Louisiana Case Law

CLASSEN v. HOFMANN, 06-560 (La.App. 5 Cir. 11-28-06) MARY
L. CLASSEN, WIFE OF/AND ANTHONY C. CLASSEN v. VIVIAN
HOFMANN, HORACE MANN INSURANCE COMPANY, UNITED SERVICES
AUTOMOBILE ASSOCIATION. No. 06-CA-560. Court of Appeal of
Louisiana, Fifth Circuit. November 28, 2006. Page 1

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 587-760,
DIVISION “K”, HONORABLE MARTHA E. SASSONE, JUDGE PRESIDING.

ROBERT P. KEMP, Counsel for Plaintiffs/Appellants, Mary L.
Classen and Anthony C. Classen.

M. RANDALL BROWN, CAMERON M. MARY, BROWN & MARY, LLC,
Counsel for Defendants/Appellees, Vivian Hofmann & Horace
Mann Insurance Company.

MICHAEL R. SISTRUNK, C. DEVIN FADAOL, McCRANIE, SISTRUNK,
ANZELMO, HARDY, MAXWELL & McDANIEL Counsel for
Defendant/Appellee, United Services Automobile Association

Panel composed of Judges THOMAS F. DALEY, FREDERICKA
HOMBERG WICKER, and GREG G. GUIDRY.

THOMAS F. DALEY, Judge. Page 2

Plaintiffs, Mary L. Classen and Anthony C. Classen, appeal
the trial court’s grant of defendants’ Exception of Res
Judicata. For the reasons that follow, we affirm.

This action arises out of an automobile accident that
occurred in Jefferson Parish on May 24, 2002, between an
automobile driven and owned by Vivian Hofmann and an
automobile driven by Mary L. Classen and owned by her and
her husband, Anthony C. Classen.[fn1] On July 29, 2002,
Hofmann filed suit in Civil District Court, Parish of
Orleans, for personal injuries and property damage, naming
as defendants Mrs. Classen, USAA Insurance (Mrs. Classen’s
liability insurer), and Horace Mann Insurance Company
(Hofmann’s uninsured/underinsured motorist insurance
carrier). Mrs. Classen was personally served on August 7,
2002. In this suit, Mrs. Classen was represented by counsel
provided by her liability insurance carrier, USAA.

On November 12, 2002, the Classens, represented by
different counsel, filed the instant suit, in the 24th JDC
in Jefferson Parish, against Mrs. Hofmann and her liability
carrier, Horace Mann Insurance, alleging Page 3 personal
injuries and property damage arising out of the same
automobile accident that formed the basis for Mrs. Hofmann’s
suit in Orleans Parish. Mrs. Classen answered the Orleans
Parish suit, but did not file a reconventional demand in
the Orleans Parish suit. Mrs. Hofmann answered the
Jefferson Parish suit, but did not file an Exception of Lis
Pendens in the Jefferson Parish suit.

The parties to the Orleans Parish suit settled the case
before the conclusion of the Jefferson Parish suit. On
November 24, 2004, pursuant to a Joint Motion to Dismiss,
an Order dismissing the suit with prejudice was signed. No
appeals were taken in that matter.

On February 25, 2005, defendants, Hofmann and Horace Mann
Insurance Company, filed an Exception of Res Judicata in
the instant matter, citing the dismissal with prejudice of
the Orleans Parish suit as the basis for the Exception. The
Exception was heard on March 30, 2005. The trial court
granted the Exception, without reasons, by judgment signed
on April 11, 2005.

On appeal, the Classens argue that the trial court erred
in granting the Exception because one essential element,
that the parties must be the same, was not met, nor did the
parties appear in the same capacity in both suits. Next,
the Classens argue that the trial court erred because the
issues in the Orleans Parish lawsuit were not actually
litigated or decided; the Classens’ insurance company, they
argue, merely made a business decision to settle the
lawsuit.

LSA-R.S. 13:4231, amended in 1991, states:

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:
Page 4

(1) If the judgment is in favor of the plaintiff, 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
merged in the judgment.

(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.

(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action between
them, with respect to any issue actually litigated and
determined if its determination was essential to that
judgment.

