STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-657
JOHN AARON DUHON, ET AL
VERSUS
LAFAYETTE CONSOLIDATED GOVERNMENT
************** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER 2004-3599 HONORABLE PATRICK MICHOT, PRESIDING
************* SYLVIA R. COOKS JUDGE **************
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese, Judges.
REVERSED AND REMANDED.
Hawkins & Villemarette, L.L.C. Scott M. Hawkins Chris Villemarette 102 Asma Boulevard Saloom III, Suite 110 Lafayette, Louisiana 70508 (337) 233-8005 COUNSEL FOR PLAINTIFFS/APPELLANTS: John Aaron Duhon, et al.
Roy, Bivins, Judice, Roberts & Wartelle Patrick M. Wartelle Post Office Drawer Z Lafayette, Louisiana 70502 (337) 233-7430 COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government COOKS, Judge.
STATEMENT OF THE CASE
This case arises out of a political dispute between City-Parish Councilman
Lenwood Broussard and Linda Navarre Duhon, one of the thirty-five plaintiffs in this
suit. Mr. Broussard and Mrs. Duhon have traveled a long and litigious road together
beginning in 1999 when Mrs. Duhon was a candidate for the council seat held by Mr.
Broussard. The following is a brief legal history of this dispute.
In September 1999, Mr. Broussard filed an action in district court objecting
to the candidacy of Mrs. Duhon. The issue in that suit was whether Mrs. Duhon was
a resident of Lafayette Parish and, thereby, eligible to run as a candidate for the
Lafayette City-Parish Council in the primary election on October 23, 1999. The
district court found Mrs. Duhon’s residence, located at 101 Adola Road, Maurice,
Louisiana, was within the boundary of Vermilion Parish and, therefore, Mrs. Duhon
was ineligible to run for a seat on the Lafayette City-Parish Council. The trial court
relied on the testimony of the parish engineer for Vermilion Parish, the assistant
director of Public Works for Lafayette Parish and a licensed land surveyor. These
witnesses testified, based on parish maps, that 101 Adola Road was shown to be
located within Vermilion Parish. This court affirmed, specifically leaving open the
question as to the exact location of the boundary between the two parishes. This
court stated:
Defendant also raised the exception of indispensable party arguing that the Lafayette Consolidated Government had an indispensable interest in the establishment of the boundary line between Lafayette and Vermilion Parishes. In the present case the trial court did not establish or change the parish boundary line, it merely made a factual determination based on expert testimony that Ms. Duhon’s home was located in Vermilion Parish.
Broussard v. Duhon, 99-1426, p. 5 (La.App. 3 Cir. 9/21/99), 748 So.2d 14, 16, writ denied, 747 So.2d 1129 (La. 1999).
2 Subsequent to the appellate court decision, the State Tax Commission deleted
John Aaron and Linda Navarre Duhon’s residence from the tax rolls of Lafayette
Parish, indicating on the form the Duhon’s property was located in Vermilion Parish.
In response, Mr. Duhon, along with twenty-four of his neighbors, filed a lawsuit in
the United States District Court for the Western District of Louisiana. Named as
Defendants were members of the Lafayette City-Parish Consolidated Government,
members of the Vermilion Parish Police Jury, the Vermilion and Lafayette Parish tax
assessors and registrars of voters, the State Land Office, the State Attorney General,
and the Louisiana Tax Commissioner. The Plaintiffs asserted federal question
jurisdiction pursuant to 42 U.S.C. § 1983. Specifically, the Plaintiffs alleged the
Defendants violated their constitutional rights under the Fourteenth Amendment’s
Due Process Clause by conspiring to change the boundary line between Lafayette and
Vermilion Parishes, thereby “exiling” them from Lafayette Parish and removing their
names from the tax assessment and voter registration rolls of Lafayette Parish. The
Plaintiffs asserted an Equal Protection violation “in that they are now being treated
as residents of Vermilion Parish because Linda Navarre Duhon exercised her
constitutional right to run for elective office within Lafayette.” Additionally, the
Plaintiffs alleged a violation of their First Amendment “rights to freedom of
association within the political process and the school system of Lafayette Parish.”
