STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2023 CA 0558 BRIGITTE TAYLOR-HAYNES

VERSUS TROPICANA ENTERTAINMENT LLC D/B/A THE BELLE OF BATON ROUGE Judgment Rendered:

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### 1 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge

State ofLouisiana Trial Court Docket Number C658360, Sec. 27 

### Hon.Trudy M.White,Judge Presiding

Alvin R. Washington Baton Rouge, Louisiana

Brett M. Bollinger 

### Jeffrey E. McDonald L. Peter Englade Covington, Louisiana 

### NOV 15 2023

Counsel for Plaintiff/ Appellant, Brigitte Taylor -

Haynes

Counsel for Defendant/Appellee, 

### Catfish Queen Partnership in Commendam

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.PENZATO, J. Plaintiff/

appellant, Brigitte Taylor - Haynes, appeals from the trial court's 

### January5, 2023judgment granting a " Motion forSummary Judgment/Exception of Prescription" filed 

### by defendant/appellee, Catfish Queen 

### Partnership in Commendam. 

### For the following reasons, we reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY 

### Brigitte Taylor -

Haynes allegedly sustained injuries in a slip and fall accident at the Belle of Baton Rouge, a casino, on June 6, 2016. She filed suit on June 1, 2017 against Tropicana Entertainment, LLC as the alleged owner and operator of the Belle of Baton Rouge at the time of her accident. Tropicana answered the 

### petition on July 5, 2017, 

### asserting that it " does not directly own or operate the Belle of Baton Rouge." ( Emphasis added.) With leave of court, Ms. Taylor - Haynes amended her petition for damages
on December 11, 2020. 

### The amended petition named Catfish Queen Partnership in Commendam D/B/A Belle of Baton Rouge as a defendant and alleged that Catfish Queen owned and operated the Belle ofBaton Rouge. Catfish Queen answered the 

## amended petition on February 12, 2021 and admitted that it owned and operated the Belle ofBaton Rouge. 

### On February 7, 2022, morethan fouryears aftersuitwasfiled and morethan one year after Catfish Queen was added as a defendant, Tropicana filed a motion 

### for summary judgment, 

## seeking dismissal of the claims against it. Tropicana maintained that it did not "

### directly own or operate" the Belle ofBaton Rouge. The 

### motion was granted, and all claims asserted against Tropicana were dismissed via judgment signed on March 31, 2022. 

### On July 12, 2022, 

### Catfish Queen filed the subject motion for summary judgment and alternative peremptory exception ofprescription, asserting that Ms.

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### Taylor-Haynes's suit, filed more than one year afterthe alleged slip and fall, was prescribed. See La. C.C. art. 3492 (" Delictual actions are subject to a liberative prescription of one year.") See also La. C.C.P. arts. 927(A)(1) and 966. Catfish 

### Queen argued that,since Tropicanawas dismissed,the original petitiontimelyfiled against Tropicana did not interrupt prescription on the claims against it, Catfish Queen. Pursuant to La. C.C. art. 3462, prescription is 

### interrupted by the commencement of suit against the obligor in a court of competentjurisdiction and

venue. 

### The interruption ofprescription by suit againstonejointorsolidary obligor is effective as to all obligors. See La. C.C. arts. 1799, 2324(C), and 3503. 

## However,a suittimely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs. In this instance, no joint or solidary obligation would exist. 

### See Renfroe v State ex rel. Department ofTransportation and Development, 2001- 1646 (La. 2126102), 809 So.2d 947, 950. In response, Ms. Taylor - Haynes asserted that the amended petition related 

### backto the filing ofthe original petition. Louisiana Code of Civil Procedure art. 1153 provides, " When the action or defense asserted in the amended petition or 

### answer arises out ofthe conduct, transaction, or occurrence set forth or attempted 

### to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading." Ms. Taylor - Haynes also asserted that the relation 

### back criteria set forth in Ray v. Alexandria Mall, Through St. Paul Property & Liability Ins., 434 So.2d 1083, 1086-87 ( La. 1983) were satisfied. The trial court granted Catfish Queen' s " Motion for 

