Daniel Lund III | Phelps Dunbar
What did you know… and when?
Parties typically get one bite at the apple in court on a particular “transaction” or “occurrence.” Principles of res judicata – the idea that a matter has been adjudicated and cannot be re-litigated – compel parties to bring related claims in a single proceeding or be barred from doing so down the road.
A most peculiar set of circumstances was presented to courts in Louisiana, wherein a plaintiff sought removal of a construction lien from a project. As it turned out, the same plaintiff had earlier filed suit to have the lien canceled but was unsuccessful. The plaintiff’s second bid to have the lien dismissed met with favor by the court despite the lien holder’s res judicata defense. The lien was dismissed, and the lien holder appealed.
However, before the matter was completely handled on appeal, the lien holder requested that the Court of Appeal dismiss the appeal and remand the matter back to the trial court – on the basis that the lien holder had itself newly discovered that, in fact, the plaintiff was at the time of its first unsuccessful suit aware of “all of the facts alleged in [the present] lawsuit and the claim it has asserted in the Second Lien Removal Suit” – additional grounds supporting res judicata.
The Louisiana Fourth Circuit Court of Appeal agreed, dismissing the appeal, vacating the trial court’s judgment, and remanding the matter back to the trial court: “An appellate court’s authority to remand a case to the trial court for the consideration of additional evidence, when necessary to reach a just decision and to prevent a miscarriage of justice, is conferred by La. C.C.P. art. 2164 [“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”]. …
“Applying these principles here, we find—in light of the purported new evidence—that this matter must be remanded for consideration of whether that evidence is relevant in resolving the res judicata issue. In so doing, we acknowledge that, as a court of record, we cannot consider the purported newly discovered evidence; it is not properly before us. Nonetheless, to prevent a potential miscarriage of justice from the failure to consider such 2 evidence, we find the appropriate remedy is to remand. To do so, we must vacate the trial court’s judgment.”
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.