LSA-C.C.P. art. 1061(B), which was also amended in 1991,
states that the defendant in the principal action, except in
an action for divorce under Civil Code Article 102 or 103,
shall assert in a reconventional demand all causes of
action that he may have against the plaintiff that arise
out of the transaction or occurrence that is the subject
matter of the principal action (emphasis added).

In Tower Partners, L.L.C. v. Wade, 2003-0665 (La.App. 4
Cir. 1/21/04), 869 So.2d 126, 129, the court summarized
recent jurisprudence on res judicata as follows:

In Terrebonne Fuel & Lube, Inc. v. Placed Refining Co.,
95-0654, 95-0671 (La. 1/16/96), 666 So.2d 624, the
Louisiana Supreme Court discussed the scope of res
judicata as follows:

Res judicata is an issue preclusion device found both in
federal law and in state law. Prior to the amendments to
Louisiana res judicata law effective in 1991, Louisiana
law on res judicata was substantially narrower than
federal law. The purpose of both federal and state law on
res judicata is essentially the same; [sic] to promote
judicial efficiency and final resolution of disputes by
preventing needless relitigation.

95-0654, p. 11-12; 666 So.2d at 631.

In Terrebonne, the Supreme Court also stated: “the
original Louisiana doctrine of res judicata was based on a
presumption of correctness rather than an extinguishment
of the cause of action. A decided case precluded a second
suit only if Page 5 it involved the same parties, the
same cause and the same object of demand as the prior
suit.” 95-0654, p. 12; 666 So.2d at 632 (citation
omitted). The Supreme Court further stated that under La.
R.S. 13:4231, as amended effective 1 January 1991, the
following would be the case:

[A] second action would be barred because it arises out
of the occurrence which was the subject matter of the
prior litigation. The central inquiry is not whether the
second action is based on the same cause or cause of
action (a concept which is difficult to define) but
whether the second action asserts a cause of action which
arises out of the transaction or occurrence which was the
subject matter of the first action.

Id., quoting Comments – 1990, La. R.S. 13:4231.

The official comment to article 1061, which was also
amended effective 1 January 1991, states in pertinent
part:

(a) Judicial efficiency is served by requiring the
defendant though compulsory reconventional demand to
assert all causes of action he may have against the
plaintiff that arise out of the transaction or occurrence
that is the basis for the plaintiff’s action.

(b) Furthermore, if the defendant has a cause of action
arising out of the subject matter of the plaintiff’s
action, then the defense of res judicata will prevent
relitigation of issues common to both causes of action
except as otherwise provided by law. The requirement of a
compulsory reconventional demand therefore also serves
the interest of fairness by giving the defendant notice
that he must assert his related cause of action.

In Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843
So.2d 1049, the Supreme Court set forth five criteria that
must be met for a matter to be considered res judicata.
They are:

(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.

2002-1385, p. 8; 843 So.2d at 1053.

The Classens argue that the parties were different in each
suit, as Mr. Classen was not a defendant in the Orleans
Parish suit, but was a plaintiff in Page 6 the Jefferson
Parish suit. They also argue that they appeared in
different capacities in each suit: Mrs. Classen being a
defendant in the Orleans Parish suit, and a plaintiff in
the Jefferson Parish suit. These facts, they argue, should
have defeated the Exception of Res Judicata.

As the Supreme Court explained in Burguieres v. Pollingue,
supra, capacity means “legal capacity,” not whether a party
is a plaintiff or a defendant. The court found that a
previous suit against defendant Pollingue, as an executrix
of an estate, did not make res judicata a second, later
suit, filed by the same plaintiffs, against Pollingue as
curatrix and trustee. The principle of identity of
capacities was imposed, the Burguieries court explained, to
safeguard the integrity of representative functions, a
concept that is not applicable to this suit.

Given the fact that LSA-C.C.P. art. 1061 and LSA-R.S.
13:4231 must be read in pari materia,[fn2] it does not
matter whether Mrs. Classen was a defendant in the Orleans
suit and a plaintiff in the Jefferson Parish suit. C.C.P.
art. 1061 requires her to assert any causes of action
against Mrs. Hofmann and her insurer, which arise out of
the same operative facts, via a compulsory counterclaim in
the Orleans Parish suit. See also Hy-Octane Investments,
Ltd. v. G & B Oil Products, Inc., 97-28 (La.App. 3 Cir.
10/29/97), 702 So.2d 1057.