The Plaintiffs alleged their “exile” was “for purely political reasons” and was done
“in direct contravention of Louisiana statutes and constitutional provisions which
establish substantive and procedural rights respecting the change of parish
boundaries, and is a response to the qualification of Linda Duhon.” The Plaintiffs
requested injunctive relief and damages and sought to have their names reinstated on
the Lafayette Parish tax assessment and voter registration rolls. The Defendants
3 argued neither the Constitution nor any federal statutes were violated, and therefore,
the federal court lacks subject matter jurisdiction. The federal court agreed and
dismissed the lawsuit, stating:
Plaintiffs’ allegations of constitutional violations of due process, equal protection and freedom of association are without merit. Because the plaintiffs have not alleged specific facts which constitute either a violation of clearly established constitutional rights under current law or under the law as clearly established at the time of the events in question, this Court has no subject matter jurisdiction.
Duhon v. Consolidated Government of Lafayette, et al., Docket No. 00-CV-1690 (W.D.La. 3/27/01).
A judgment was signed in accordance with the decision dismissing with
prejudice the Plaintiffs’ claims under Title 42 §1983 and dismissing without prejudice
the Plaintiffs’ state law claims. The judgment of the federal district court was
affirmed on appeal. Duhon v. Consolidated Government of Lafayette, 31 Fed. Appx.
838, C.A. 5 (La.), 2002, cert. denied, 536 U.S. 940, 122 S.Ct. 2621. Despite the lack
of subject matter jurisdiction, the federal court opinion discussed in detail one of the
issues raised by Plaintiffs, namely whether the Lafayette Consolidated Government
followed the requirements of state law in establishing the boundary. This argument
would be raised later in the Plaintiffs’ state court suit for an injunction and
declaratory judgment.
The Plaintiffs asserted two state statutes were at issue, La.R.S. 33:141 and
La.R.S. 50:221. Louisiana Revised Statutes 33:141 mandates the procedure when a
parish is changing an existing boundary, while Louisiana Revised Statutes 50:221-
224 mandates the procedure when a parish is merely seeking to clarify an already
existing boundary.
Louisiana Revised Statutes 33:141 provides, in relevant part:
Whenever the police jury of any parish passes an ordinance changing a boundary line between it and any adjoining parish, it shall serve the
4 president of the police jury of the adjoining parish with a copy of the ordinance. If the police jury of the second parish concurs in the object and purposes of the ordinance, both police juries shall pass ordinances providing for special elections to be held in both parishes within 60 days from the passage of the ordinances.
Louisiana Revised Statutes 50:221 provides, in relevant part:
Whenever the governing authority of any parish desires to ascertain and fix the boundary line of any adjoining parish, it shall pass an ordinance to that effect fixing the time and place for starting the running of the boundary. It shall then serve the presiding officer of the governing authority of the adjoining parish with a copy of the ordinance and with notice, at lease six months in advance, of the time and place of starting the running of the boundary.
The federal court found La.R.S. 33:141 was inapplicable because the boundary
between the parishes was never established by ground survey and the two parishes
were seeking to clarify the boundary rather than change an existing boundary.
Therefore, the court found Lafayette Parish and Vermilion Parish complied with the
requirements of La.R.S.50:221. However, since the federal court ultimately found
it lacked subject matter jurisdiction to hear the case, any discussion relative to this
issue is non-binding dicta.
On April 16, 2002, Ordinance No. 088-2002 was adopted by the Lafayette
Consolidated Government, (Vermilion Parish adopted similar ordinance on May 6,
2002) authorizing the State Land Office to re-establish the location of the parish
boundary. In the ordinance, Lafayette Parish agreed to accept the findings of the
State Land Office’s survey and both parishes agreed to appropriate funds to pay for
the survey. Additionally, the ordinance authorized the City-Parish President to enter
into a Joint Cooperative Endeavor Agreement and Intergovernmental Agreement with
the State Division of Administration State Land Office and the Vermilion Parish
Police Jury for the surveying and re-establishing of the boundary line. On April 19,
2002, a Joint Cooperative Endeavor Agreement and Intergovernmental Agreement
5 was signed by Walter Comeaux of Lafayette Parish and Edval Simon of Vermilion
Parish.
Upon completion of the survey by the State Land Office, on December 16,
2003, the Lafayette City-Parish Government, adopted Ordinance No. 0-307-2003.
This ordinance accepted the findings and survey of the State Land Office which
placed Adola Road within Vermilion Parish and directed the city-parish president to
sign any documents finalizing the boundary.