### Summary Judgment/Exception of Prescription" 

### in ajudgment signed on January 5, 2023, and 

### dismissed all claims asserted by Ms. Taylor - Haynes against Catfish Queen, with prejudice. 

### The trial courtfound thatthe issue was governed solely by La. C.C. art,

31799,' applicable to solidary obligors, and agreed with Catfish Queen that



### prescription was not interrupted against it afterTropicana was dismissed; therefore, the plaintiff's claims against Catfish Queen were prescribed. The trial court 

### expressly found that La. C.C.P. art. 

### 1153 did not apply and, therefore, did not 

### perform a relation backanalysis pursuantto Ray. 

### This appeal byMs.Taylor - Haynesfollowed. DISCUSSION 

### Generally,prescriptive statutes are strictly construed againstprescription and in favor ofthe claim sought to be extinguished by it. The burden of proof on the 

### issue ofprescription lies with the party asserting it unless the plaintiff's claim is barred on its face, in which case the burden shifts to the plaintiff. 

### Bailey v. 

### Khoury,2004-0620 (La. 1120105), 891 So.2d 1268, 1275. In this case, the amended petition is prescribed on its face because it was filed on December 11, 2020, over four years after the accident, which occurred on June 6, 2016. See La. C.C. art. 3492. Therefore, Ms. Taylor - Haynes had the 

### burden ofproving thatherclaims against Catfish Queen were not prescribed. On appeal, Ms. Taylor - Haynes asserts that the trial court erred in ruling that La. C.C.P.art. 1. 153 does not apply. 

### Ms.Taylor - Haynes furtherasserts thatthe Ray 

### criteria are satisfied, and the trial court erred by failing to find that the amended petition filed against Catfish Queen relates back to the date of the filing of the original petition naming Tropicana. We agree with both assertions. Relation Back as a Basis to Revive the Suit 

### In Renfroe, 809 So.2d at 949-950, the plaintifftimely filed suit against the Louisiana Department of Transportation and Development ( DOTD), erroneously 

### believing it was the party legally responsible for the roadway where the subject

Louisiana Civil Code art. 1799 states, " The interruption of prescription against one solidary obligor is effective againstall solidary obligors andtheir heirs."
4accident occurred. After the expiration of the prescriptive period, the plaintiff

amended the petition to name the correct owners ofthe roadway, and the claims against DOTD were dismissed. 

### The Louisiana Supreme Court stated that, because 

## the timely sued defendant was dismissed from the suit, prescription against the substitute defendants was not interrupted and plaintiff's suit against them was
prescribed, " unless some other basis to revive" the suit was found. Renfroe, 809 So.2d at 950. 

### The courtthen conducted a relation back analysis, applying the Ray criteria to the facts ofthe case. Renfroe, 809 So.2d at 950-953. 

### Similarly,see Laforte v. GulfIsland Fabrication, Inc., 2010- 1605 ( 

### La.App. 1st Cir. 513111), 65 So.3d 182, 185- 86, writ denied, 2011- 1484 ( La. 9130111), 71 So.3d 296, wherein this court stated, "[ Ijn this case, since the timely sued defendant... was dismissed from the suit, prescription against [ the substitute defendant] is not interrupted and the plaintiffs' suit against it has prescribed, unless some other basis to revive this suit is found." 

### Citing Renfroe, 809 So.2d at 950. 

### This court then applied the Ray,criteria to the facts of the case to determine whether the amended petition adding the substitute defendant related back to the date the original petition was filed. See La. C.C.P. art. 1153. Laforte, 65 So.3d at 186-7. 

### See also Liberty Mutual Fire Ins. Co. v. Randall J Hebert & Associates, Inc.,

### 2019-767 (La.App. 3d Cir.4129120), 297 So.3d 1051, 

### 1055, finding thatjoint or solidary liability did not exist, 

### because the timely sued defendants were dismissed, and the amended petition did not relate backto the original filing date pursuant to Article 1153. 

