Ebony Holmes v. City of New Orleans, Sewerage and Water Board of New Orleans, Hard Rock Construction, LLC, Tidewater Constructors, LLC v. Keeler & Associates, Inc. and Kinsale Insurance Company

EBONY HOLMES * NO. 2024-CA-0269

VERSUS *
COURT OF APPEAL
CITY OF NEW ORLEANS, *
SEWERAGE AND WATER FOURTH CIRCUIT
BOARD OF NEW ORLEANS, *
HARD ROCK STATE OF LOUISIANA
CONSTRUCTION, LLC, *******
TIDEWATER
CONSTRUCTORS, LLC, V
KEELER & ASSOCIATES,
INC. AND KINSALE
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-07540, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Steven E. Psarellis
STEVEN E. PSARELLIS, APLC
3939 N. Causeway Blvd., Suite 100
Metairie, LA 70002

Gerald Wasserman
GERALD D. WASSERMAN, LLC
3939 North Causeway Boulevard, Suite 200
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

Brett W. Tweedel
Aldric C. Poirier, Jr.
BLUE WILLIAMS, L.L.P.
3421 North Causeway Boulevard, Suite 900
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED
September 26, 2024

RML

TGC

RDJ

This is a property damage case. Three of the defendants—Tidewater

Constructors, LLC (“Tidewater”); Hard Rock Construction, LLC (“Hard Rock”);

and V. Keeler & Associates, Inc. (“V. Keeler”)—filed prescription exceptions,

raising the same arguments. At three separate hearings, the trial court made the

same ruling—granted the prescription exception before it. Thereafter, the trial

court rendered three separate final judgments, one in each of defendant’s favor.

The following is the chronology of events that occurred:

• October 2023: The trial court granted Tidewater’s exception.1 Plaintiff—
Ebony Holmes (“Ms. Holmes”)—appealed that judgment to this Court
(2024-CA-0047).

• December 2023: While Ms. Holmes’ appeal of the judgment in Tidewater’s
favor was pending, Hard Rock’s exception was heard and granted. A
judgment was rendered on December 15, 2023 (the “December 2023
Judgment”).2 From the December 2023 Judgment, Ms. Holmes filed the
instant appeal (2024-CA-0269).

1 The trial court subsequently rendered a written judgment granting Tidewater’s exception on

May 14, 2024.
2 At the hearing on Hard Rock’s exception, Ms. Holmes’ attorney argued as follows:

Your Honor, the facts have not changed in the case. What we are requesting, since
there are four defendants in this matter, in the interest of judicial economy—we’ve
taken, actually, an appeal on the previous decision of this Court [granting

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• June 2024: The trial court rendered judgment in V. Keeler’s favor, granting
its prescription exception. Ms. Holmes’ appeal from that judgment in
V. Keeler’s favor has been lodged in this Court (2024-CA-0551). But, the
appeal of that separate judgment is not before us.

• July 2024: In Holmes v. City of New Orleans, 24-0047 (La. App. 4 Cir.
7/16/24), ___ So.3d ___, 2024 WL 3422500 (“Holmes One”), this Court
vacated the judgment in Tidewater’s favor and remanded for further
proceedings.3

Given this Court decided Holmes One after the appeal was lodged in this

case, we ordered the parties to show cause, in writing, why this appeal should not

be dismissed. In response, Hard Rock argued that this Court’s decision in Holmes

One was reached in error. Conversely, Ms. Holmes argued that the law of the case

doctrine applied here given that the underlying factual issues and applicable law

are identical to those presented in Holmes One. She further argued that this Court’s

decision in Holmes One should be equally applied to all parties since all the

Tidewater’s prescription exception]—and in the interest of judicial economy, so we
don’t keep filing appeals upon appeals, since we’re expecting the other two
defendants also to file, that we take this under advisement until the Court of Appeals
issues a ruling [on Tidewater’s pending appeal]. In other words, put a pause on this
until the Court of Appeals issues a ruling.

Hard Rock’s counsel, however, requested that the trial court rule on its exception. Granting the
request, the trial court issued the December Judgment, sustaining Hard Rock’s prescription
exception.
3 The factual and procedural background of this case is set forth in Holmes One and is not

relevant for deciding the narrow issue presented here of whether our prior ruling is law of the
case. This Court, in Holmes One, vacated the trial court’s judgment sustaining Tidewater’s
prescription exception and remanded for further proceeding. In so doing, this Court observed:

In the matter on appeal, the evidence required to resolve the exception of
prescription is so intertwined with the evidence required to prove the merits of
[Ms.] Holmes’ property damage claims against the public entities and respective
contractors that judicial economy is not served in adjudicating prescription at this
juncture. The district court abused its discretion in failing to refer the exception to
the merits. The judgment granting the exception of prescription must be vacated.

Holmes One, 24-0047, p. 10, ___ So.3d at ___, 2024 WL 3422500, *5.

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defendants are solidarily liable for their joint negligence that damaged her

residence. We find her argument persuasive.

