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ELIZABETH GAMBEL,            *                    NO. 2006-CA-0403
GREGORY F. GAMBEL, JOHN
J. CUMMINGS, III, AND HUGH   *                    COURT OF APPEAL
P. LAMBERT
*                            FOURTH CIRCUIT
VERSUS
*                            STATE OF LOUISIANA
U-PARK SYSTEMS OF
LOUISIANA, INC.,             *
SCOTTSDALE INSURANCE
CO., GENERAL STAR
INDEMNITY COMPANY AND
FERNANDO M. DAVILA, JR.
CONSOLIDATED WITH:           CONSOLIDATED WITH:
PAUL M. TRAHAN AND MEA       NO. 2006-CA-0404
CULPA RECORDING STUDIO,
510 I/2 GRAVIER ST., NEW
ORLEANS, LA.
VERSUS
JOHN J. CUMMINGS, III, 416
GRAVIER ST., NEW
ORLEANS, LA., JEFFERSON
INSURANCE GROUP, LLOYDS
OF LONDON INSURANCE
ABC INSURANCE, XYZ
INSURANCE, JOHN
CUMMINGS, U PARK, INC.




CONSOLIDATED WITH:         CONSOLIDATED WITH:
THE TRAVELERS              NO. 2006-CA-0405
INSURANCE COMPANY,
LAFAYETTE INSURANCE
COMPANY, AND PICKERING
& ASSOCIATES, D/B/A
PICKERING, COTOGNO &
DUNN, A PARTNERSHIP        February 7, 2007
VERSUS
JEFFERSON INSURANCE
COMPANY OF NEW YORK,
GREGORY GAMBLE, AND U
PARKING COMPANY, INC.
CONSOLIDATED WITH:         CONSOLIDATED WITH:
THE HARTFORD INSURANCE     NO. 2006-CA-0406
COMPANY OF THE
SOUTHEAST, J. A. HOERNER
COMPANY, INC. AND
HOERNER CORPORATION
VERSUS
GREGORY GAMBEL, JOHN J.
CUMMINGS, III, HUGH P.
LAMBERT, JEFFERSON
INSURANCE COMPANY OF
NEW YORK, U-PARK SYSTEM
OF LOUISIANA, INC. AND
SCOTTSDALE INSURANCE
COMPANY




APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NOS. 98-17717 C/W 98-17738 C/W 98-17753 C/W 98-17754, DIVISION
“I-14”
Honorable Piper Griffin, Judge
Judge Terri F. Love
(Court composed of Judge Charles R. Jones, Judge Terri F. Love, Judge
Roland L. Belsome)
James P. Nader
Shaun M. Smith
LOBMAN, CARNAHAN, BATT, ANGELLE & NADER
400 Poydras Street
The Texaco Center, Suite 2300
New Orleans, LA   70130
COUNSEL FOR THE HARTFORD INSURANCE COMPANY
W. Patrick Klotz
KLOTZ & EARLY
700 Camp Street
Third Floor
New Orleans, LA   70130
COUNSEL FOR QUEEN & CRESCENT HOTEL, L.L.C.
AFFIRMED




This appeal arises from a fire that occurred on October 17, 1997, at
309 Magazine Street.  Hartford Insurance Company filed suit against Queen
& Crescent Hotel, L.L.C. seeking damages as a result of the fire.  Queen &
Crescent Hotel, L.L.C. filed a peremptory exception of prescription, which
the trial court granted.  We find that the trial court did not err and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 17, 1997, a fire occurred at 309 Magazine Street (“the
Building”) in a building owned by John Cummings, III, Gregory Gambel,
Elizabeth Gambel, and Hugh Lambert (collectively referred to as “the
Owners”).  The fire damaged several adjacent buildings, including, but not
limited to, buildings owned by Hoerner Corporation and J.A. Hoerner
Company, Inc. (hereinafter collectively referred to as “Hoerner”).  As a
result of the fire, multiple lawsuits were filed, four of which are consolidated
in this appeal.  However, the case sub judice involves Hartford Insurance
Company (“Hartford”) and Queen & Crescent Hotel, L.L.C. (“Queen &
Crescent”).  The Owners leased the Building to Queen & Crescent from




September 1, 1996, to August 31, 1997.  During that time, Queen &
Crescent used the Building as a parking facility.
Hartford insured Hoerner.  In October 1998, Hartford and Hoerner
filed a petition against Greg Gambel, John Cummings, III, Hugh Lambert,
Jefferson Insurance Company of New York, U-Park System of Louisiana,
Inc. (“U-Park”), and Scottsdale Insurance Company alleging that the
defendants were jointly and solidarily liable for damages.  Hartford
specifically sought reimbursement of the money it paid to its insured,
Hoerner, for the fire related damages.  On March 3, 2000, Hartford and
Hoerner filed an amended and supplemental petition adding General Agents
Insurance Company of America, Inc. (“General Agents”) as a defendant.  On
June 16, 2000, Hartford and Hoerner filed a second amended and
supplemental petition alleging specific acts of negligence.  On November 28,
2001, Hoerner dismissed all of its claims.  On October 29, 2003, Hartford
filed a motion and order for leave to file a second amended and
supplemental petition.  The trial court granted leave and on February 4,
2004, Hartford added Queen & Crescent as a defendant.  Hartford also
alleged that all defendants breached “their respective and non-delegable
legal duty . . .                                                               .”  Hartford subsequently dismissed U-Park and General
Agents as defendants.