### Here, the trial court ended its analysis upon concluding that the timely sued defendant, Tropicana, was dismissed. 

### The trial court legally erred by failing to determine whether " some other basis to revive this suit" existed, i.e., relation back

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### pursuant to Article 1153 and the Ray criteria.2 See Renfroe, 809 So.2d at 950.

Therefore, 

### we review the evidence de novo to determine whether the amended 

## petition naming Catfish Queen relates back to the timely filed suit against Tropicana. 

### See Landry v 

### City of Mandeville, 2021- 1362 ( La. 

### App. 1st Cir. 4/27/22), 

### 342 So.3d 337, 344, writ denied, 2022-00828 ( La. 9127122), 347 So.3d 

### 155 (the de novo standard ofreview applies when one ormore legal errors interdict the fact-finding process.) Because we find legal error, we pretermit discussion of 

## the standard ofreview that would otherwise apply to Catfish Queen's motion for 

## summaryjudgmentandalternativeperemptoryexception ofprescription.3 AmendedPetition Naming Catfish Queen RelatesBack 

### As set forth in Ray,434 So.2d at 1086-1087, the following criteria are relied upon to determine whether La. C.C.P. art. 1153 allows an amendment, which

2 A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party ofsubstantial rights. Landry v. City ofMandeville, 2021- 1362 (La.App. 1st Cir.4127122), 342 So.3d 337, 344, writ denied, 2022-00828 (La. 9/2712.2), 347 So.3d 155. Because we find the 

### trial court legally erred by failing to apply La. C.C.P. art. 1153 and by failing to conduct a relation back analysis,wepretermit consideration ofwhetherthe trial court erred by applying La. C.C.P. art. 1799. Even without such a finding, a relation back analysis is required. See Findley v. 

### City of * Baton Rouge, 570 So.2d 1168, 1170 ( La. 1990), applying Article 1153 and the Ray 

### criteria where there was no allegation ofjoint or solidary liability between the City of Baton Rouge and the Recreation and Park Commission forthe Parish of Baton Rouge (BREC). 

### 3 Catfish Queen did not introduce exhibits into evidence during the hearing on its alternative exception ofprescription. Evidence not properly and officially offered and introduced cannot be considered on an exception of prescription, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Management Services, Inc.,2007-2143 ( La. 5121/08), 983 So.2d 84, 8$. Therefore, we do not consider the exhibits attached to Catfish Queen' s exception of prescription in connection with our de novo review. We also note that the result reached in this opinion would be the same ifwe considered Catfish Queen's assertion ofprescription pursuant to La. C.C.P. art. 966. Catfish Queen' s exhibits did not include the original and amended petitions 

### or the relevantjudgment dismissing Tropicana. Documents must specifically be filed in support ofor in opposition to a motion for summaryjudgment forthe court to considerthem; reference 

### to documents existing elsewhere in the record is not sufficient. Davis v. Hixson Autoplex of Monroe, L.L.C., 51, 991 ( La. App. 2d Cir. 5123118), 249 So.3d 177, 182. See also Troncoso v. Point Carr Homeowners Association, 2022-0530 ( La. App. 1st Cir. 1/ 10123), 360 So.3d 901, 915. Therefore, Catfish Queen failed to satisfy its summaryjudgment burden ofproof. See La. C.C.P. art. 966(A)(4) and ( D)( 1). Although La. C.C.P art. 966 was amended by La. Acts 2023, No. 317, § 1; La. Acts 2023, No. 368, § ( eff.Aug. 1, 2023) to provide a procedure for reference to documents previously filed into the record, this court has held that the 2023 amendment to 

### Article 966 cannot be applied retroactively.See Ricketson v. Mckenzie, 2023-0314 (La.App. 1st Cir. 10/4/23) --- So. 3d ---, ---, 2023 WL 7037495, * 4.
2

