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