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680 So. 2d 637

Docket No. 96-C-1434.

Marsh Engineering, Inc. v. Parker

MARSH ENGINEERING, INC., et al. v. Ernest L. PARKER, et al.

Supreme Court of Louisiana

Decided September 27, 1996.

Concurring Opinion October 1, 1996.

Supreme Court of Louisiana · decided 1996-10-01

Good law ✅— No negative treatment on recordhow we know

Decided 1996-10-01

How this case has been cited

Cited by 8 later decisions — most recently February 2014

1 federal appellate · 6 state decisions

50199620002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Concurring Opinion of Justice Lemmon October 1, 1996.

¶2Denied.

¶3*638 WATSON, J., would grant the writ.

¶4LEMMON, J., concurs with reasons.

¶5CALOGERO, C.J., not on panel; recused.

¶6LEMMON, J., concurring.

¶7I concur in the denial of certiorari, but note that the denial has no res judicata effect in this court on the issue of prescription. Although the court of appeal "ruled" that La.Rev.Stat. 9:5605 does not apply retroactively, the judgment of the court of appeal merely overruled an exception of prescription and thus did not determine the merits of the case in whole or in part.[1]

¶8More importantly, the court of appeal remanded the case to the district court for trial of the other issues, and this court invariably declines to exercise supervisory jurisdiction under such circumstances. Therefore, our writ denial[2] of an application from a partial judgment remanding the case for trial of other issues means nothing more than a refusal to review the prescription issue at this time. Certainly the writ denial does not preclude this court's review of this issue in a future certiorari application after the district court's judgment on the merits on remand and the intermediate court's judgment on appeal after remand.[3]

NOTES

¶9[1] A final judgment is one that determines the merits of the case in whole or in part. La.Code Civ.Proc. art. 1841. Only a final judgment (as opposed to interlocutory) acquires the effect of res judicata. La.Rev.Stat. 13:4231.

¶10[2] If defendant had not sought certiorari now, the result should be the same. If a writ denial has no res judicata effect, a failure to file a writ destined for denial should be treated likewise.

¶11[3] The "law of the case" doctrine may apply as to the prescription issue in the intermediate court on an appeal after the district court on remand renders a judgment deciding the entirety of the merits. However, while an appellate court has the power to revisit an issue when the "law of the case" doctrine applies, no court has the power to change a judgment that has become res judicata.

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