## changes the identity ofthe defendant, to relate back to the date of filing ofthe original petition:

1. The amended claim must arise out of the same transaction or 

### occurrence set forth in the original pleading; 2. 

### The purported substitute defendant must have received notice of the institution ofthe action such that he will not be prejudiced 

### in maintaining adefense onthe merits; 3. 

### The purported substitute defendant must know 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; and 4. 

### The purported substitute defendant must not be awholly new or unrelated defendant. 

### The doctrine of relation back of amended pleadings should be liberally applied, 

### particularly in the absence of prejudice. Where there is some factual 

### connexity between the original and amended assertions, together with some 

### identity ofinterest between the original and the additional or supplemental parties, amendment should be allowed. 

### Holmes v. Triad Hospitality,2011- 1486 (La.App. 3d Cir. 5116112), 89 So.3d 532, 535. 

### The first Ray criteria is undisputedly satisfied here. The claims against Catfish Queen set forth in the amended petition arise out of Ms. Taylor-Haynes' s 

### purported slip and fall accident at the Belle ofBaton Rouge on June 6, 2016. This is the same incident that forms the basis of Ms. Taylor-Haynes's claims against Tropicana in the original petition. 

### We consider the remaining Ray criteria together, since the strength ofthe relationship between Tropicana and Catfish Queen is pertinentto each. The prevention ofprejudice to the defendant in preparing and conducting its defense is the " gravamen" 

### ofthe second Ray criteria. Findley v. City ofBaton Rouge, 570 So.2d 1168, 1170 ( La. 1990). " A fundamental purpose of prescriptive statutes is to protect a defendant from stale claims and from the loss or non - preservation of relevant proof." 

### Findley, 570 So.2d at 1170. To avoid such 

### prejudice, the second Ray criteria concerns whether the newly added defendant

7received notice ofthe institution of the action. 

### An inference of notice may arise,



## and the amendment may relate back, where an identity ofinterest exists between 

## the originally named defendant and the partythe plaintiffintended to sue. In this instance, the institution of the action against one serves to provide notice of the litigation to the other. 

## Sufficiency ofthe identity of interests depends upon the closeness ofthe relationship between the parties in their business operations and
other activities. 

### Findley, 570 So.2d at 1171. The relationship between the entities must be ofsuch a close nature that there is an inference ofnotice. 1tlicken v. DHC OPCO-Napoleonville, LLC, 2018-0140 ( La. 

### App. 1st Cir. 11/ 2/ 18), 2018 WL 5732482, * 4 ( unpublished). In opposition to Catfish Queen's alternative exception of prescription, Ms. 

### Taylor - Haynes properly offered, filed, and introduced twenty-nine exhibits into

evidence! This evidence establishes that Ms. Taylor - Haynes was confronted with a " maze ofclosely related corporate" entities. See Renfroe, 809 So.2d at 952. Catfish Queen 

### is one of five closely related companies, along with Tropicana; New Tropicana Holdings, Inc.; New Jazz Enterprise, L.L.C.; and New Tropicana OpCo, Inc. 

### Tropicana was the parent company of New Tropicana Holdings and served as the manager of New Jazz. New Tropicana Holdings and New Jazz were Catfish Queen' s limited partners, and New Tropicana OpCo was Catfish Queen' s general partner. In response to plaintiff's requests for admission, Catfish Queen denied that it

was ever " 

### a direct subsidiary" of Tropicana; however, a 2018 lease assignment, 

### concerning property in Baton Rouge, identifies Catfish Queen as " an indirect and controlled subsidiary" of Tropicana. This document further states that Tropicana agreed to cause [ Catfish Queen] to assign" its right, title, and interest in the
4 Louisiana Code ofCivil Procedure art. 931 allows forthe introduction ofevidenceto support or controvert a peremptory exception.

