Opinion
NO. 2016 CW 0786
06-24-2016
JOSEPH DAVID WEIS, III, KAREN WEIS NATION, DAVID ARTHUR WEIS, DAVID JOSEPH WEIS, ALEXANDRE BAYMA WEIS AND THEREZA BAYMA WEIS, INDIVIDUALLY AND ON BEHALF OF THE DECEDENT, JOSEPH WEIS v. DSM COPOLYMER, INC., ET AL
In Re: DSM Copolymer, Inc., applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 640487. BEFORE: WHIPPLE, C.J., GUIDRY AND PETTIGREW, JJ.
REQUEST FOR STAY DENIED. WRIT DENIED. This Court declines to exercise its supervisory jurisdiction. 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.
JTP
VGW
Guidry, J., concurs in part and dissents in part. I concur with the denial of the request for stay of these proceedings, but dissent and would reverse the May 27, 2016 judgment of the district court which denied the motion for leave to file cross claim and third party demand filed by defendant, DSM Copolymer, Inc. La. Code Civ. P. art. 1033 provides that, once an answer has been filed, an incidental demand may be filed with leave of court if it will not retard the progress of the principal action. The articles of the Code of Civil Procedure are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. La. Code Civ. P. art. 5051. The filing of the cross claim against persons or entities who are already parties in this action should certainly not retard the progress of this action. As to the filing of the third party demand, which would add new parties to this action, there has been no showing that this filing would retard the progress of this action. In the interest of judicial efficiency, to avoid multiple lawsuits, and wherever possible, while consistent with orderly procedure and due regard to the rights of all litigants involved, it is preferable to dispose of all phases of an action in a single proceeding. Breaux v. Texas and Pacific Railway Company, 14 7 So.2d 693 (La. App. 1st Cir. 1962). La. Code Civ. P. art. 1038 provides that the court may order separate trials of the principal and incidental actions. Courts have found such demands properly severed when a third party demand could possibly retard the trial. See Benton v. Clay, 48,245 (La. App. 2d Cir. 8/7/13), 123 So.3d 212; Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La. App. 3d Cir. 1991); Madere v. Lennix, 535 So.2d 1290, 1292 (La. App. 5th Cir. 1988). Thus, I would find that the district court abused its discretion in denying the motion for leave to file cross claim and third party demand. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT