Newman, Hoffoss & Devall, LLP v. Raleigh Newman, Aplc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-967

NEWMAN HOFFOSS & DEVALL, LLP,
AND HOFFOSS & DEVALL, LLC

VERSUS

RALEIGH NEWMAN, APLC

**********

ON APPLICATION FOR SUPERVISORY WRITS OF REVIEW
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 13-3389
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Marc T. Amy, Phyllis M. Keaty, and David E. Chatelain,
Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Barry A. Roach
Larry A. Roach, Inc.
2917 Ryan Street
Lake Charles, Louisiana 70601
(337) 433-8504
Counsel for Relator:
Raleigh Newman, APLC


Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Russell J. Stutes, Jr.
Shelley Bouillion
Stutes & Lavergne, LLC
600 Broad Street
Lake Charles, Louisiana 70601
(337) 433-0022
Counsel for Respondents:
Newman, Hoffoss & Devall, LLP
Hoffoss & Devall, LLC

KEATY, Judge.

Defendant-Relator, Raleigh Newman, APLC, seeks supervisory writs from

the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the

Honorable Clayton Davis presiding, which denied Relator’s Notice and Exception

of Lis Pendens and which ordered the Clerk of Court for Calcasieu Parish to

“cancel and discharge of record[] a Notice of Lis Pendens . . . filed in the Mortgage

Records” and which “expressly requested, authorized, and directed [the Clerk of

Court for Calcasieu Parish], by order of [the] Court to cancel the recordation of the

aforementioned Notice of Lis Pendens by virtue of this order and upon submission

of the requisite cancellation form submitted by counsel for Plaintiffs.” For the

following reasons, we grant the writ application, reverse the trial court’s judgment

denying the exception of lis pendens, and order the suit bearing district court

docket number 2013-3389 dismissed without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation and the connected litigation giving rise to the lis

pendens issue arise out of an acrimonious demise of a law partnership. On April 1,

2013, Raleigh Newman1 filed a petition, bearing the district court’s docket number

2013-1538, seeking, in pertinent part:

II. A temporary restraining order issue herein, without bond,
enjoining and restraining each party to the agreement forming
Newman, Hoffoss & Devall, LLP, or anyone acting on their behalf,
from disposing of or altering in any way any client contracts, records
or documents that pertain in any way to the partnership of Newman,
Hoffoss & Devall, LLP and practice of law which existed since the
formation of Newman, Hoffoss & Devall, LLP until such time that
there is a formal accounting between the parties.

1
Mr. Newman’s appearance as Plaintiff in docket number 2013-1538 was only as an
individual in the original petition. It was not until the filing of the second supplemental and
amending petition on August 19, 2016, that Mr. Newman changed his designation into “Raleigh
Newman, Individually and as Agent for Raleigh Newman, APLC.”

III. A rule issue herein ordering all parties to show cause on
the date and hour to be set by this Honorable Court why a preliminary
injunction and finally a permanent injunction should not issue herein
in the form of the temporary restraining order described herein.

The caption to this petition names the Defendants as “HOFFOSS &

DEVALL, LLC, et al[.]” Nowhere in the petition does it set forth who constitutes

the “et al[.]” in the caption, and there is no specific paragraph of the petition which

clearly sets forth the names of the Defendants. Instead, the petition states:

1.

On January 6, 2010, RALEIGH NEWMAN, APLC, a
practicing attorney, entered into a partnership for the practice of law
with Hoffoss & Devall, LLC, through its partners, J. Lee Hoffoss, Jr.
and Claude P. Devall, Jr., which firm would be known as Newman,
Hoffoss & Devall, LLP.

2.