On December 15, 2003, the Plaintiffs filed a Petition for Injunctive Relief in
the Fifteenth Judicial District Court for the Parish of Lafayette, Docket Number 2003-
6593, seeking to prohibit the Lafayette City-Parish Council from voting on and
approving the State Land Office survey which re-established the boundary between
Lafayette and Vermilion Parishes. The petition alleged: “On Tuesday, December 16,
2003, the Lafayette City-Parish Council is scheduled to vote and approve ordinance
number 0-307-2003 which would move the boundary or as stated in the ordinance ‘re-
establish’ the boundary between Lafayette and Vermilion Parish such that these
petitioners would be permanently exiled from Lafayette Parish.” Further, the petition
alleged, the petitioners would suffer irreparable damage should an injunction not
issue. The Plaintiffs amended the petition seeking a declaratory judgment that the
ordinance violates the Louisiana Constitution because “only the legislature may
change parish boundaries and then only on approval by two-thirds vote of the electors
in the each parish affected by the change in boundary.” This argument, which relies
on La.R.S. 33:141, was raised in the federal court suit.
On December 16, 2003, the trial court enjoined the ordinance from taking
effect until a hearing was held on the Petition for Injunctive Relief. Following the
January 12, 2004 hearing, the trial court rescinded the temporary restraining order and
6 denied the preliminary and permanent injunctions, thereby allowing Lafayette Parish
Consolidated Government to move forward. On January 22, 2004, Ordinance No. 0-
307-2003 became law without the signature of the City-Parish President.
On July 22, 2004, the Plaintiffs filed the present suit against the Lafayette
Consolidated Government and the State Land Office in the Fifteenth Judicial District
Court, Docket Number 2004-3599, entitled Petition to Revoke, Rescind and Reform.
The petition alleges gross error on the part of the State Land Office. Plaintiffs allege
the State Land Office relied on incorrect and inaccurate maps and surveys when
determining the boundary and ignored relevant documents and data in its possession
which would have placed Adola Road within Lafayette Parish. Additionally, the
petition alleges fraud by the Lafayette City-Parish Consolidated Government in
accepting the Lafayette-Vermilion boundary line drawn by the State Land Office.
The Lafayette City-Parish Consolidated Government filed exceptions of vagueness,
non-joinder of a party and res judicata. A hearing was held on the City’s exceptions
on September 20, 2004. The trial court held the suit was barred by res judicata,
stating:
According to the Code of Civil Procedure Article 425, “A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” This should have been brought up in a prior, and I’m going to grant the exception of res judicata.
The Plaintiffs filed this appeal. For the reasons assigned below, we reverse the
decision of the trial court, and find this suit is not barred by the doctrine of res
judicata. We remand for further proceedings.
LAW AND DISCUSSION
Louisiana Revised Statutes 13:4231 provides, in relevant part:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct
7 review, to the following extent: (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.
Louisiana Code of Civil Procedure Article 425(A) provides, in relevant part:
A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
In Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, the
Louisiana Supreme Court discussed the revisions to the res judicata statute and the
requirements for finding a suit is barred by res judicata.
In Burguieres, Mr. Burguieres died leaving an olographic testament which was
probated. The sister of the deceased, Mrs. Pollingue, was named as executrix. The
decedent’s children filed a petition to nullify the will and remove the executrix. The
trial court annulled the testament, removed the executrix and appointed the decedent’s
son as administrator. The court of appeal affirmed the judgment.
The children of the decedent filed a second suit for damages and attorney’s fees
against Mrs. Pollingue, the former executrix, alleging breach of the fiduciary
obligations as trustee. The executrix filed an exception of res judicata arguing the
second lawsuit arose out of the same transaction and occurrence as the first.
Therefore, plaintiffs were obligated to bring both actions at the same time and, thus,
the second suit was barred by res judicata. The trial court denied the exception,
reasoning the first suit sought to annul the testament while the present suit sought
8 damages for breach of fiduciary duty and attorney’s fees. The appellate court
reversed the judgment of the trial court finding the allegations of the second suit were
connected to and arose out of the succession proceedings in the first suit. The
Louisiana Supreme Court granted writs and held the second suit was not barred,
Most of the controversy and confusion in Louisiana surrounding res judicata prior to the 1990 amendment concerned whether there was an “identity of cause.” With the 1990 amendment to the res judicata statute, however, the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action. Avenue Plaza at p. 6, 676 So.2d at 1080. See also La.R.S. 13:4231 cmt. a (1990). While this is the central inquiry under the current statute, it is not the only inquiry. A reading of 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 occurrences that was the subject matter of the first litigation.
Id. at 1053 (emphasis added).
The supreme court found, although the cause of action asserted in the second
suit arose out of the transaction or occurrences that was the subject matter of the first
litigation, a defendant must additionally meet the other requirements under La.R.S.
