ANITA MERCADEL v. POPEYES FRIED CHICKEN OF LOUISIANA INC AND ABC INSURANCE COMPANY (2026)

This appeal arises from the trial court's May 22, 2025 judgment granting an exception of prescription on a defamation case. The plaintiff, Anita Mercadel (“Mercadel”), alleges that she was wrongfully accused of stealing chicken from the franchised restaurant that she managed. For the reasons that follow, the judgment of the trial court is affirmed.

Facts alleged

Mercadel alleges that on or about May 24, 2022, “Defendant's management” noticed an inventory shortage at her restaurant and fired her summarily. She alleges that she was ordered to leave the building immediately without an opportunity to explain any discrepancy. Mercadel's petition explains the discrepancy, alleging that her restaurant and other franchised restaurants exchanged chicken among themselves in the regular course of business to balance business demands with inventory. Mercadel alleged that after her dismissal, “[m]anagement conducted meetings wherein they told the staff and other managers that [she] had stolen chicken from inventory.” Plaintiff alleges that she was humiliated as word of the alleged theft spread throughout the workforce and the restaurant community city-wide. The petition alleges further that the false accusations made her unemployable as a manager at other Popeye's branded restaurants.

Proceedings Below

Mercadel commenced this case by filing suit on May 23, 2023. In the suit, she named “Popeye's Fried Chicken of Louisiana, Inc.” (“La. Popeye's”) as the defendant. She served Alvin Copeland, Jr. (“Copeland”), who is named as the agent for service of process for that entity. The record, and Mercadel's brief before this court, indicate that many attempts were required to successfully serve Copeland. It appears from the record that the difficulty in serving Copeland accounts for the delay in service until May 9, 2024, nearly a year after the filing date. Shortly after Copeland was served, Mercadel's counsel received a fax from Erin Kielly, who identified herself as Director of Risk Management for Al Copeland Investments, Restaurant Division. The fax, dated May 13, 2024, advised counsel that Mercadel's employer was not La. Popeye's but was Restaurant Brands International US Services, L.L.C. (“RBI”). RBI is domiciled in Florida. Popeye's Fried Chicken of Louisiana, Inc. is a Louisiana corporation.¹ RBI argues that there is no overlapping ownership or management that would suggest that service on La. Popeye's would give actual notice of the pendency of the action to RBI. An affidavit attached to RBI's exception of prescription states that RBI did not receive notice of the lawsuit until it received the citation and petition on July 22, 2024.

In a supplemental memorandum, Mercadel argues that RBI withheld information regarding her employer. The memorandum states that counsel for RBI advised that Mercadel's actual employer was Popeye's Louisiana Kitchen, Inc., not RBI. The memorandum also adds clarity to the specifics of her termination and her efforts to find similar employment post-termination. Mercadel argues, in this court, that the trial court erred in failing to consider the supplemental memorandum.

After argument, the trial court rendered judgment from the bench in favor of RBI followed by a written judgment dated May 22, 2025.

Assignments of error

Mercadel makes the following assignments of error: (1) The trial court erred in granting the Exception of Prescription where the relation-back doctrine applies; (2) The trial court erred in failing to construe prescription strictly against dismissal; and (3) The trial court erred in failing to apply the identity-of-interest analysis governing related corporate defendants.²

Discussion

The errors alleged by Mercadel are all errors of law and are reviewed under the de novo standard. Wright v. Touro Infirmary, 2021-0324, p. 4 (La. App. 4 Cir. 7/7/21), 324 So.3d 699, 702.

There is no evidence in the record that the trial court failed to construe RBI's prescription arguments strictly disfavoring prescription as required by Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, and the general body of law on the topic. While the alleged error is not supported by the record below, we address it here solely for the purpose of acknowledging its application in this court's decision.

Mercadel's primary argument is that her amended petition naming RBI as the proper defendant should relate back to her original, timely-filed petition. There is no doubt that the amendment was filed after the one-year prescriptive date of the allegedly defamatory accusations. An amended petition changing the identity of the defendant relates back to the original filing only when (1) the claim arises out of the same occurrence, (2) the substituted defendant had actual notice such that it would not be prejudiced, and (3) the substituted defendant knew or should have known that the action would have been brought against it except for the plaintiff's mistake concerning the identity of the proper party. Ray v. Alexandria Mall, Through St. Paul Property and Liability Insurance, 434 So.2d 1083, 1085 (La. 1983). The claim made against RBI arises out of the same occurrence that was alleged against La. Popeye's. That is not contested. However, there is no evidence of actual notice to RBI or that RBI should have known of the existence of Mercadel's lawsuit. RBI is a Florida corporation that has no obvious ties to La. Popeye's. Copeland, who was served by Mercadel, does not have any apparent contact with RBI nor has Mercadel argued that Copeland has any legal or factual relationship with RBI. The lack of a factual basis on which this court might find an identity of interest between La. Popeye's and RBI dictates that the amendment substituting RBI as the party defendant cannot relate back to the date of the original filing of Mercadel's lawsuit.

Conclusion

The applicable law and the facts do not permit the amended petition to relate back to the filing date of the original lawsuit. Therefore, the judgment of the trial court granting RBI's exception of prescription is affirmed.

AFFIRMED.

FOOTNOTES

1.   La. Popeye's is a dissolved corporation according to records of the Louisiana Secretary of State that are attached to RBI's trial court memorandum in support of its exception.

2.   Mercadel also argues that the trial court erred by failing to consider her supplemental memorandum and by failing to recognize that opposing counsel may have violated rules of professional conduct. Neither of these arguments have merit, nor are they relevant to the analysis of this case.

Chief Judge Roland L. Belsome

HERMAN, J., CONCURS IN RESULT. LOBRANO, J., DISSENTS WITH REASONS.