On January 21, 2010, Newman, Hoffoss & Devall, LLP (N H
D ) a Louisiana Limited partnership represented therein by all of its
partners, Raleigh Newman, A Professional Law Corporation (RN)
Hoffoss & Devall, LLC, a Louisiana Limited Liability Company;
Hoffoss & Devall LLC (H & D), a Louisiana Limited Liability
Company represented therein by all of its members, J. Lee Hoffoss, Jr.
and Claude P. Devall, Jr., Raleigh Newman, A Professional Law
Corporation (RN), a Louisiana Professional Law Corporation
represented therein by its duly authorized president, Raleigh Newman,
and C. Raleigh Newman, Sr., John Lee Hoffoss, Jr., and Claude
Pierson Devall, Jr., individually, entered into an operating agreement
for the operation of Newman, Hoffoss & Devall, LLP.

Raleigh Newman filed his First Supplemental and Amending Petition on

July 15, 2013. This amended petition did not add or alter any parties to the suit;

however, it added a claim for an accounting “between the parties as to a proper

division of fees resulting from the partnership business as well as from the conduct

of the individual partners of the partnership,” and added to the prayer for relief that

“[t]here should be a full accounting as outlined hereinabove.”

2

On July 23, 2013, Newman, Hoffoss & Devall, LLP, a domestic limited

liability partnership (hereinafter sometimes NHD), and Hoffoss & Devall, LLC, a

domestic limited liability company (hereinafter sometimes HD), filed their Petition

in Suit for Partnership Termination, and for Damages, and for Declaratory and

Other Relief, which bears the district court’s docket number of 2013-3389. The

only defendant named in the suit is Raleigh Newman, APLC. This petition

outlines the factual history of the creation of the NHD partnership and the

disagreements giving rise to the end of the parties’ business arrangement. In

pertinent part, this petition prays for the following relief:

II. After due proceedings had, and the lapse of all legal
delays, there be judgment herein in favor of NEWMAN, HOFFOSS
& DEVALL, LLP and HOFFOSS & DEVALL, LLC and against
defendant, RALEIGH NEWMAN, APLC, as follows:

A. Terminating NEWMAN, HOFFOSS &
DEVALL, LLP effective January 1, 2012;

B. All fees paid to RALEIGH NEWMAN, APLC
by NEWMAN, HOFFOSS & DEVALL, LLP
after January 1, 2012 are to be returned to
NEWMAN, HOFFOSS & DEVALL, LLP; and

C. Appoint HOFFOSS & DEVALL, LLC to
perform an accounting of NEWMAN, HOFFOSS
& DEVALL, LLP, and to serve as the sole
member of the Liquidation Committee of
NEWMAN, HOFFOSS & DEVALL, LLP, and
to wind down the business of NEWMAN,
HOFFOSS & DEVALL, LLP.

III. In the alternative, should this Court find that NEWMAN,
HOFFOSS & DEVALL, LLP has not terminated as of March 12,
2013, HOFFOSS & DEVALL, LLC be allowed to take possession
of all cases being worked on by RALEIGH NEWMAN, APLC as of
March 12, 2013 and prohibit any partner of RALEIGH NEWMAN,
APLC from taking any further action toward the prosecution and
funding of any cases in the possession of RALEIGH NEWMAN,
APLC as of March 12, 2013.

3

On August 19, 2016, the Plaintiff’s Second Supplemental and Amending

Petition was filed in 2013-1538. This pleading asked that the caption of the subject

case be changed to read:

RALEIGH NEWMAN, Individually
and as Agent for RALEIGH NEWMAN,
APLC

VS.

HOFFOSS & DEVALL, LLC and
NEWMAN, HOFFOSS & DEVALL, LLP

Although the pleading asked that the name of the Plaintiff be changed

throughout the original petition and the first supplemental and amending petition to

read as set forth in the new caption, this pleading does not provide a specific

paragraph naming the defendants to the suit. It added a claim that Hoffoss &

Devall, LLC, and Newman, Hoffoss & Devall, LLP, had violated the partnership

agreement and breached their fiduciary duties to the partners resulting in damage

to the Plaintiff for which recovery was being sought. The prayer for relief then

provides, in pertinent part:

II. There should be a full accounting as outlined
hereinabove;

III. After due proceedings had and the lapse of all legal
delays, there be judgment herein incorporating the findings of the
final accounting reached between the parties.