13:4231 in order for res judicata to apply. In that case, the court held Mrs. Pollingue
did not appear in the same capacity in the second suit as in the first; therefore, under
La.R.S. 13:4231, “[b]ecause of this difference in capacities, there is a lack of identity
of the parties between the two suits” and the requirements of the statute are not met.
Id. at 1056.
In the present suit, the Defendants contend “[a]t the time that the plaintiffs filed
that second suit [for injunction], which was heard by Judge Duplantier, they were
aware that the State Land Office had done the survey and had prepared a map. The
9 map was to be presented at a public City-Parish Council meeting with the boundaries
clearly marked. Despite this knowledge, they did not challenge the accuracy of the
map or claim that fraud was involved in its preparation.” Therefore, the Defendants
argue, under the statute the Plaintiffs were bound to assert any and all causes of
actions against Lafayette Consolidated Government and the State Land Office which
existed at the time of the suit for an injunction. Since the Plaintiffs failed to assert a
cause of action challenging the accuracy of the maps or fraud on the part of the City,
then, under the statute any subsequent suit is barred by res judicata. We will examine
the Defendants’ argument in light of the requirements articulated in Burguieres.
The first state court lawsuit litigated the eligibility of Mrs. Duhon as a
candidate for a seat on the Lafayette City-Parish Council. This court affirmed the
factual determination of the trial court that Ms. Duhon’s home was located in
Vermilion Parish. The issues in the present suit were not raised or litigated in the
previous state court action. Moreover, the Lafayette Consolidated Government and
the State Land Office were not parties to that suit. It was only after the state court
judgment was final did Lafayette Consolidated Government initiate steps to
determine the boundary line between Lafayette and Vermilion Parishes by contracting
with the State Land Office to perform a survey. Moreover, the Louisiana Tax
Assessor and Registrar did not remove the Plaintiffs from the roles until after the state
court decision was final.
The Plaintiffs then brought suit in federal court alleging violations of their
constitutional rights. The federal court found it did not have subject matter
jurisdiction because no constitutional provision or federal statute were violated.
Therefore, issues raised in the present suit were not litigated or decided in the federal
court suit.
10 The Plaintiffs then filed a Petition for Injunctive Relief, seeking to enjoin the
ordinance from taking effect and alleging permanent, irreparable injury. The petition
was amended, seeking a declaratory judgment that Ordinance 0-307-2003 was
unconstitutional because under state law a change in parish boundary lines must be
approved by a vote of the electors in each affected parish. Following a hearing, the
trial court rescinded the temporary restraining order and denied the permanent
injunction. The judgment is silent with regard to the Plaintiffs’ request for a
When a judgment is silent as to part of the relief requested, the judgment is
deemed to have denied that relief. Guaranty Bank & Trust Co. of Alexandria, La. v.
Carter, 394 So.2d 701 (La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981).
Therefore, Plaintiffs’ claim for declaratory judgment that Ordinance 0-307-2003 is
unconstitutional is deemed denied because the trial court did not address it in the
judgment denying their requests for injunctive relief, and their failure to appeal the
denial resulted in a final judgment. Id. See also La.Code Civ.P. art. 1871.
However, the judgment of the trial court denying the injunction and allowing
the ordinance to become law is an interlocutory ruling and not a determination on the
merits. Jo Ellen Smith Psychiatric Hospital v. Harrell, 546 So.2d 886 (La.App. 1 Cir.
1989). Therefore, the primary requirement of the statute, namely a final judgment on
the merits, is not present. Moreover, under Burguieres, in order for res judicata to bar
a subsequent suit, the cause of action asserted in the second action must have existed
at the time of the final judgment in the first litigation. In this case, the Plaintiffs’
claims against the State Land Office and the Lafayette Consolidated Government for
fraud or inaccuracy in preparation of the survey did not arise until the ordinance took
effect and the survey by the State Land Office was finally adopted. See Tower
11 Partners, L.L.C. v. Rao, 03-665 (La.App. 4 Cir. 1/21/04), 869 So.2d 126, writ denied,
869 So.2d 889, 04-445 (La. 4/2/04). When the Plaintiffs were unsuccessful in
preventing the ordinance from taking effect, they filed suit claiming fraud or mistake
on the part of the government officials. Id. We find the present suit is not barred by
res judicata. Therefore, the decision of the trial is reversed and the matter is
remanded for further proceedings.
DECREE
Based on the foregoing review of the evidence, the decision of the trial court
is reversed and the matter is remanded for further proceedings.