8subject lease, 

## evidencing Tropicana's control over Catfish Queen. Similarly, a



### September 2018 loan document identifies Tropicana as Catfish Queen' s " ultimate parent company." 

### The documentwas signed byCatfish Queen's general partnerto allow Tropicana to refinance a loan, and Catfish Queen agreed to serve as
guarantor. The evidence, 

### including the September 2018 loan document, also reflects thatthese five entities shared many ofthe same officers. These entities also shared multiple addresses, in " c/o Tropicana," in Las Vegas, Nevada. For instance, several documents reflect that Catfish Queen, New Tropicana OpCo, New Tropicana Holdings, and New Jazz identified their municipal address as " c/o 

### Tropicana Entertainment Inc. 3930 Howard Hughes Parkway, 4" Mr., Las Vegas, NV 89169." 

### At othertimes, each company, including Catfish Queen, identified its

address as " c/o Tropicana Entertainment Inc., 8345 W. Sunset Road, Suite 300 Las Vegas, NV 89113." 5 

### The previously mentioned 2018 lease assignment identifies Catfish Queen' s address as " c/o Tropicana Entertainment Inc., 8345 W. Sunset Road, Suite 300 Las Vegas, Nevada 89113." This is also listed as Tropicana's address in several foreign corporation annual reports filed with the Louisiana 

### Secretary ofState. Catfish Queen does not deny a corporate connection with Tropicana. Instead, Catfish Queen asserts that Tropicana is not one of its " direct" partners. We find no merit in this argument. 

### The identity ofinterest determination considers morethan simplywhethera " direct" parent/subsidiary relationship exists. In Cortinez v. Handford, 490 So.2d 626 ( La. 

### App. 2d Cir. 1986), the 

### plaintiff,Cortinez, timely filed suit against " Jack Handford, d/b/a Jack' s Lounge" as the owner and proprietor ofthe lounge where she was injured; she also named 

### the property's liability insurer. Cortinez subsequently amended her petition to S Suite 200 is also listed. 9name Karo, Inc., 

### as the alleged owner ofthe lounge. Cortinez, 490 So.2d at 627.



### Mr. Handford and the insurer were subsequently dismissed from the suit. The 

### Second Circuit Court ofAppeal concluded thatthe relationship between the timely sued insurer and Karo, Inc., its insured, was sufficient to allow the amended 

### petition naming Karo, Inc.to relate back. Cortinez, 490 So.2d at 630. 

## In Findley,570 So.2d at 1172, the Louisiana Supreme Court found that the very close relationship" 

### between the City of Baton Rouge and BREL was 

### sufficient to allow the amended petition naming BREC as a defendant to relate backto the suit filed against the City. 

### Although BREC and the City were separate 

### entities, the City exercised " an element of control" over BREC similar to that 

### existing between corporations with interlocking officers and directors. Findley, 570 So.2d at 1171. 

### The relationship between the City and BREC " was much the

same" 

### as that between a parentcorporation and a subsidiary. Findley,570 So.2d at 1171- 1172. 

### Similarly, here, the evidence reflects that Tropicana exercised an element of control over Catfish Queen and their " very close relationship" was much the same" 

### as a parent corporation and its subsidiary. Tellingly, Catfish Queen does not assert that it has been prejudiced by Ms. Taylor-Haynes' s failure to name it as an original defendant. The same law firm and attorneys that represented Tropicana in this litigation since its inception also represent Catfish Queen. 

### These attorneys engaged in discovery on behalf of Tropicana, enabling Catfish Queen to benefit from these efforts and preventing prejudice due to the failure to preserve evidence or engage in a prompt investigation. 

### In Cortinez, 490 So.2d at 630, the court noted that the timely named insurer investigated the plaintiff's claims and the same attorneys that represented Mr. Handford, the dismissed original defendant, also represented Karo, Inc. " The 

### only reasonable inference is that Karo, Inc. must have received notice of the 

### institution ofthe action such that it will not be prejudiced in maintaining adefense

10on the merits." Cortinez, 490 So.2d at 630. 

### See Montminy v. Jobe, 23474, 600

So.2d 1211 124-5 ( La.App. 2d Cir. 1992), writ denied, 604 So.2d 1003 ( La. 1.992), 

## with the same attorney representing both the original and substituted defendants, and considering the tardiness with which [ the original defendant] clarified her
position, we fail now to view the [ substitute defendants] as wholly new and
unrelated parties." 

