings, in or around 1994, Reginald Rivers met Earl
T. Lindsay, Jr. and informed him that he and his brother
Lyndon Rivers were the biological children of Earl T.
Lindsay, Sr. From 1994 on, Earl T. Lindsay Jr. and Reginald
Rivers allegedly carried on a relationship as half-siblings.
February 18, 2015, Earl T. Lindsay, Sr. died from
asbestos-related lung cancer. His children Earl T. Lindsay,
Jr. and Joycelyn Butler (collectively "Plaintiffs")
filed a wrongful death action against Defendants Georgia
Pacific, LLC, Hartford Accident and Indemnity Company, SSA
Gulf, Inc., and Ports of America Gulfport, Inc. F/K/A P&O
Ports Gulfport, Inc. (collectively "Defendants").
Plaintiffs filed their petition for damages on February 17,
2016, as the surviving descendants of the decedent.
Rivers and Lyndon Rivers (collectively
"Intervenors") subsequently became aware of the
Plaintiffs' wrongful death action and attempted to join
their half-siblings in the lawsuit to recover damages.
Intervenors allege that Plaintiffs downplayed the existence
of any litigation and/or refused to allow the Intervenors to
join them in the suit. In an effort to preserve their rights,
the Intervenors filed a petition for intervention on May 1,
2017, re-asserting and reaffirming the allegations, exhibits,
and assertions contained in Plaintiffs' original petition
for damages. Intervenors also alleged that they were
the biological children of the decedent.
filed extensive exceptions to intervention, including
exceptions based on prescription. Plaintiffs also filed a
peremptory exception of prescription adopting and
re-asserting Defendants' arguments. In December 2017, the
filed a First Amending and/or Supplemental Petition for
Intervention and to Establish Paternity. Discovery was
permitted and evidence was submitted purporting that (1) the
decedent publicly held himself out as the biological father
of Intervenors; (2) Plaintiffs knew of their familial
relationship with Intervenors; and (3) ...