Daniel P. Martin v. DQSI, LLC, Shelly S. Stubbs and Michael A. Stubbs ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
DANIEL P. MARTIN NO. 2021 CW 0461
VERSUS
DQSI, LLC, SHELLY S. STUBBS JULY 20, 2021
AND MICHAEL A. STUBBS
In Re: Daniel P. Martin, applying for supervisory writs, 22nd
Judicial District Court, Parish St. No.
of Tammany,
2016- 15179.
BEFORE: WHIPPLE, C. J., WELCH, THERIOT, WOLFE AND HESTER, JJ.
WRIT GRANTED. The defendants, DQSI, LLC, Shelly S. Stubbs,
PhD., and Michael Stubbs, filed exceptions of res judicata and
preclusion by judgment, arguing plaintiff, Daniel. P. Martin' s,
claims in this matter are barred based on the dismissal of his
prior lawsuit, captioned Daniel P. Martin v. Shelly Stubbs and
DQSI, LLC, 22nd Judicial District Court, Parish St.
of
Tammany,
trial court docket no. 2012- 15262, Div. " C" ( hereinafter " 2012
suit"). On March 15, 2021, the trial court signed a written
judgment partially granting defendants' exceptions of res
judicata and preclusion
by judgment, and
dismissing with
prejudice plaintiff' s claims, except his breach of contract and
derivative action claims alleged to have occurred after the
March 27, 2013 dismissal of plaintiff' s 2012 suit against
defendants. However, the March 27, 2013 judgment dismissed
plaintiff' s 2012 suit " without prejudice." As provided in La.
Code Civ. P. art. 1673, "[ a] judgment of dismissal without
prejudice shall not constitute a bar to another suit on the same
cause of action." See Batson v. Cherokee Beach & Campgrounds,
Inc., 530 So. 2d 1128, 1129 ( La. 1988). Accordingly, the portion
of the trial court' s March 15, 2021 judgment in part,
granting,
defendants' exceptions of res judicata and preclusion by
judgment is reversed. The exceptions of res judicata and
preclusion by judgment filed by defendants are denied.
VGW
JEW
MRT
CHH
Wolfe, J.,
dissents and would deny the writ as the criteria
set forth in Herlitz Construction Co., Inc. v. Hotel Investors
of New Iberia, Inc., 396 So. 2d 878 ( La. 1981) ( per curiam) are
not met.
COURT OF APPEAL, FIRST CIRCUIT
DEPUTY CLE K F COURT
FOR THE COURT