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

• Court: Louisiana Court of Appeal
• Decided: February 18, 2021
• Docket: 2020CW1286
• Status: Unknown

Opinion

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

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

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.

DEPUTY CLERK OF COURT FOR THE COURT