Smith v. Transp. Servs. Co. of Ill.

• Decision Date: 31 October 2013
• Docket Number: No. 2013–C–1023.,2013–C–1023.
• Citation: 124 So.3d 48
• Parties: Tenesha SMITH, et al. v. TRANSPORT SERVICES COMPANY OF ILLINOIS, et al.
• Court: Court of Appeal of Louisiana — District of US

124 So.3d 48

Tenesha SMITH, et al.

v.TRANSPORT SERVICES COMPANY OF ILLINOIS, et al.

No. 2013–C–1023.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 27, 2013.

Opinion on Grant of Rehearing Oct. 31, 2013.

John E. Galloway, Andrea L. Albert, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, J. Warren Gardner, Jr., Mary Beth Meyer, Christovich & Kearney, LLP, New Orleans, LA, for Relators.

Judith A. DeFraites, New Orleans, LA, Vernon P. Thomas, New Orleans, LA, for Respondents.

(Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).

MAX N. TOBIAS, JR., Judge.

[4 Cir. 1]Transport Services Co. of Illinois and its insurer, Protective Insurance Company (collectively, “Transport”), have filed the instant writ application seeking supervisory review of the trial court's denial of their peremptory exception of prescription. Finding merit in Transport's arguments, we grant the writ application, reverse the judgment of the trial court, and dismiss this case with prejudice.

This lawsuit arises from an alleged chemical spill that occurred on 7 August 2002 in New Orleans, Louisiana. The first lawsuit was filed on 7 August 2003 by Shirley Fulford, et al. in the Civil District Court for the Parish of Orleans as a class action; a second lawsuit, also a class action, was filed the same day and in the same court by Yolanda Abram (collectively referred to as the “Fulford/Abram plaintiffs”).

Transport timely removed the Fulford and Abram lawsuits to the United States District Court for the Eastern District of Louisiana, where they were consolidated. Following a 1 June 2004 hearing, the plaintiffs' motion for class certification was denied, with the order entered into the record on the same day. The Fulford/Abram plaintiffs filed a motion for reconsideration that was also [4 Cir. 2]denied. The Fulford/Abram plaintiffs appealed to the United States Fifth Circuit, but subsequently dismissed their appeal.¹

Tenesha Smith, Melvin Porter, and Wallace Dixon filed this lawsuit on 8 June 2004, making the same class action allegations as contained in the Fulford/Abram lawsuits; they were not named plaintiffs in the two prior suits. The trial court stayed the class action claims pending resolution of the federal case, but permitted the named plaintiffs to file an amended petition adding five hundred new plaintiffs to the lawsuit on 4 October 2004.

Once the stay was lifted, Transport filed a peremptory exception of prescription, arguing that the claims of all new plaintiffs had prescribed. The exception was denied by the trial court, stating that the earlier-filed class actions then pending in federal court interrupted prescription for the new plaintiffs. Transport applied for supervisory writs to this court and the Supreme Court, both of which were denied.

The issue of liability alone was tried to the court in December 2009. By agreement of the parties and the trial court, only the issues of liability and general causation were tried with regard to eleven plaintiffs. Nevertheless, the court ruled in favor of the named plaintiffs and entered judgment in favor of all plaintiffs, despite the agreement to the contrary. The trial court certified that partial judgment as final pursuant to La. C.C.P. art. 1915 A(5) so an immediate appeal could be taken by Transport before the issue of damages was addressed.

Transport appealed the issues of liability and general causation, as well as the prior interlocutory ruling denying their exception of prescription. This court [4 Cir. 3]affirmed the court's ruling on prescription, reversed the trial court's determination of causation, and remanded the matter for further proceedings.² Transport's supervisory writ application filed with the Supreme Court was denied. See Smith v. Transport Services Co., 10–1238 (La.App. 4 Cir. 5/4/11), 67 So.3d 487,writ denied,11–1147 (La.9/16/11), 69 So.3d 1146.