IV. After due proceedings had and the lapse of all legal
delays, there be judgment herein in favor of petitioner, RALEIGH
NEWMAN, APLC, and against defendants, HOFFOSS & DEVALL,
LLC and NEWMAN, HOFFOSS & DEVALL, LLP, awarding
unto Petitioner such damages that Petitioner suffered as a result of
Defendants’ violation of the Partnership Agreement and breach of
their fiduciary duties as partners, together with legal interest thereon
from date of judicial demand until paid, and for all costs of these
proceedings.

4

On April 7, 2016, in docket number 2013-3389, Raleigh Newman, APLC,

filed a Notice of Lis Pendens. On July 21, 2016, NHD and HD filed a Motion for

Rule to Show Cause Why Lis Pendens Should Not Be Denied. After filing the

second supplemental and amending petition in 2013-1538 which is discussed

above, Raleigh Newman, APLC, filed a memorandum in support of the exception

of lis pendens. NHD and HD filed an opposition to the notice of lis pendens to

which Raleigh Newman, APLC, filed a reply memorandum.

A hearing was held by the trial court in docket number 2013-3389 on the lis

pendens issue. The trial court signed a written judgment on November 3, 2016,

entitled Order Denying Defendant’s Notice and Exception of Lis Pendens. Raleigh

Newman, APLC, timely sought a return date for the filing of the instant writ

application in which he seeks a reversal of the trial court’s ruling. Relator asserts

the following assignments of error:

1. The trial court erred as a matter of law by failing to hold and
decide that Raleigh Newman could “amend his petition without leave
of court at any time before the answer thereto is served.” The trial
court was told by Raleigh Newman’s counsel that Hoffoss & Devall
had never filed an answer to the original lawsuit, meaning Raleigh
Newman could appeal as of right. Nevertheless, the trial court
accepted NHD and Hoffoss & Devall’s repeated claims that the trial
court could not consider the Second Supplemental and Amending
Petition until Raleigh Newman received leave of court to file it.

2. The trial court erred as a matter of law in failing to apply
Raleigh Newman’s Second Supplemental and Amending Petition in
the decision at hand. Raleigh Newman’s Second Supplemental and
Amending Petition was attached in its entirety to Raleigh Newman’s
Memo in Support of Lis Pendens and filed in the record in the trial
court. That Second Supplemental and Amending Petition cures every
issue that Hoffoss & Devall and NHD complain of, and would
mandate lis pendens. However, the trial court failed to consider its
effect on the Rule to Show Cause.

3. Even setting aside the effect that Raleigh Newman’s Second
Supplemental and Amending Petition would have on this litigation,
the trial court still erred as a matter of law when it ruled that [the] two

5

suits involve different issues. The proper standard for lis pendens is
not whether there are different issues, but whether the two cases stem
from the “same transaction or occurrence.” That broader standard
means that lis pendens applies when the same logically related events
entitle the parties to institute legal action, which in this case, means
the partnership agreement, and the events that led to the March 13,
2013 walk-out by Hoffoss & Devall.

4. The trial court erred as a matter of law by holding that the two
suits involve different parties. Hoffoss & Devall and NHD’s lawyer
only focused on Raleigh Newman in his individual capacity as
opposed to Raleigh Newman, APLC, the law firm. But the Third
Circuit has already held that an individual attorney and the law firm
that he owns and operates are the same person for the purposes of lis
pendens. See Bandaries v. Cassidy, 2011-1267 (La. App. 3 Cir.
3/7/12, 6), 86 So.3d 125, 128, writ denied, 2012-0780 (La. 5/25/12),
90 So.3d 412.

DISCUSSION

The doctrine of lis pendens is found in La.Code Civ.P. art. 531, as follows:

When two or more suits are pending in a Louisiana court or
courts on the same transaction or occurrence, between the same
parties in the same capacities, the defendant may have all but the first
suit dismissed by excepting thereto as provided in Article 925. When
the defendant does not so except, the plaintiff may continue the
prosecution of any of the suits, but the first final judgment rendered
shall be conclusive of all.

