Craig J. Biagas, Jr. v. French Press Coffeehouse of Chalmette, L.L.C. and Aldon Jacarus Smith

CRAIG J. BIAGAS, JR. * NO. 2024-C-0327

VERSUS *
COURT OF APPEAL
FRENCH PRESS *
COFFEEHOUSE OF FOURTH CIRCUIT
CHALMETTE, L.L.C. AND *
ALDON JACARUS SMITH STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 21-0761, DIVISION “C”
Honorable Kim C. Jones, Judge Presiding
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Joy Cossich Lobrano)

Branden Villavaso
Nicholas S. Linder
631 St. Charles Avenue
New Orleans, LA 70130

COUNSEL FOR RELATOR

Zara Zeringue
527 East Boston Street, Suite 201
Covington, LA 70433

COUNSEL FOR RESPONDENT

WRIT GRANTED IN PART;
DENIED IN PART
June 27, 2024

TFL
RLB
Relator, Aldon Jacarius Smith, seeks review of (1) the trial court’s May 7,
JCL
2024 judgment which “denied” as untimely Relator’s Notice of Intent to Seek

Supervisory Writ and Order Setting Reurn Date (“notice of intent’) from the trial

court’s written judgment of May 2, 2024; and (2) the underlying May 2, 2024

judgment which denied Relator’s Motion to Nullify Petitioner’s Second

Supplemental and Amending Petition for Damages and Exceptions of No Right of

Action, Insufficiency of Service of Process, and Res Judicata (“Motion to Nullify’)

filed on behalf of Respondent, Criag J. Biagas, Jr.

Upon review, we find that Relator timely filed his notice of intent within

five days of the trial court’s written judgment of May 2, 2024, which denied

Relator’s Motion to Nullify. Moreover, the trial court properly denied Relator’s

Motion to Nullify as Respondent was not barred from amending his original suit to

add Relator as a defendant. Accordingly, Relator’s writ application is granted in

part and denied in part.

ERROR NO: 1—Timeliness of Notice of Intent

We first consider the timeliness of Relator’s notice of intent.

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The trial court orally denied Relator’s Motion to Nullify on March 21, 2024,

and ordered Respondent’s counsel to “prepare a judgment and circulate and I will

sign same.” After the judgment was circulated, the trial court signed the written

judgment on May 2, 2024. Relator filed his notice of intent on May 7, 2024. The

trial court denied the notice as “untimely” and declined to set a return date.

Rule 4-3 of the Uniform Rules of the Courts of Appeal governs the time

period for settling return dates for supervisory writs, declaring in relevant part that

“[t]he return date in civil cases shall not exceed 30 days from the date of notice of

the judgment, as provided in La. C.C.P. art. 1914.” Louisiana Code of Civil

Procedure Article 1914(A) provides that that “the rendition an interlocutory

judgment in open court constitutes notice to all parties.” In conjunction therewith,

La. C.C.P. art. 1914(B) states that “[t]he interlocutory judgment shall be reduced to

writing if the court so orders . . . .”

In those matters where a written judgment is contemplated by all parties, the

date of the ruling at issue for purposes of Rule 4-3 is the date that notice of the

written judgment was submitted. See Kosmitis v. Bailey, 1996-1573, pp. 1-2 (La.

10/4/96), 680 So.2d 1167. Here, the trial court’s written judgment was signed on

May 2, 2024 and Relator filed his notice of intent on May 7, 2024—well within the

30 day period for timeliness as provided by Rule 4-3. Thus, Relator’s notice of

intent was timely. Accordingly, we grant Relator’s writ as it pertains to the trial

court’s denial of Relator’s notice of intent as untimely and its refusal to set a return

date.

Having determined that Relator’s notice of intent was timely, we now

review the merits of the trial court’s denial of Relator’s Motion to Nullify.

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ERROR NO: 2—MOTION TO NULLIFY

Procedural/Factual History

Respondent initially filed a petition for damages against Relator and French

Press Coffeehouse of Chalmette, L.L.C. (“French Press”) for damages for assault

and battery, negligent infliction of emotional distress, and intentional infliction of

emotional distress on May 18, 2021. Respondent timely served French Press.