On 2 November 2012, the Supreme Court issued its opinion in Quinn v. Louisiana Citizens Property Ins. Corp., 12–0152 (La.11/2/12), 118 So.3d 1011,reh'g denied, (La.1/25/13). Simply put, the Quinn Court held that when the Louisiana legislature adopted La. C.C.P. art. 596, it had rejected “cross-jurisdictional tolling” in class action proceedings; thus, the Court held that prescription was not suspended under article 596 as to the Quinn plaintiffs' class action claims by the timely filing of a class action proceeding in federal court arising from the same facts.³Id. at p. 19, 118 So.3d at 1022–23.

We addressed a similar issue in Ansardi v. Louisiana Citizens' Property Ins. Corp., 11–1717, 12–0166 (La.App. 4 Cir. 3/1/13), 111 So.3d 460,writ denied,13–0697, 13–0698 (La.5/17/13), 118 So.3d 380, wherein we determined en banc that [4 Cir. 4]the reasoning of Quinn also applied to a class action initially filed in a Louisiana state court and later removed to federal court. We held that applying Quinn meant that even a class action filed in state court and later removed to, and pending in, federal court had no effect on the tolling of the prescriptive period. Id. at p. 10, 111 So.3d at 466–67.

Following the Quinn and Ansardi decisions, Transport reurged its exception of prescription arguing that, under these cases, the Smith plaintiffs' individual and representative claims herein, filed more than one year after the accident, were prescribed on the face of the petition and should be dismissed. The trial court denied the exception, finding that its earlier denial of the exception precluded consideration of the present exception pursuant to the doctrine of res judicata. This timely writ followed.

In order to be accorded res judicata effect, a judgment must be “final.” Burguieres v. Pollingue, 02–1385 (La.2/25/03), 843 So.2d 1049. Pursuant to La. C.C.P. art. 1841, a judgment that determines only preliminary matters in the course of the action is an interlocutory judgment, whereas a judgment that determines the merits in whole or in part is a final judgment. Although the trial court certified its earlier partial judgment as final, an exception of prescription is a procedural matter that does not address the merits of the pending case.⁴ Based upon the procedural [4 Cir. 5]posture of the case when we previously determined that prescription had not lapsed, the denial of the exception was merely interlocutory, even when coupled with the appeal of a partial final judgment (on the issue of liability), and it had no effect on the pending litigation. That is to say, only if the exception of prescription had been maintained and dismissed the plaintiffs' case with prejudice would res judicata have applied. Therefore, res judicata cannot apply under these facts.

In Landry v. Blaise, 02–0822, pp. 2–3 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664, we stated:

[R]es judicata is designed to prevent re-litigation of issues “in any subsequent action.” LSA–R.S. 13:4231. Res judicata protects against a “second action.” Comment (a) to LSA–R.S. 13:4231. This doctrine does not bar a party in the same action from re-urging an exception.

A peremptory exception may be urged at any time. LSA–C. C.P. art. 928. A party may re-urge a peremptory exception after a denial of the exception. [Citations omitted; emphasis supplied.]

We find that the trial court erred by denying Transport's exception of prescription based on res judicata.

[4 Cir. 6]The plaintiffs also argue that the exception is barred by the doctrines of “law of the case” and “ contra non valentem agree nulla currit ” and that to apply Quinn and Ansardi retroactively to this case deprives them of substantive and procedural due process. We reject these arguments. Because of “intervening case law,” law of the case is not applicable. In KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11–0598, pp. 7–8 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211–12, we stated:

The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. Day v. Campbell–Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal. Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue. Id., 278 So.2d at 84.

The law of the case doctrine “may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999). Therefore, the law of the case doctrine is the proper procedural principle, as opposed to res judicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Posey v. Smith, 453 So.2d 1016 (La.App. 3 Cir.1984). The policy reasons behind the doctrine include: (i) avoiding re-litigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell–Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (1971).

[4 Cir. 7]However, “[u]nlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly.” Daigre v. International Truck and Engine...