The first issue that this court must consider is whether this exception was

properly raised before the trial court. As discussed above, Raleigh Newman,

APLC, filed a Notice of Lis Pendens, in response to which NHD and HD filed a

Motion for Rule to Show Cause Why Lis Pendens Should Not Be Denied. At the

hearing on NHD and HD’s motion, counsel for NHD and HD began the oral

argument before the trial court by noting that no exception of lis pendens had been

filed in this action; rather, Raleigh Newman, APLC, had filed this Notice of Lis

Pendens, even though the parties involved in this litigation owned no immovable

6

property together.2 Despite noting the lack of a formal exception of lis pendens,

counsel for NHD and HD stated that he knew that if the court found that the

exception was not properly pending before the court due to its having not been

formally filed, Raleigh Newman, APLC, would simply file said exception.

Therefore, the argument continued as though an exception of lis pendens had been

properly filed.

As quoted above, La.Code Civ.P. art. 531 refers to La.Code Civ.P. art. 925.

This latter article provides, in pertinent part, “[t]he objections which may be raised

through the declinatory exception include but are not limited to the following: . . . .

(3) Lis Pendens.” La.Code Civ.P. art. 925(A). However, La.Code Civ.P. art. 924

states, “[a]ll exceptions shall comply with Articles 853, 854, and 863, and,

whenever applicable, with Articles 855 through 861. They shall set forth the name

and surname of the exceptor, shall state with particularity the objections urged and

the grounds thereof, and shall contain a prayer for the relief sought.”

While La.Code Civ.P. art. 924 does not expressly require the declinatory

exceptions to comply with La.Code Civ.P. art. 852, we find that they must.

Louisiana Code of Civil Procedure Article 852 (emphasis added) provides, in

pertinent part, “[t]he pleadings allowed in civil actions . . . shall be in writing

and shall consist of petitions, exceptions, written motions, and answers.” The

assertion that a writing requirement is required is bolstered by a reading of some of

the articles specifically listed in La.Code Civ.P. art. 924.

For instance, La.Code Civ.P. art. 853, which is entitled, “Caption of

pleadings; adoption by reference; exhibits[,]” provides:

2
The physical location in which NHD had operated was owned by Raleigh Newman,
APLC.

7

Every pleading shall contain a caption setting forth the name of
the court, the title and number of the action, and a designation of the
pleading. The title of the action shall state the name of the first party
on each side with an appropriate indication of other parties.

A statement in a pleading may be adopted by reference in a
different part of the same pleading or in another pleading in the same
court. A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.

Louisiana Code of Civil Procedure Article 854, which is entitled, “Form of

pleading[,]” provides:

No technical forms of pleading are required.

All allegations of fact of the petition, exceptions, or answer
shall be simple, concise, and direct, and shall be set forth in numbered
paragraphs. As far as practicable, the contents of each paragraph shall
be limited to a single set of circumstances.

Louisiana Code of Civil Procedure Article 863, which is entitled, “Signing

of pleadings, effect[,]” provides:

A. Every pleading of a party represented by an attorney shall
be signed by at least one attorney of record in his individual name,
whose address shall be stated. A party who is not represented by an
attorney shall sign his pleading and state his address.

B. Pleadings need not be verified or accompanied by
affidavit or certificate, except as otherwise provided by law, but the
signature of an attorney or party shall constitute a certification by him
that he has read the pleading, and that to the best of his knowledge,
information, and belief formed after reasonable inquiry, he certifies all
of the following:

(1) The pleading is not being presented for any improper
purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation.

(2) Each claim, defense, or other legal assertion in the
pleading is warranted by existing law or by a nonfrivolous argument
for the extension, modification, or reversal of existing law.

(3) Each allegation or other factual assertion in the pleading
has evidentiary support or, for a specifically identified allegation or
factual assertion, is likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.

