Author: Fabian H.C. Edwards

Technical Difficulties: Incomplete “Fax Filed” Petition Interrupts Prescription

Tim Berners-Lee, computer scientist and founder of the World Wide Web Consortium, famously stated, “We can’t blame the technology when we make mistakes.”  One Louisiana appellate court disagrees.

In Worm v. The Berry Barn, LLC, 20-1086 (La. App. 1 Cir. 10/21/21), the Louisiana First Circuit utilized a broad interpretation of Louisiana’s fax-filing statute, La. R.S. 13:850. In Worm, the plaintiff was injured in an accident on October 7, 2018.  Plaintiff’s counsel fax-filed the Petition to the Tangipahoa Parish Clerk of Court’s office on Friday, October 4, 2019.  The next Monday, the Clerk sent a “Fax Filing Confirmation” to Plaintiff’s counsel.  Plaintiff’s counsel filed the original Petition with the Clerk of Court on October 11, 2019.

Defendants filed an exception of prescription, arguing that the faxed Petition did not interrupt prescription because Plaintiff’s original Petition was not “identical” to the faxed Petition, as required by La. R.S. 13:850.  Defendants correctly pointed out that portions of the first and second pages of the fax filed Petition were “cut off … thereby eliminating some of the substance of plaintiff’s allegations.” Plaintiff opposed the exception, arguing that any error in the receipt or printing of the fax filed petition was attributable to the Clerk of Court and/or its fax machine.

The trial court recognized that the difference between the fax filed Petition and the original Petition was “ultimately the result of, we think a machine error.”  Nevertheless, the court sustained defendants’ exception and dismissed plaintiff’s claims as prescribed.  Plaintiff appealed.

The First Circuit Court of Appeals noted that Louisiana’s prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished.  The court held, “There is no dispute that the physical copies contained in the record show that the fax filed petition and the original petition are different.  However, the differences are due to missing as opposed to substantively different or altered portions of the petition.  … As reasoned by the trial court, the apparent error in receipt and printing of plaintiff’s fax filed petition by the Clerk of Court was attributable to ‘machine error …’”  The First Circuit held that the fax filed Petition interrupted prescription and reversed the decision of the trial court.

While the explicit language of La. R.S. 13:850 requires that a fax filed pleading be “identical” to the original pleading, the First Circuit’s decision in Worm suggests that the statute has at least some flexibility.  Although the plaintiff in Worm was able to “blame the technology,” the impact of the decision may ultimately be limited to its specific facts where the “machine error” was caused by the Clerk’s system.