The Louisiana Fifth Circuit Court of Appeal recently reaffirmed that a fax-filed version of a pleading must be absolutely identical to the hard-copy version later filed with the court pursuant to the 2016 amendments to La. R.S. § 13:850. In Smith v. St. Charles Par. Pub. Sch., 17-475 (La. App. 5 Cir. 5/1/18) the Court held that even a one-character typographical difference is enough to render a fax-filing void and without effect.
Smith sued St. Charles Parish Public Schools for damages sustained as a result of an October 6, 2015 zip-line accident involving his minor child. One day before the first anniversary of the accident, plaintiff fax-filed a petition that stated that the date of the accident was “October 6, 2005.” The original hard-copy version of the pleading, which was timely filed within seven days of the fax in accordance with La. R.S. § 13:850(B), stated the date of the accident was “October 6, 2015.” Plaintiff’s counsel admitted that the change was made to correct the typographical error. Upon defendant’s prescription exception, the district court found that the hard copy violated La. R.S. § 13:850(B)(1) because it was not “identical to the facsimile filing.” The faxed version was rendered without effect and the subsequent hard copy was untimely, as it had been filed more than one year after the date of the accident. The Fifth Circuit Court of Appeal agreed and affirmed the dismissal of plaintiff’s suit.
The Louisiana Supreme Court has held that prescriptive statutes are “designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, [but] are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period.” Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990) citing Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La.1985). At first blush, it might sound like the Smith panel ran afoul of this precedent. A close analysis instead reveals that the Smith panel impliedly held that plaintiff made the “non-prejudicial mistake” in a fax—not a “filing” within the limitations period—because the statute rendered the fax null, void, and without effect before it could become a “filing.”
In light of this ruling, practitioners should correct pleading errors via formal amendment only after a fax-filing has been perfected via delivery of an identical hard-copy document.
— Mark E. Best