8

(4) Each denial in the pleading of a factual assertion is
warranted by the evidence or, for a specifically identified denial, is
reasonably based on a lack of information or belief.

C. If a pleading is not signed, it shall be stricken unless
promptly signed after the omission is called to the attention of the
pleader.

D. If, upon motion of any party or upon its own motion, the
court determines that a certification has been made in violation of the
provisions of this Article, the court shall impose upon the person who
made the certification or the represented party, or both, an appropriate
sanction which may include an order to pay to the other party the
amount of the reasonable expenses incurred because of the filing of
the pleading, including reasonable attorney fees.

E. A sanction authorized in Paragraph D shall be imposed
only after a hearing at which any party or his counsel may present any
evidence or argument relevant to the issue of imposition of the
sanction.

F. A sanction authorized in Paragraph D shall not be
imposed with respect to an original petition which is filed within sixty
days of an applicable prescriptive date and then voluntarily dismissed
within ninety days after its filing or on the date of a hearing on the
pleading, whichever is earlier.

G. If the court imposes a sanction, it shall describe the
conduct determined to constitute a violation of the provisions of this
Article and explain the basis for the sanction imposed.

The foregoing articles make clear the intention of the legislature that the

exceptions, such as lis pendens, must be made in writing. The Notice of Lis

Pendens, which was filed into this record, states that (emphasis added):

[D]efendant in the above captioned suit does hereby file an
exception and notice of pendency of a suit against plaintiffs in the
above captioned matter, which is entitled Raleigh Newman v. Hoffoss
and Devall, LLC, in the 14th Judicial District Court for Calcasieu
Parish, Louisiana, Docket No. 2013-1538 filed on April 1, 2013 which
involves the same parties, issues and transaction or occurrence as the
captioned matter. Therefore, two suits are pending in separate
Louisiana State Courts, and RALEIGH NEWMAN, APLC puts this
Honorable Court on notice of the prior pending action.”

9

In Aisola v. Louisiana Citizens Property Insurance Corp., 14-1708, p. 4 (La.

10/14/15), 180 So.3d 266, 269, the supreme court instructed:

The doctrine of lis pendens prevents a plaintiff from litigating a
second suit when the suits involve the same transaction or occurrence
between the same parties in the same capacities. For lis pendens to
apply, La.Code Civ. Proc. art. 531 requires that (1) two or more suits
are pending in a Louisiana court or courts; (2) on the same transaction
or occurrence; and (3) between the same parties in the same capacities.
The “test” established to determine if an exception of lis pendens
should be sustained is the same as that for res judicata; thus, an
exception of lis pendens should be sustained if “a final judgment in
the first suit would be res judicata in the subsequently filed suit.”
United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir.
10/30/01), 800 So.2d 1061, 1065; see also Domingue v. ABC Corp.,
96-1224 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248, writ denied,
96-1947 (La. 11/1/96), 681 So.2d 1268.

In Stokes v. Layssard, 15-969 (La.App. 3 Cir. 3/9/16), 187 So.3d 576, writ

denied, 16-1027 (La. 9/16/16), 206 So.3d 883, the plaintiff had attempted to set

aside a donation of property for various reasons. She lost in that action following a

trial, and the judgment in the defendant’s favor was affirmed by this court.

However, the plaintiff in the original suit then instituted a new action against the

same defendant attacking the same donation but on different grounds. In affirming

the trial court’s decision to grant the exception of res judicata and to dismiss the

plaintiff’s new suit, this court provided the following instructive language:

Because they address common issues, we address Stokes’
second and third assignments of error together. In these assignments
of error, Stokes asserts that the trial court erred in sustaining the
exception of res judicata by preclusion. In support of this assignment,
she asserts that the cause of action for ingratitude did not exist at the
time she filed her first suit and, further, that the cause of action in the
instant suit did not arise from the same transaction or occurrence as
the prior suit. For the following reasons, we find these assignments of
error to lack merit.

