Latashia Borden individually and on behalf of her husband, Kenneth Ancar v. United Specialty Insurance Co., W.B. Company, Inc. and Brandon Bonvillain

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

LATASHIA BORDEN INDIVIDUALLY AND ON NO. 2020 CW 1286
BEHALF OF HER DECEASED HUSBAND, KENNETH PAGE 1 OF 2
ANCAR

VERSUS

UNITED SPECIALTY INSURANCE CO., W. B.

COMPANY, INC. AND BRANDON BONVILLIAN

CONSOLIDATED WITH

KENNETH RAY ANCAR, JR., KEINA RAI

TOMPKINS, AND KRYSTAL RENEE ANCAR

VERSUS

QEO INSURANCE GROUP, BRANDON J.

BONVILLAIN, W. B. COMPANY, INC., WILLIE
BONVILAIN, JR. AND JOSEPHINE TRAHAN
BONVILLAIN
FEB 1 8 2021

In Re: QEO Group, LLC, applying for supervisory writs, 17th
Judicial District Court, Parish of Lafourche, No.

132303 c/ w 132560.

BEFORE: WHIPPLE, C. J., WELCH AND CHUTZ, JJ.

WRIT DENIED.

WRC

Whipple, C. J., concurs. 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.

Welch, J., dissents. If an application to dismiss

plaintiff' s action is made after the defendant makes an

appearance of record, the district court may refuse to grant the
judgment of dismissal except with prejudice. La. Code Civ. P.
art. 1671. This decision is in the vast discretion of the
district court. See La. Code Civ. P. art. 1671 cmt. ( b). An

abuse of discretion has been found in dismissals without

prejudice: ( 1) where substantive rights of the defendant would

be lost; or ( 2) where the defendant would be deprived of a just
defense. Kennison v. BLR Construction Companies, L. L. C., 2007-

743 ( La. App. 3d Cir. 12/ 5/ 07), 971 So. 2d 1232, 1234. In

opposition to QEO Group, LLC' s motion to dismiss, Louisiana

Companies argued that a dismissal without prejudice would allow

QEO Group, LLC to file another case in another forum, which

would create legal issues as to whether depositions and/ or

filings in this case could be used in the new forum. Louisiana

Companies also argued it " may be faced with having to engage in
depositions/ filings that could in large part duplicate what

has been accomplished in this litigation." However,
already
ordinary inconveniences of double litigation do not equate to a

loss of a substantive right or a deprivation of a just defense,
and the fact that the plaintiff intends to institute, or in fact
institutes, another suit on the same cause of action is not a

sufficient ground for a denial of the plaintiff' s motion to

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

NO. 2020 CW 1286
PAGE 2 OF 2

discontinue an action. Sizemore v. Reilly -Benton Company, Inc.,

2018- 0826 ( La. App. 4th Cir. 2/ 6/ 19), 265 So. 3d 41, 45, citing
27 C. J. S. Dismissal and Nonsuit § 27. Louisiana Companies did

not point to any substantive right or defense that would be lost
as the result of dismissing QEO Group, LLC' s claims against it;
therefore, I find the district court abused its discretion in

denying the motion to dismiss and would grant the writ

application, dismissing all claims asserted by QEO Group, LLC

against Louisiana Companies without prejudice.

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY CLERK OF COURT
FOR THE COURT