Appeals court suggests revising laws regarding when county clerks offices can turn off fax machines

By Karen Kidd | Apr 17, 2019

BATON ROUGE — A day late filing a lawsuit remains a day late, even when the clerk's office closes its office and shuts down its fax machine before the day is done, a state appeals court recently ruled in a lawsuit over a 2016 auto accident.

In its 11-page judgment rendered March 25, the Louisiana 1st Circuit Court of Appeal affirmed a lower court ruling from 2018, dismissing the lawsuit after it had been filed a day past the prescriptive period in the case.

Judge Page McClendon wrote the judgment on which Chief Judge Vanessa G. Whipple and Judge Toni M. Higginbotham concurred.

"In doing so, we recognize the inequity in the current law that allows clerks of court in Louisiana the discretion to implement electronic filing procedures that are not uniform," McClendon wrote. "Revision of the statutes for electronic filing procedures is needed to ensure uniformity across the state in order to eliminate the possibility that an attempt to fax file a petition at 4:57 p. m. will be unsuccessful, and, therefore, untimely, because the clerk's fax machine was turned off at 4:30 p. m."

The lawsuit would have been timely in other clerk's offices in Louisiana but not in Terrebonne Parish, the judgment said.  

"This is inequitable and unjust," McClendon wrote. "Nevertheless, we are constrained to follow the current law."

The lawsuit stems from a Dec. 13, 2016, auto accident in which Jacob Stevenson was driving a vehicle in which Jesse Stevenson and his minor son, Logan Stevenson, were passengers, according to the background portion of the appeals court's judgment. The Stevensons filed suit Dec. 14, 2017,  against the driver of the other vehicle in the accident, Anthony J. Leblanc Jr. and Leblanc's insurer, Progressive Security Insurance Company, after failed attempts to file the day prior.

The defendants raised objection of prescription because the filing had been a day late. The Stevensons opposed the objection "citing a series of unfortunate events as the cause of their inability to file the petition on the final day of the prescriptive period," the judgment said.

The Stevensons argued their current attorney didn't get their file from their previous attorney until the final day of the prescriptive period.

"As counsel was preparing the petition for filing, an electrical breaker tripped in her law office followed by a power surge," McClendon wrote. "This delayed counsel's ability to complete the petition prior to 4: 30 p.m., the close of the clerk of court's normal business hours."

The attorney tried several times to fax in the petition to Terrebonne Parish clerk of court on Dec. 13 "to no avail," McClendon wrote, adding that the clerk's office regularly turned off its fax machines at 4:30 p.m.

That apparently is no longer the procedure in the Terrebonne Parish clerk's office, where the civil processing department's fax machine "is operable 24/7," the clerk's website says.

The Stevensons argued their day-late filing didn't matter. The Stevensons said Progressive interrupted the prescription period when it acknowledged earlier in 2017 its obligation in the matter, including documents provided and requested by the insurance company to and from the Stevenson's prior attorney.

Terrebonne Parish 32nd Judicial District Court Judge Juan W. Pickett, in his decision handed down in April 2018, didn't agree. Picket found that the insurance company did not acknowledge an obligation allegedly owed to the Stevensons and granted the defense's exception, dismissing the lawsuit.

The Stevensons appealed, alleging the trial court had erred because they tried to timely file the petition before the end of the prescriptive period and that the defense had acknowledged its obligation. The Stevensons also argued that "the rules of procedure are not intended to be an end in themselves and there would be no injustice against the defendants by maintaining the action."

The appeals court did not find all portions of the Stevensons' appeal to be persuasive.

"The plaintiffs also argue that the purpose of the rules of prescription, i.e. avoiding prejudice to defendants by requiring them to defend a stale claim, is not advanced in this instance since the defendants were aware of the plaintiffs' claims and suit was filed the day after the prescriptive period expired," the judgment said. "We find this argument unpersuasive."

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