Louisiana Code of Civil Procedure Article 425 provides that “[a]
party shall assert all causes of action arising out of the transaction or
occurrence that is the subject matter of the litigation.” Article 425 is
read in pari materia with the res judicata statute, La.R.S. 13:4231.

10

Spires v. State Farm Mut. Auto. Ins. Co., 08-573 (La.App. 3 Cir.
11/5/08), 996 So.2d 697, writ denied, 08-2871 (La. 2/6/09), 999 So.2d
783.

Res judicata is an issue and claim preclusion
device which prohibits relitigation of matters which were
litigated or could have been litigated in a prior suit.
Louisiana Revised Statute[s] 13:4231 enumerates the
specific circumstances under which a valid and final
judgment will preclude a party from raising a claim or
issue in a subsequent proceeding.

Walker v. Howell, 04-246, p. 3 (La.App. 3 Cir. 12/15/04), 896 So.2d
110, 112 (emphasis added). Louisiana Revised Statutes 13:4231
provides, in pertinent part:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

....

(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
extinguished and the judgment bars a subsequent action on those
causes of action.

Our court has previously explained:

Technically, both claim and issue preclusion are termed res
judicata under our law. However, there is a distinction given in
Hudson v. City of Bossier[, 33,620, p. 7 (La.App. 2 Cir. 8/25/00), 766
So.2d 738, 743, writ denied, 00-2687 (La. 11/27/00), 775 So.2d 450]:

Under claim preclusion, a final judgment on the
merits precludes the parties from relitigating matters that
were or could have been raised in that action. . . .

Thus, unlike issue preclusion, claim preclusion is
much broader, encompassing a prohibition against
relitigation of those matters which, not only, were
litigated but, also, of those which could have been
litigated. “The purpose of both federal and state law on
res judicata is essentially the same; to promote judicial
efficiency and final resolution of disputes by preventing
needless re-litigation.”

11

Williams v. City of Marksville, 02-1130, pp. 2-3 (La.App. 3 Cir.
3/5/03), 839 So.2d 1129, 1131 (footnotes omitted). Importantly,
“[f]or res judicata to apply, the cause or causes of action asserted in
the second suit must have existed at the time of final judgment in the
first litigation.” Burguieres v. Pollingue, 02-1385, p. 12 (La. 2/25/03),
843 So.2d 1049, 1056.

In the instant matter, there is no dispute that the parties are the
same. The first suit was an action to annul the donation of the
property to Layssard on the grounds that the form of the donation was
invalid. In the second suit, Stokes attempted to revoke the donation
on the grounds of ingratitude. Both claims concern an attempt to have
the same property returned to Stokes and arise out of Layssard’s
refusal to return the property at issue to Stokes. Thus, they arise out
of the same transaction or occurrence. Additionally, for the reasons
articulated in our analysis of assignment of error number one, we find
that the cause of action to revoke the donation on the grounds of
ingratitude existed and should have been known by Stokes on August
2, 2012. Final judgment in the first suit was rendered on October 1,
2013. Thus, we conclude that the cause of action asserted in the
instant matter existed, and should have been brought, at the time final
judgment in the first suit was rendered. Therefore, we find that the
trial court did not err in sustaining Layssard’s exception of res
judicata on the grounds that the claims were precluded and affirm the
judgment of the trial court on this issue.

Layssard, 187 So.3d at 579-80 (first, third, and fourth alteration in original).

As to the identity of the parties element, in Forum for Equality PAC v.

McKeithen, 04-2551, pp. 10-11 (La. 1/19/05), 893 So.2d 738, 745 (alteration in

original), the supreme court has stated:

An examination of the res judicata provision, La.R.S. 13:4231,
reveals that a second action is precluded when all of the following are
satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the
parties are the same; (4) the cause or causes of action asserted in the
second suit existed at the time of final judgment in the first litigation;
and (5) the cause or causes of action asserted in the second suit arose
out of the transaction or occurrence that was the subject matter of the
first litigation. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843
So.2d 1049. The sole element disputed by plaintiffs is the third
element, relating to the identity of the parties. Specifically, plaintiffs
assert there are three new plaintiffs in the instant litigation (Louisiana
Log Cabin Republicans, Gerald Thibodeaux and Julie Jacobs).
Because these plaintiffs were not parties to the Orleans Parish
litigation, plaintiffs argue they should not be subject to res judicata.