### Catfish Queen asserts that Tropicana advised Ms. Taylor - Haynes that it did not own or operate the Belle of Baton Rouge, information she " 

### simply ignored." 

## However,as pointed out by Ms.Taylor - Haynes, Tropicana asserted that it did not directly own or operate the premises, indicating it may have some indirect ownership or legal responsibility for the operation ofthe premises. Additionally, 

### Tropicana participated in this litigation for nearly four years before it clarified its position.6 

### See Montminy, 600 So.2d at 124, examining the original defendant's post - suit litigation tactics in its consideration ofthe Ray criteria, noting that the original defendant' s pleadings and litigation position were not " designed to 

### conclude her involvement in the litigation, directly and expeditiously." Montminy, 600 So.2d at 124. 

### After our de novo review, we conclude that an identity of interest exists between Tropicana and Catfish Queen such that notice ofthe institution ofthe suit 

### to Tropicana served to provide notice to Catfish Queen (second Ray criteria).' See 

### Findley, 570 So.2d at 1171; Micken, 2018 WL 5732482 at * 4. The undisputed, b In its answer, Tropicana asserted that the petition failed to state a cause ofaction and a right of action, with no factual support provided. Tropicana did not include an order to set these peremptory exceptions fortrial. See La. C.C.P. art. 929. Tropicana also asserted the affirmative 

### defenses offailure to mitigate, third - party fault, and plaintiffs sole fault, again with no factual support. See La. C.C. P. art. 1005; La. C.C. art. 2323. Tropicana' s boilerplate assertions could have further caused Ms. Taylor - Haynes to disregard Tropicana's assertion that it did not directly own oroperate" the Belle ofBaton Rouge. 7 For this reason, we find no merit in Catfish Queen's assertion that it did not receive notice of 

### suit during the prescriptive period and that this alone is a " fundamental flaw" in the plaintiff's relation back argument. Catfish Queen's reliance on cases like RenfYoe, 809 So.2d 947, discussing notice ofsuit where no identity of interest existed between the original and substitute defendant, is misplaced. Il

### close connection between Tropicanaand Catfish Queen also supports a finding that



## Catfish Queen was not a wholly new or unrelated defendant (fourth Ray criteria) and should have known that butfor a mistake concerning the identity ofthe proper 

## party defendant,the action would have been broughtagainst it (third Raycriteria). See Findley, 570 So.2d at 1172, citing the close relationship between BREC and the Cityas support forfindingthatthethird and fourth Ray criteriawere satisfied. Seealso Cortinez,490 So.2d at 630, wherein the court found the fourth Raycriteria was satisfied, because the plaintiffs original petition asserted a negligence claim against the owner and operator of Jack's Lounge. " 

### Accordingly, Karo, Inc. must 

### have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against it as the actual owner and operator ofthe lounge." Cortinez, 490 So.2d at 630. The same is true here. Ms. Taylor-Haynes' s claim has remained unchanged since the original petition was 

### filed; she asserts apremises liability cause ofaction againstthe owner and operator ofthe Belle of Baton Rouge. 

### We conclude that the Ray criteria are satisfied, and the amended petition 

### naming Catfish Queen as a defendantrelates backunder La.C.C.P. art. 1153 tothe date offiling ofthe original petition, naming Tropicana asthe ownerand operator ofthe Belle ofBaton Rouge. DECREE The 

### January 5, 2023 judgment granting the " Motion for 

### Summary Judgment/Exception of Prescription" 

### filed by Catfish Queen Partnership in Commendam is reversed. 

### We deny Catfish Queen's motion forsummaryjudgment and alternative peremptory exception raising the objection of prescription. The case is remanded to the trial court for further proceedings. All costs ofthis appeal 

### are assessed against Catfish Queen Partnership in Commendam. REVERSED AND REMANDED.

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