Law of the case refers to a discretionary, jurisprudential doctrine under

which courts—both trial and appellate—ordinarily will not reconsider their prior

rulings in the same case. See KeyClick Outsourcing, Inc. v. Ochsner Health Plan,

Inc., 11-0598, p. 7 (La. App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. A more

complete definition of law of the case is that it refers to “(a) the binding force of

trial court rulings during later stages of the trial, (b) the conclusive effects of

appellate rulings at the trial on remand, and (c) the rule that an appellate court will

ordinarily not reconsider its own rulings of law on a subsequent appeal in the same

case.” Petition of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.

1973).

Law of the case is the proper procedural principle—as opposed to res

judicata—for describing the relationship between prior judgments by trial and

appellate courts rendered within the same case. Posey v. Smith, 453 So.2d 1016,

1018 (La. App. 3d Cir. 1984). Simply stated, law of the case “bars reconsideration

of issues [between the same parties] in the same case”; whereas, “res judicata bars

the relitigation of the same issues between the same parties in a second, subsequent

case.” Erica P. Sensenbrenner, Comment, A Proposal to Codify Louisiana's Law of

the Case Doctrine, 64 LOY. L. REV. 215, 222-23 (2018). Moreover, law of the case

is jurisprudential; res judicata is statutory. See Daigre v. Int’l Truck & Engine

Corp., 10-1379, p. 15 (La. App. 4 Cir. 5/5/11), 67 So.3d 504, 513-14.

A trio of policy reasons behind law of the case have been recognized:

“[i] the avoidance of indefinite relitigation of the same issue; [ii] the desirability of

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consistency of the result in the same litigation; and [iii] the efficiency, and the

essential fairness to both parties, of affording a single opportunity for the argument

and decision of the matter at issue.” Day v. Campbell-Grosjean Roofing & Sheet

Metal Corp., 260 La. 325, 330, 256 So. 2d 105, 107 (1971).

The jurisprudence has not applied the law of the case doctrine inflexibly.

Rather, it has applied the doctrine when “there is merely doubt as to the correctness

of the former holding, but not in cases of palpable former error or so mechanically

as to accomplish manifest injustice.” Petition of Sewerage and Water Bd., 278

So.2d at 83.

In addition to the palpable error exception to the application of the law of the

case doctrine, the jurisprudence has recognized three other exceptions. First, the

doctrine has not been applied “to supplant the Code of Civil Procedure provision

which clearly permits a reconsideration of the overruling of peremptory

exceptions,” Bank One, Nat. Ass’n v. Velten, 04-2001, pp. 6-7 (La. App. 4 Cir.

8/17/05), 917 So.2d 454, 459 (internal citations and quotations omitted). Second,

the doctrine has not been applied “when the underlying, operative facts upon which

the court’s prior decision was based have changed.” Id. Third, the doctrine has not

been applied “against those who were not parties to the litigation at the time the

prior decision was rendered.” Marsh Eng’g Inc. v. Parker, 04-0509, p. 8 (La. App.

3 Cir. 9/29/04), 883 So.2d 1119, 1124 (citation omitted). None of the exceptions

applies here. Rather, this case presents a textbook example of an appropriate

situation in which to apply law of the case.

In Fed. Work Ready, Inc. v. Wright, 19-0752 (La. App. 4 Cir. 4/22/20), 299

So.3d 140—an analogous case to this one—this Court found the appeal presented

it with “the quintessential factual and procedural scenario for applying the law of

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the case doctrine.” Id., 19-0752, p. 18, 299 So.3d at 151. There, Federal Work

Ready (“FWR”) filed a motion, which the trial court denied. This Court denied

FWR’s writ application seeking review of that ruling. One year later, FWR filed a

substantively similar motion. On appeal, we framed the issue as whether FWR’s

first-denied motion constituted law of the case so as to prevent consideration of

that motion on appeal. Federal Work Ready, 19-0752, p. 17, 299 So.3d at 150.

Answering that question in the affirmative, we observed:

When FWR appeared before the trial court on August 24, 2018, and
then again on May 24, 2019, it relitigated the same issue twice. The
only difference between the two hearings was the trial judge. On
August 24, 2018, a retired judge presided pro tempore. On May 24,
2019, Judge Ellen Hazeur presided. The underlying motions were the
same, the lawyers were the same, the parties were the same, and the
arguments were the same. There was absolutely no difference between
the hearings. FWR simply went to court twice on the same issue, hoping
it would receive a different result. The purpose of the law of the case is
to prevent parties from doing exactly what FWR did in this matter.

Federal Work Ready, 19-0752, p. 18, 299 So.3d at 151.

This appeal likewise presents a “quintessential factual and procedural

scenario for applying the law of the case doctrine.” Id. The parties in this appeal

are arguing the same legal issues applied to the same factual background as in

Holmes One. Thus, the law of the case doctrine applies and dictates that this

Court’s decision in Holmes One is dispositive.

DECREE

Accordingly, the trial court’s December 15, 2023 judgment granting the

exception of prescription and dismissing the claims against Hard Rock is vacated;

and this case is remanded to the trial court.

VACATED AND REMANDED

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