12

In Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156
(La.1978), we explained that “[t]here exists an identity of parties
whenever the same parties, their successors, or others appear so long
as they share the same ‘quality’ as parties.” In Hudson v. City of
Bossier, 33,620 at p. 8 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743,
the appellate court, relying on federal jurisprudence interpreting res
judicata provisions analogous to those under our state law, found that
the preclusive effect of a judgment could bind a nonparty whose
interests were adequately represented by parties to the litigation:

Under federal law, the preclusive effect of a judgment
binds the parties to the action and nonparties who are
deemed the “privies” of the parties in these limited
circumstances: (1) the nonparty is the successor in
interest of a party; (2) the nonparty controlled the prior
litigation; or (3) the nonparty’s interests were adequately
represented by a party to the action who may be
considered the “virtual representative” of the nonparty
because the interests of the party and the nonparty are so
closely aligned. Gilbert v. Visone, 30,204 (La.App. 2d
Cir. 02/25/98), 708 So.2d 496; Condrey v. Howard,
28,442 (La.App. 2d Cir. 08/21/96), 679 So.2d 563, writ
denied, 96-2335 (La. 11/22/96), 683 So.2d 281, citing
Meza v. General Battery Corp., 908 F.2d 1262 (5th
Cir.1990).

The interests of the additional parties in the instant litigation
who were not parties to the Orleans Parish litigation are closely
aligned with the interests of the parties in the Orleans Parish litigation.
Under these circumstances, we must conclude their interests were
adequately represented by the parties in the Orleans Parish litigation.

This court will now consider the facts of the instant case in light of the

foregoing principles. In the petition filed by NHD and HD in 2013-3389 on

July 23, 2013, these parties aver, in pertinent part:

On March 13, 2013, a meeting was held in the office of
NEWMAN during which J. Lee Hoffoss, Jr. and Claude P. Devall
informed Raleigh Newman that because of NEWMAN’s afore
described [sic] action, H&D was terminating the partnership for cause
and that NEWMAN would no longer be taking part in the business of
NHD, thus expelling NEWMAN from NHD for cause due to
NEWMAN’s actions[.]

Again, we note that at the time docket number 2013-1538 was filed on

April 1, 2013, Mr. Newman appeared only in his individual capacity. Nevertheless,

13

we discussed the claims being advanced in the original petition in docket number

2013-1538 previously herein.

Thus, we find that all claims arising out of the dissolution of NHD were

viable as of the date of the filing of docket number 2013-1538. While this first-

filed suit did not specifically name the Defendants to the action, the intent was

obviously to name Newman, Hoffoss & Devall, LLP, and the individual partners

since those were the parties sought to be enjoined by the temporary restraining

order. Furthermore, while the petition in docket number 2013-1538 named

Raleigh Newman only in his individual capacity, the individual could only seek the

relief as to the partnership by appearing as the representative of Raleigh Newman,

APLC, because only it was a member of the partnership, not the individual Raleigh

Newman. Therefore, there was a sufficient identity of the parties’ interests to

satisfy the test as to whether a judgment in 2013-1538 should bind the same parties

who appear in docket number 2013-3389.3

In the opposition memorandum submitted to this court, NHD and HD assert

that all of the claims made by the original petition filed in docket number 2013-

1538 were put to an end when the parties entered into a stipulation “whereby the

parties agreed that they would not dispose of any client contracts, records or

documents.” However, when NHD and HD moved for the trial court to dismiss

the suit in 2013-1538, Raleigh Newman objected to the dismissal because there

was outstanding discovery to which they had not, according to Mr. Newman,

sufficiently responded.