However, Respondent withheld service on Relator based on an inability to obtain

Relator’s address. Respondent filed a first supplemental and amending petition on

March 28, 2022, which added employees of French Press as defendants and served

Relator with the original and supplemental petition in June 2023. Relator filed a

motion for involuntary dismissal based on Respondent’s failure to timely request

service of citation. The trial court sustained Relator’s exceptions and dismissed

Relator without prejudice from the lawsuit on November 17, 2023. The day before

the dismissal, Respondent obtained permission from the remaining defendant,

French Press, to file a second supplemental and amending petition for damages in

which he added the dismissed Relator as a defendant. Thereafter, Relator filed the

Motion to Nullify.

After a March 21, 2024 hearing, the trial court overruled Relator’s

exceptions and denied the Motion to Nullify. The trial court ruled:

It’s clear that under the Code of Civil Procedure Article 923 that any
judgment based on a dismissal on a dilatory exception should be
without prejudice. Without prejudice means that it merely retorts
progress of the action rather than defeats it. Reviewing Article 1151,
it’s clear that because French Press provided written consent it was
the adverse party at the time that the petition was amended, that the
petition could be amended and supplemented without leave of court,
that pursuant to 1673, in part, it’s clear that the judgment of dismissal
doesn’t bar the actions. It says another suit on the same cause of
action. But in reviewing the jurisprudence including jurisprudence in
the Fourth Circuit, they have said that they interpret the word

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“reinstitute” to mean reestablish. When there are other viable
defendants remaining in the original suit, that a new suit is not
required. And where a viable defendant remains in the existing
lawsuit, it’s unnecessary and, in fact, they say burdensome to file a
new suit which would then later be consolidated. So for judicial
efficiency purposes, I think it is proper and the court is going to deny
the Motion to Nullify based on those reasons.

Discussion

In Barracliff v. E. Jefferson Gen. Hosp., 583 So.2d 1200 (La. App. 4th Cir.

1991), this Court affirmed the judgment of a trial court which ruled that the

dismissal of a matter for lack of timely request for service was not a final judgment

that precluded amendment of a suit thereafter, emphasizing that pursuant to La.

C.C.P. art. 1673, an amended pending suit to join the same previously dismissed

defendants is not barred where a viable defendant remained in the original suit.

The Baracliff Court reasoned:

Louisiana Code of Civil Procedure Art. 1673 states that in pertinent
part that “... a judgment of dismissal without prejudice shall not
constitute a bar to another suit on the same cause of action.” The
Official Revision Comment notes that “(a) case dismissed without
prejudice can be reinstituted; the judgment is neither final or [sic]
definitive.” We interpret the word “reinstitute” to mean “reestablish”.
The wording “shall not constitute a bar to another suit” in LSA-C.C.P.
Art. 1673 does not necessarily mean that a pending suit amended to
join the same defendants shall be barred. Where there are no other
viable defendants remaining in the original suit, a new suit is
required. Louisiana C.C.P. Art. 933's general rule-that if a dilatory
exception pleading prematurity is sustained, the suit shall be
dismissed-is mandated where no co-defendant tortfeasors remain in
the original suit. However, where a viable defendant remains in an
existing lawsuit, it is an unnecessary and useless act to require
plaintiffs to file a new suit and then move to consolidate the cases,
warranting a wasteful, burdensome procedure. We find no prejudice
to the rights of the other parties in allowing plaintiffs to amend their
original petition to join additional defendants who have been
dismissed without prejudice when a viable defendant remains in an
existing lawsuit.

Barracliff, 573 So.2d at 1203.

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In this case, as in Barracliff, Relator was initially dismissed without

prejudice for lack of timely request for service. The dismissal was not a

final judgment. The original petition was not dismissed, and a viable

defendant, French Press, remained in the existing lawsuit. Thus, Respondent

was not barred from amending the original petition by adding Relator in his

second supplemental and amending petition.

Accordingly, finding no error in the trial court’s judgment, we deny

Relator’s writ application as it pertains to the denial of Relator’s Motion to

Nullify.

DECREE

Based on the forgoing reasons, we grant Relator’s writ, in part, which

denied Relator’s notice of intent as untimely and deny Relator writ, in part,

which sought relief from the trial court’s judgment which denied Relator’s

Motion to Nullify.

WRIT GRANTED IN PART;
DENIED IN PART

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