Maddens Cable Service, Inc. v. Gator Wireline Services, Ltd.

• Decision Date: 27 May 1987
• Docket Number: No. CA,CA
• Citation: 509 So.2d 21
• Parties: MADDENS CABLE SERVICE, INC. v. GATOR WIRELINE SERVICES, LTD. 86 0310.
• Court: Court of Appeal of Louisiana — District of US

Page 21

509 So.2d 21

MADDENS CABLE SERVICE, INC. v. GATOR WIRELINE SERVICES, LTD.

No. CA 86 0310.

Court of Appeal of Louisiana, First Circuit.

May 27, 1987.

Robert P. Cuccia, Houma, for plaintiff and appellant--Maddens Cable Service, Inc.

Gator Wireline Services, Ltd., in pro per.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

LANIER, Judge.

This is a devolutive appeal from a trial court judgment which sustained a declinatory exception raising the objection of lis pendens and dismissed a suit on an open account without prejudice.

PRODEDURAL FACTS

On July 18, 1984, Maddens Cable Service, Inc. (Maddens) filed a suit (Maddens I) on an open account against Gator Wireline Services, Ltd. (Gator) seeking $29,685.25, legal interest from date of judicial demand, a reasonable attorney fee pursuant to La.R.S. 9:2781, and all costs. Gator responded on October 15, 1984, with an innominate exception which claimed the itemized statement of account and the invoices attached to Maddens I did not total the amount claimed, the dray receipts were not attached to the invoices and some of the attached invoices showed payment. ¹ The exception was heard on January 18, 1985, and on February 20, 1985, the trial court rendered a judgment which (1) ordered Maddens to amend its petition within five days to assert a claim for $15,644.75, and (2) ordered Gator to answer within twenty-five days thereafter. The amended petition was not filed. Instead, on March 26, 1985 Maddens moved for and obtained from the trial court an ex parte judgment which dismissed Maddens I without prejudice. ² This judgment was filed on March 27, 1985, and has a certificate indicating counsel for Maddens mailed a copy of the judgment to Gator's counsel on March 25. The record does not reflect that a notice of judgment was issued to Gator's counsel.

On April 9, 1985, counsel for Gator filed a pleading entitled "MOTION TO SET ASIDE ORDER OF DISMISSAL, OR IN THE ALTERNATIVE, MOTION TO DISMISS WITH PREJUDICE". ³ In this pleading, Gator asserted that on March 30, 1985, Gator's counsel received a copy of the signed motion to dismiss, that pursuant to La.C.C.P. art. 1671 a dismissal without prejudice was improper because of Gator's general appearance by exception and that the dismissal should be set aside, or, in the alternative, the dismissal should be with prejudice. This motion was heard on May 10, 1985.

On May 16, 1985, Maddens filed a second suit (Maddens II) on an open account against Gator, seeking $15,645.25, legal interest from date of judicial demand, a reasonable attorney fee pursuant to La.R.S. 9:2781, and all costs.

On June 3, 1985, the trial court rendered judgment in Maddens I, denying the motion to set aside the ex parte judgment of dismissal without prejudice. On June 18, 1985, Gator took a devolutive appeal in Maddens I.

On June 26, 1985, Gator filed a declinatory exception raising the objection of lis pendens in Maddens II. On July 19, 1985, the trial court heard the exception and overruled it. A formal judgment to that effect was filed on August 2, 1985. Gator sought a supervisory writ from this ruling, and, on September 30, 1985, this court granted the writ peremptorily and ordered the trial court to enter a judgment in favor of Gator dismissing Maddens II without prejudice. On October 30, 1985, the trial court signed a judgment to that effect. On December 19, 1985, Maddens took this devolutive appeal in Maddens II.

On May 15, 1986, this court affirmed the Maddens I trial court judgment of dismissal, 481 So.2d 1341. That judgment has now become definitive. (Apparently, there was no application for a rehearing or a supervisory writ to the Louisiana Supreme Court.)

On February 26, 1987, Maddens filed a motion in this court in Maddens II, contending it was entitled to a summary disposition ⁴ in its favor because of the definitive judgment in Maddens I.

OBJECTION OF LIS PENDENS

Maddens contends it was error to sustain the declinatory exception raising the objection of lis pendens in Maddens II.

The objection of lis pendens raised in a declinatory exception declines jurisdiction over a second suit where a prior suit is pending between the same parties, in the same capacities, on the same cause of action, and has the same object. La.C.C.P. arts. 923 and 925(3). La.C.C.P. art. 531 provides as follows:

When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all. [Emphasis added.]

The essence of Maddens' assignment of error is that Maddens I was no longer pending after it was dismissed in the trial court, and the effect of the judgment of dismissal was not suspended during the subsequent devolutive appeal. In the motion for summary disposition, Maddens further asserts that Maddens I is not presently pending because the judgment of dismissal therein is now definitive. ⁵ It is undisputed that Maddens I and II are between the same parties, in the same capacities, on the same cause of action and have the same object.

Generally, for purposes of La.C.C.P. art. 531, a suit is considered pending in a Louisiana court if it is being reviewed by an appellate court. Daul Insurance Agency, Inc. v. Parish of Jefferson, 447 So.2d 1208 (La.App. 5th Cir.1984); Scott v. Ware, 160 So.2d 237 (La.App. 2nd Cir.1984). Cf. State ex rel. Divens v. Johnson, 207 La. 23, 20 So.2d 412 (1944); Cardino v. Scroggins, 190 La. 53, 181 So. 810 (1938). This is based on the reasoning that a final judgment on the merits of the first suit will be res judicata in the second suit. Daul, 447 So.2d at 1210. In the instant case, however, the finality of the judgment of dismissal without prejudice of Maddens I does not render the merits of the disputes between the parties res judicata. For this reason, we decline to rule on the objection of lis pendens in the procedural and factual climate as it existed in the trial court, but will consider it in the procedural and factual...