March 26, 2025|Publications
March 26, 2025 | Louisiana Court of Appeal, Third Circuit | Published Opinion
Executive Summary
In a published decision, Judge Sharon Darville Wilson of the Louisiana Court of Appeal, Third Circuit, affirmed the dismissal of a personal injury suit brought by a trampoline park patron who failed to identify the correct franchise entity before the expiration of the state’s one-year prescriptive period. The plaintiff, Barrynee Moore, initially sued “Sky Zone” generically and unnamed “ABC Corporation” and “XYZ Insurance Company,” only later attempting to substitute Drastic Air Lafayette, LLC—the franchisee operating the local Sky Zone park. The court held that Moore’s amended petition did not “relate back” to her original filing and that the claim was prescribed as a matter of law. The decision illustrates how precise corporate identification and clear franchise separation can provide a powerful procedural defense when plaintiffs mistakenly sue the brand rather than the actual franchisee.
Relevant Background
On July 9, 2022, Barrynee Moore visited a Sky Zone trampoline park in Lafayette, Louisiana, where she allegedly sustained injuries after jumping into a foam pit that she claimed lacked proper supervision and safety warnings. Nearly a year later, on July 7, 2023, she filed suit against “SKYZONE,” “ABC Corporation,” and “XYZ Insurance Company,” alleging negligence and asserting that the named entities were jointly and severally liable for her injuries. The complaint described “SKYZONE” as a business corporation “authorized to do and currently doing business in the State of Louisiana,” but Moore did not specify which Sky Zone entity owned or operated the Lafayette location.
Two weeks later, after the one-year prescriptive period under Louisiana Civil Code article 3492 had expired, Moore amended her petition to substitute “Drastic Air Lafayette, LLC” for the placeholder “ABC Corporation.” Drastic Air was the locally owned and operated Sky Zone franchisee. It responded by filing an exception of prescription, arguing that Moore’s claims were time-barred because it was not named as a defendant within one year of the accident and had received no timely notice of the suit.
At the hearing, Drastic Air’s owners, Chris and Kimberly Fudge, testified that they did not see the original petition until they were served with the first amended petition on July 21, 2023. They further testified that Drastic Air had no affiliation with any entity named “SKYZONE, a business corporation,” and that the Lafayette park’s door signage clearly identified it as an “independently owned and operated franchise.” Moore’s counsel argued that the franchise’s branding and use of the “@skyzone.com” email domain misled her about the correct defendant’s identity, but the trial court found the argument unavailing and granted the exception of prescription.
Decision
The Louisiana Court of Appeal affirmed. Applying Louisiana Code of Civil Procedure article 1153 and the relation-back test articulated in Ray v. Alexandria Mall, 434 So.2d 1083, 1086–87 (La. 1983), the court explained that a substitution of parties relates back to the original filing only if four conditions are met: (1) the amended claim arises out of the same transaction or occurrence; (2) the substituted defendant had notice of the suit such that it will not be prejudiced; (3) the defendant knew or should have known that but for a mistake, it would have been named originally; and (4) the substituted party is not a wholly new or unrelated defendant.
The court concluded that the second and third elements were not satisfied. Drastic Air had no notice of the lawsuit within the prescriptive period, and there was no evidence that it knew or should have known Moore intended to sue it. The panel noted that “while Drastic Air may have had notice of Moore’s accident, this is not the same thing as notice of the institution of a lawsuit against it.” Moore v. Sky Zone, 408 So.3d 573, 580 (La. App. 3 Cir. 2025). The court further observed that the email communications and website printouts Moore relied upon were never introduced into evidence and therefore could not be considered on appeal, emphasizing that “documents attached to memoranda do not constitute evidence and cannot be considered as such.” Id. (quoting Denoux v. Vessel Mgmt. Servs., Inc., 983 So.2d 84, 88 (La. 2008)).
The court also rejected Moore’s invocation of the doctrine of contra non valentem, which can suspend prescription when a defendant’s conduct prevents a plaintiff from filing suit. Because the argument was not raised in the trial court and was based on documents excluded from evidence, it was not preserved for appellate review. Finally, the court reiterated that “reliance on misinformation, standing alone, does not satisfy the reasonable due diligence requirement” necessary to invoke contra non valentem. Id. at 582 (quoting Herman v. State Farm Mut. Auto. Ins. Co., 977 So.2d 41, 46 (La. App. 1 Cir. 2007)).
Looking Forward
While Moore v. Sky Zone turns on Louisiana’s strict procedural rules, it carries broader implications for franchisors and franchisees nationwide. The case highlights how plaintiffs often confuse franchisors, franchisees, and affiliated entities when alleging tort or negligence claims, especially when franchise branding dominates the customer experience. Here, the local operator’s use of Sky Zone’s national trademarks and branded email accounts did not override the legal separateness of the franchisee, and the court refused to extend procedural leniency to a plaintiff who failed to identify the correct entity.
For franchisors, the decision underscores the importance of maintaining clear “independently owned and operated” signage, consistent use of legal entity names in contracts, websites, and correspondence, and prompt responses to pre-suit communications. These measures reduce the risk of confusion and help ensure that, if a plaintiff sues the wrong entity, the claim may fail on procedural grounds before any merits litigation occurs.
Moore ultimately demonstrates that entity precision remains a franchisor’s first line of defense. The court’s strict application of prescription and relation-back principles preserved the procedural integrity of Louisiana’s filing deadlines while illustrating the real-world benefits of strong franchise brand separation.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Shareholder at Buchalter APC and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
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