Christina Taylor VS Bayou Fabricators, Roderick LaCombe and X Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT iF NO 2009 CA 0317 CHRISTINA TAYLOR VERSUS BAYOU F ABRICATORS RODERICK LACOMBE AND X INSURANCE COMPANY Judgment On Appeal Rendered September 11 2009 from the 18th Judicial District Court In and for the Parish of Iberville State of Louisiana Trial Court No Honorable Robin Free 451 66 Judge Presiding Chris D Nalls Attorney for Plaintiff Baton Christina Taylor Rouge LA Suzanne W Miller Baton Rouge LA BEFORE CARTER C J Appellant Attorney for Defendants Appellees Bayou Fabricators et al GUIDRY AND PETTIGREW JJ CARTER C J This LSA R S appeal 13 850 raises the issue of whether requires a and transmission fees begins to and exclusive of that the and transmission fee of regardless acknowledgment of plaintiff failed to send the of the of whether case as clerk of transmission document the trial days facsimile court received the transmitted court within five court an Because the plaintiff required document and payments undisputed facsimile plaintiff s the original signed of the transmission to the receipt to payment of the applicable 5 00 be sent within five legal holidays after the clerk of transmission filing pursuant The trial court found that the run mandatory statutory language required applicable filing fee facsimile from the clerk of court before the five receipt day period for filing the original document filing a days dismissed the We affirm prescribed FACTS It is that the undisputed plaintiff Christina Taylor facsimile transmission and the clerk 2008 for damages arising April 19 2007 on April 30 out of Thereafter the 2008 a office received the s motor or its face The timely fax filed petition because on no evidence transmission fees objection of prescription alleging on on plaintiffs original signed petition Fabricators and Roderick Lacombe filed prescribed filing a the clerk of court 11 never of the was on filed plaintiffs The defendants plaintiffs petition was Bayou clearly that the interrupted prescription and acknowledged receipt of the 2 11 peremptory exception raising the that the 2008 by April plaintiff opposed the exception arguing April suit vehicle accident that occurred The record contains payment of applicable filing filed that facsimile transmission the five and paying A the required fees never began hearing heard but no clerk s held was evidence acknowledged that days after day time period for forwarding the original petition the was of court introduced At the the trial sent court fees had not been not been undeniably It was s was not and at her cost failure to within five sent received the undisputed plaintiff s case filed and the fees was by the applicable clerk that the clerk The were not of the the paid within the the clerk of court was plaintiff appealed arguing acknowledge receipt because prescribed receipt of the facsimile transmission The plaintiff s suit court plaintiff paid within five days after the statutorily required five day time period after prejudice for was plaintiff a receipt of the transmission After the hearing held that the original petition argument plaintiff further acknowledged that received the facsimile transmission never where hearing counsel the facsimile transmission had been office Counsel for court issue prescription original signed petition had filing and transmission of the on s undisputed dismissed with that the clerk of timely fax filed petition did not negate the facsimile transmission DISCUSSION Louisiana Revised Statute 13 850 in provides the following pertinent part A paper in a civil action may be filed with the court by facsimile transmission Filing shall be deemed complete Any at the time that the receipt of transmission has been transmitted to the sender the clerk of court force and effect B facsimile transmission is received and Within five as The facsimile when filed has the the by same original days exclusive of legal holidays clerk of court has received the transmission filing a the document shall forward the clerk 3 after the the following party to the original signed document The applicable filing fee if any 1 The 2 3 A transmission fee of five dollars C If the party fails to comply with the requirements of Subsection B the facsimile filing shall have no force or effect Emphasis added The Louisiana supreme court in this forward statute to of place recently interpreted the mean Restaurant LSA R S 13 850 08 1667 Catering La Hunter 17 3 09 Morton v 6 3d So supreme court further held that under the statute at issue conditional once an a facsimile of original document fact to be In this case of to the the parties clerk s Clerk do not were 156 filing is The merely The date when must Office in the time s Office is establish document and by required set forth a a fees in the on the plaintiff s original signed the clerk of court within five 13 850C the facsimile to send the mandated five days interrupted prescription only R S 13 850 had been followed App dispute and the hearing transcript reveals that the have La original not sent to to LSA R S plaintiff failed statutorily 1736 s sender Seafood days undisputed receipt of the plaintiff s fax filed petition Therefore pursuant the that the prescription clearly petition and required fees because the The s sparse Emphasis added Id of the a document is transmitted sender of the evidence have been forwarded exception 152 and fees have been forwarded to the Clerk proved by the preponderance statute a the sending of the document towards overruling in part much of the destination thereby jurisprudence analyzing shall meaning of the 3 Cir 5 5 99 had required documents and The plaintiff s fax filed if all of the other Antoine v 1259 s no effect fees within petition could requirements McDonald 734 So 2d 1257 4 filing of LSA Restaurant 98 overruled on other grounds by Hunter 6 So 3d at 155 nA argument that the clerk of transmission somehow and 7 04 filing by the as at Id The filing issue in this on that office on of the fax for complete a s office 11 date same as an facts and the clerk 2008 The absence of not could have a change are s App require that certain time is carried purposes upon disputed by out receipt in this facsimile transmission Antoine 734 So 2d plaintiff failed at 1259 to meet the forwarding the that the case not are these facts force plaintiff s her of action for fax on cause filings been we mandatory requirements ofLSA R S met of the clerk s or effect if the 5 office receipt See find that the 13 850B original signed petition and required filing days s Therefore the interrupted prescription Louisiana Revised Statute 13 850C no receipt by the clerk However like the trial court transmission fees within five the plaintiff fax filed office received the transmission transmission remaining statutory requirements filing has statute a La acknowledgment and proof of the time of had the fax of the fax filed receipt of the facsimile by the clerk of court undisputed plaintiff does petition within which is not petition filed filing prescription fax filed not days case April to the of the facsimile receipt The statute does not timing and proof of the In summary the petition v The purpose of the the clerk plaintiff serves only the fax 1185 1186 receipt However the transmission of to plaintiffs Gabus 04 153 734 So 2d at 1260 of the transmission the five 877 So 2d 1183 to the fax looking a to Co of New York the clerk of court transmit Antoine to issue failure s merit required fees within See Northern Ins petition no negated the plaintiff s responsibility of sending the original signed petition 3 Cir court We find by and of the fax expressly provides that a requirements of Subsection B are not complied April court with The only 30 2008 which after prescriptive the prescription required court on the an original petition is plaintiff acknowledges date for the with the trial record of five plaintiff s that the plaintiff s the defendant s peremptory time day cause plaintiff s claim forwarded was period and of action fax filed the one to the after the Accordingly petition Thus the trial exception raising the court did not filed on clerk of one we year agree interrupt correctly granted objection of prescription CONCLUSION F or these costs of this reasons appeal are the judgment of the assessed to the trial court is affirmed All plaintiff appellant Christina Taylor AFFIRMED 6
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