3
We note, though, that in the reply brief filed in this court, Newman contends that it was
“impossible” for Newman to be “expelled” from NHD because the partnership agreement
requires unanimous agreement for a partner to be expelled pursuant to Section 4.4 of the
agreement.

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In the opposition memorandum NHD and HD write:

NHD and HD previously filed motions to dismiss and strike,
and an exception of no cause of action, all pending before the trial
court in the Injunction Suit [2013-1538]. The status of said motions
and exception have been discussed during several discovery related
hearings before the trial court in the Injunction Suit, which resulted in
dicta as to said motions and exception from both parties and the trial
judge in hearing transcripts. However, the trial court has not formally
heard argument, and has not considered the memorandum or merits of
any of said motions or exception. The record of the Injunction Suit is
manifestly void of any judgment or order denying any of these
pending matters.

These parties stated the foregoing in an attempt to show that the trial court

has not ruled on the motion to dismiss in 2013-1538, contrary to Raleigh Newman

and Raleigh Newman, APLC’s assertions in their writ application that the trial

court in that matter had denied their motion to dismiss. Nevertheless, we note that

the foregoing quote also indicates that there are ongoing matters in 2013-1538,

such as the exception of no right of action.4

NHD and HD also contend that no supplemental and amending petitions

should have been permitted in 2013-1538 because the parties had entered into the

stipulation which rendered the prayer for relief in the original petition moot before

those supplemental and amending petitions were filed. The stipulation appears as

an exhibit to the opposition memorandum. As asserted by NHD and HD, the

stipulation provides for the relief sought by the original petition filed in 2013-1538.

However, as noted above, 2013-1538 was not formally dismissed prior to

those additional filings and from the exception of no right of action and the

4
No party involved in this writ application has submitted a copy of the exception of no
right of action filed in 2013-1538. However, the exception apparently challenges the right of the
individual Raleigh Newman to bring an action clearly belonging only to a partner in NHD, i.e.,
Raleigh Newman, APLC. Arguably, the cure for such a defect, if it exists, would be to sustain
the objection and afford the plaintiff, Raleigh Newman, the opportunity to amend the petition to
substitute a party who does have an interest in the action, i.e., Raleigh Newman, APLC.
La.Code Civ.P. art. 934. This amendment has already been accomplished through filing of
Plaintiffs’ Second Supplemental and Amending Petition in that action.

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discovery that was ongoing, it does not appear that 2013-1538 was at an end. As

pointed out in the instant writ application to this court, at the hearing held in 2013-

1538 on July 24, 2013, then counsel for NHD and HD stated in open court, “We’re

just going to leave it like it is, do the discovery, and come back to the Court if we

don’t settle our differences.” The trial court then stated, “Okay. Now, in today’s

proceeding the defendants are alleging that this lawsuit filed initially, this

particular one, is -- is -- no longer exists --” and then stated, “essentially is what

they’re saying. But we’re not going to talk about that or go there or resolve that.”

In response, counsel for NHD and HD stated, “we’re going to leave it right where

it is, reserving our right to contend that it’s moot and the right of the defendant to

contend that it is still viable, if we have to go there.” Thus, the parties and the trial

court in 2013-1538 anticipated the discovery was to move forward in that docket

number and that the extant exception of no right of action and motions would be

held in abeyance, at least temporarily, in an attempt to complete discovery and

perhaps permit the parties to settle their differences. Therefore, we find the

argument that the suit in 2013-1538 was at an end with the stipulation entered into

between the parties is without merit.

Accordingly, we hold that the exception of lis pendens should have been

sustained by the trial court and that the suit bearing the district court docket

number 2013-3389 should have been ordered dismissed without prejudice.

DECREE

For the foregoing reasons, the writ application is granted, the trial court’s

judgment denying the Notice and Exception of Lis Pendens filed by Defendant-

Relator, Raleigh Newman, APLC, in district court docket number 2013-3389 is

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reversed, and the suit bearing the same district court docket number is dismissed

without prejudice.

WRIT GRANTED AND MADE PEREMPTORY.

17