From Casetext: Smarter Legal Research

Marsh Engineering, Inc. v. Parker

Supreme Court of Louisiana
Sep 27, 1996
680 So. 2d 637 (La. 1996)

Opinion

No. 96-C-1434

September 27, 1996

IN RE: Parker, Ernest L.; — Defendant(s); Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Third Circuit, Number CA94-1129; Parish of Lafayette 15th Judicial District Court Div. "B" Number 91-5553-1A.


Denied.

BJJ

WFM

CDK

JPV

EJB

CALOGERO, C.J. not on panel; recused.

WATSON, J. would grant the writ.

LEMMON, J. concurs with reasons.


I concur in the denial of certiorari, but note that the denial has no res judicata effect in this court on the issue of prescription. Although the court of appeal "ruled" that La.Rev.Stat. 9:5605 does not apply retroactively, the judgment of the court of appeal merely overruled an exception of prescription and thus did not determine the merits of the case in whole or in part.

A final judgment is one that determines the merits of the case in whole or in part. La. Code Civ.Proc. art. 1841. Only a final judgment (as opposed to interlocutory) acquires the effect of res judicata. La.Rev.Stat. 13:4231.

More importantly, the court of appeal remanded the case to the district court for trial of the other issues, and this court invariably declines to exercise supervisory jurisdiction under such circumstances. Therefore, our writ denial of an application from a partial judgment remanding the case for trial of other issues means nothing more than a refusal to review the prescription issue at this time. Certainly the writ denial does not preclude this court's review of this issue in a future certiorari application after the district court's judgment on the merits on remand and the intermediate court's judgment on appeal after remand.

If defendant had not sought certiorari now, the result should be the same. If a writ denial has no res judicata effect, a failure to file a writ destined for denial should be treated likewise.

The "law of the case" doctrine may apply as to the prescription issue in the intermediate court on an appeal after the district court on remand renders a judgment deciding the entirety of the merits. However, while an appellate court has the power to revisit an issue when the "law of the case" doctrine applies, no court has the power to change a judgment that has become res judicata.


Summaries of

Marsh Engineering, Inc. v. Parker

Supreme Court of Louisiana
Sep 27, 1996
680 So. 2d 637 (La. 1996)
Case details for

Marsh Engineering, Inc. v. Parker

Case Details

Full title:MARSH ENGINEERING, INC., ET AL v. ERNEST L. PARKER, ET AL

Court:Supreme Court of Louisiana

Date published: Sep 27, 1996

Citations

680 So. 2d 637 (La. 1996)

Citing Cases

Vines v. University of Louisiana at Monroe

Under Louisiana law, the overruling of a peremptory exception is an interlocutory judgment and thus not…