Nor does the fact that Mr. Classen was not a defendant in
the Orleans suit defeat the Exception of Res Judicata in
the Jefferson Parish suit under the specific facts of this
case. It is true that only the named defendant in the
principal action may proceed by way of a reconventional
demand.[fn3] Mr. Classen was not a named defendant in the
Orleans Parish suit, and, therefore, he could not have
filed a reconventional demand in the Orleans Parish suit.
Page 7 However, Mr. Classen asserted a cause of action
against Mrs. Hofmann for damages for loss of consortium,
which is derivative of and dependent on Mrs. Classen’s
cause of action for personal injuries. Because his cause of
action does not stand alone, he alone could not have filed
an original suit against Mrs. Hofmann and her insurer, in
any parish. Because C.C.P. art. 1061 required Mrs. Classen
to reconvene in the Orleans Parish suit, Mr. Classen’s
remedy was to file an intervention in the same matter to
assert his claim for loss of consortium. This case differs
from Burguieres v. Pollingue, supra, wherein the Exception
of Res Judicata was reversed, in the second suit, as to
Dr. Pollingue. Dr. Pollingue was not a defendant in the
decedent’s children’s first suit against his wife as
executrix, thus causing a lack of identity of parties fatal
to his exception, but the critical issue in the defeat of
his Exception of Res Judicata in the second suit was that
the plaintiffs asserted a cause of action against him,
independently of his wife, for his alleged independent
tortious acts. No such independence exists in a loss of
consortium claim.

Further, we find that Mr. Classen’s property damage claim
is duplicative of his wife’s claim for the same. Their
Jefferson Parish petition clearly alleges that they were
married at all times pertinent thereto, and moreover
identifies the damaged car as “petitioners'” (plural) car.
As it appears that the car was community property, either
party could sue to recover damages to it. LSA-C.C.P. art.
686. Therefore, there was no requirement that Mr. Classen
be joined in the suit to preserve this claim.

The Classens next argue that because the issues were never
litigated in Orleans Parish, but were rather settled with
no findings of fact or adjudication, the Exception of Res
Judicata must be reversed. LSA-C.C.P. Page 8 art. 1673
provides that a judgment of dismissal with prejudice shall
have the effect of a final judgment of absolute dismissal
after trial. Given the clear language of this statute, there
is no requirement that the claims be actually litigated for
the doctrine of res judicata to apply. Leon v. Moore,
98-1792 (La.App. 1 Cir. 4/1/99), 731 So.2d 502. Since the
Orleans Parish suit was dismissed with prejudice, these
principles of res judicata apply. Under the claim
preclusion part of res judicata, a final judgment of
dismissal with prejudice precludes the parties from
relitigating matters that were or could have been raised in
the first action. Blanchard v. ABC Ins. Co., 38,005
(La.App. 2 Cir. 3/3/04), 867 So.2d 901.

The Classens argue that they were not a party to the
settlement in Orleans Parish. We give no moment to this
argument, however. Mrs. Classen was clearly a defendant in
that action, and the dismissal of the action operated in
her favor. Moreover, the settlement documents introduced
into this record show that both Mr. and Mrs. Classen, by
name, were released by the settlement, in addition to their
insurer.

Last, the Classens appeal to equity, arguing the
application of “exceptional circumstances,” under LSA-R.S.
13:4232, that justify relief in their favor. This Court sees
no exceptional circumstances, however, that warrant
application of this statute. The Classens and their
attorney in the Jefferson Parish suit were fully aware of
the existence of the Orleans Parish suit, as is apparent by
correspondence between counsel introduced into this record.
They apparently gambled that their suit would reach
judgment prior to the Orleans suit, and lost.

Accordingly, for the reasons stated above, the judgment of
the trial court is affirmed. Page 9

AFFIRMED

[fn1] The Classens are married and it is presumed that the
auto in question is community property. Their Petition in
Jefferson Parish referred to the “petitioners’ vehicle.”

[fn2] Walker v. Howell, 04-246 (La.App. 3 Cir. 12/15/04),
896 So.2d 110.

[fn3] Baldwin v. Antin, 95-0714 (La.App. 1 Cir. 2/23/96),
673 So.2d 1049.