Queen & Crescent filed the declinatory exceptions of insufficiency of
service of process and vagueness, the dilatory exception of nonconformance
with La. C.C.P. art. 891, and later filed a peremptory exception of
prescription.  The trial court denied the exception of insufficiency of
process, granted the exception of vagueness and ambiguity with ten days for
Hartford to amend the petition, and granted the exception of prescription.
The trial court dismissed all of Hartford’s claims against Queen & Crescent
with prejudice.  Hartford’s appeal timely followed.
Hartford asserts five assignments of error on appeal.  However, the
errors all relate to whether the trial court was correct in finding that
prescription barred Hartford’s claims against Queen & Crescent.
STANDARD OF REVIEW
A trial court’s factual findings are reviewed using the manifest
error/clearly wrong standard.  Rosell v. ESCO, 549 So. 2d 840, 844 (La.
1989).   If findings of fact have no reasonable factual basis, the appellate
court may reverse the findings as clearly wrong.   Mart v. Hill, 505 So. 2d
1120, 1127 (La. 1987).  The factfinder’s conclusion must be reasonable.
Stobart v. State, Through Dep’t of Transp. and Dev., 617 So. 2d 880, 882
(La. 1993).
A trial court's legal findings are reviewed under the de novo standard.




Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La. App. 4 Cir. 8/17/05), 916
So.2d 1149, 1153.
PEREMPTORY EXCEPTION OF PRESCRIPTION
The exception of prescription is a peremptory exception.  La. C.C.P.
art. 927.                                                                          “[P]rescriptive statutes are strictly construed against prescription . .
. .”  Carter v. Haygood, 04-0646, p. 10 (La. 1/19/05), 892 So. 2d 1261,
1268.   The exceptor bears the burden of proof at the trial of the peremptory
exception.  Spott v. Otis Elevator Co., 601 So. 2d 1355, 1361 (La. 1992).
The burden shifts to the plaintiff if prescription is evident on the face of the
pleadings.  Williams v. Sewerage & Water Bd. of New Orleans, 611 So. 2d
1383, 1386 (La. 1993).
La. C.C.P. art. 1153 states that an amended petition or answer can
relate back to the original pleading if is “arises out of the conduct,
transaction, or occurrence.”  The Louisiana Supreme Court analyzed La.
C.C.P. art 1153 regarding amendments that change the identity of parties and
held that four requirements must be met in order to relate back to the date of
the original petition.   Ray v. Alexandria Mall, 434 So. 2d 1083, 1086-87 (La.
1983).   Louisiana jurisprudence requires that:
(1) [t]he amended claim must arise out of the same
transaction or occurrence set forth in the original
pleading; (2) [t]he purported substitute defendant
must have received notice of the institution of the
action such that he will not be prejudiced in




maintaining a defense on the merits; (3) [t]he
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; (4) [t]he purported substitute
defendant must not be a wholly new or unrelated
defendant, since this would be tantamount to
assertion of a new cause of action which would
have otherwise prescribed.
Id., 434 So. 2d at 1087.  The “[i]nterruption of prescription against one joint
tortfeasor is effective against all joint tortfeasors.”  La. C.C. art. 2324.
Hartford alleges that Queen & Crescent failed to keep the Building up
to the proper building codes because it did not have adequate sprinkler
systems installed when it leased the Building and used it as a parking
facility.  Queen & Crescent leased the Building from September 1, 1996, to
August 31, 1997.  To defeat the exception of prescription, Hartford avers
that the third amended and supplemental petition, filed on October 29, 2003,
relates back to the original petition filed in October 1998.
Prescription is evident on the face of the pleadings in the case sub
judice.  However, Hartford alleges that Queen & Crescent is a joint
tortfeasor; thus, Hartford avers the original petition served to interrupt
prescription.  Hartford’s argument is without merit.  First, while Hartford’s
third amended and supplemental petition, which named Queen & Crescent
as a defendant, arose out of the same transaction or occurrence, that is the




only Ray factor that supports relating the amendment back to the original
petition.  Second, the record is devoid of evidence that Queen & Crescent
received notice of Hartford’s lawsuit prior to the third amended and
supplemental petition in February 2004.  Third, the record is devoid of
evidence demonstrating that Queen & Crescent should have known that
Hartford would have brought the lawsuit against it but for a mistake.  Fourth,
neither Queen & Crescent, nor any of its affiliates were named as defendants
in the original petition.  As such, Queen & Crescent was a wholly new and
unrelated defendant contained in the third amended and supplemental
petition.  Lastly, Queen & Crescent’s lease of the Building expired almost
two months prior to the fire.
Considering our examination of the Ray factors and that Queen &
Crescent was not leasing the Building at the time of the fire, we find that
Hartford’s third amended and supplemental petition naming Queen &
Crescent as a defendant does not relate back to the original petition.  Thus,
Hartford’s alleged claims against Queen & Crescent have prescribed.
Accordingly, we find that the trial court did not err and affirm.
DECREE
For the above reasons, we find that the trial court did not err in
granting Queen & Crescent’s exception of prescription and affirm.




AFFIRMED

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