Kimball v. Luhr Bros. Inc.

101 So. 3d 1128, 12 La.App. 3 Cir. 518, 2012 La. App. LEXIS 1415, 2012 WL 5417338
CourtLouisiana Court of Appeal
DecidedNovember 7, 2012
DocketNo. 12-518
StatusPublished

This text of 101 So. 3d 1128 (Kimball v. Luhr Bros. Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimball v. Luhr Bros. Inc., 101 So. 3d 1128, 12 La.App. 3 Cir. 518, 2012 La. App. LEXIS 1415, 2012 WL 5417338 (La. Ct. App. 2012).

Opinion

GENOVESE, Judge.

Bln this property damage lawsuit, Plaintiffs, C.F. Kimball, III and Linda R. Kim-ball, appeal the trial court’s grant of exceptions of res judicata filed by Defendants, Omni Marine Transportation, Inc. and Luhr Bros. Inc. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The Kimballs initially filed suit against Luhr Bros. Inc. (Luhr Bros.)1 d/b/a Con[1129]*1129struction Aggregate for damages to their property located along the Vermillion River in Lafayette Parish. They later amended their lawsuit to name Omni Marine Transportation, Inc. (Omni) a defendant. Luhr Bros, is the owner of a shell yard located directly across the river from the Kimballs’ property. Omni is the owner of vessels that make deliveries to the Luhr Bros.’ facility.

In their Petition for Damages, the Kim-balls contend that Omni and Luhr Bros, “have been actively engaged in activities causing the destruction of certain property, specifically, a bulkhead, belonging to the [Kimballs], all as a result of their business activities on and adjacent to the Vermilion River and during the course and scope of their businesses.” In response, Omni and Luhr Bros, filed responsive pleadings, including exceptions of res judi-cata, an answer, and a reconventional demand against the Kimballs.

In their exceptions of res judicata, Omni and Luhr Bros, asserted that prior litigation between the parties resulted in the execution of a Receipt, Release, and Indemnity Agreement (the Release), which they claim bars the current litigation. |2The exceptions were heard by the trial court on February 27, 2012.2 The trial court granted the exceptions and dismissed the claims of the Kimballs, with prejudice. The Kimballs have appealed.

ASSIGNMENTS OF ERROR

The Kimballs assert on appeal that “[t]he [trial] [c]ourt committed manifest error in granting the [e]xception[s] of [r]es [j]udieata because [they] did not release [Omni and Luhr Bros.] from damaging a structure that did not even exist at the time of execution of the release.”

LAW AND DISCUSSION

Standard of Review

The standard of review to be applied in this case is that of manifest error. Steckler v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161, writs denied, 11-2639, 11-2677 (La.2/10/12), 80 So.3d 477, 487. In Steckler, 76 So.3d at 164, this court stated as follows:

“The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties.” Jones ex rel. Jones v. GEO Group, Inc., 08-1276, p. 4 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1024 (citing State ex rel. Sabine River Auth. v. Meyer & Assocs. Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585).

Res Judicata

The doctrine of res judicata is codified in La.R.S. 13:4231, which provides:

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:
[1130]*1130(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.
|s(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.

Our Louisiana Supreme Court, in Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053, set forth the following five requisite elements for a matter to be considered res judicata:

(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.

The Kimballs do not contest the fact that the instant litigation satisfies the first, second, third, and fifth Burguieres elements. Instead, they ask this court “to focus on criteria number four.” The Kim-balls argue that “[tjhere simply is no way that the cause or causes of action asserted in the second suit existed at the time of the final judgment of the first suit.” At the time the release was executed, March 25, 2002, the bulkhead was not yet in existence; therefore, they conclude that the cause of action in the instant suit, filed February 11, 2008, could not exist in 2002.

The jurisprudence is clear that a release of claims given in exchange for consideration, is sufficient basis for an exception of res judicata.

In Bailey v. Martin Brower Co., 94-1179, p. 3 (La.App. 1 Cir. 4/7/95), 658 So.2d 1299, 1301, the court succinctly summarized the application of res judi-cata to releases as follows:

While the doctrine of res judicata is ordinarily premised on a final judgment, it also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the 14parties. A release of claim or claims, when given in exchange for consideration, is a compromise and constitutes the basis for a plea of res judicata. [Matthew v. Melton Truck Lines, Inc., 310 So.2d 691, 693 (La.App. 1st Cir.1975) ]; Spencer v. Howard, Weil, Labouisse & Friedrichs, Inc., 543 So.2d 547, 550 (La.App. 4th Cir.), writ denied, 546 So.2d 1217 (La.1989); Thompson v. Bank of New Orleans and Trust Company, 422 So.2d 230, 231 (La.App. 4th Cir.1982). However, the authority of the thing adjudged resulting from the release extends to only those matters the parties expressly intended to settle. Matthew v. Melton Truck Lines, Inc., 310 So.2d at 693.

Sonnier v. La. Farm Bureau Mut. Ins. Co., 05-1006, pp. 2-3 (La.App. 3 Cir. 3/1/06), 924 So.2d 419, 420-21, writ denied, 06-704 (La.5/26/06), 930 So.2d 33. Thus, whether the present exceptions are meritorious hinge on the language of the Release. Although we agree with the Kimballs that “a general release will not bar recovery for those aspects of a claim not intended to be [1131]*1131covered by a release[,]” such is not the case in the language of the Release between the parties.

In the instant matter, the Release (emphasis added) at issue contains the following language:

THEREFORE, in consideration of the payment to C.F. Kimball, III, and Linda R.

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Related

Bailey v. Martin Brower Co.
658 So. 2d 1299 (Louisiana Court of Appeal, 1995)
Jones Ex Rel. Jones v. GEO Group, Inc.
6 So. 3d 1021 (Louisiana Court of Appeal, 2009)
Burguieres v. Pollingue
843 So. 2d 1049 (Supreme Court of Louisiana, 2003)
Matthew v. Melton Truck Lines, Inc.
310 So. 2d 691 (Louisiana Court of Appeal, 1975)
Spencer v. HOWARD, WEIL
543 So. 2d 547 (Louisiana Court of Appeal, 1989)
Sonnier v. FARM BUREAU MUT. INS. CO.
924 So. 2d 419 (Louisiana Court of Appeal, 2006)
Thompson v. BANK OF NEW ORLEANS, ETC.
422 So. 2d 230 (Louisiana Court of Appeal, 1982)
Steckler v. Lafayette Consolidated Government
76 So. 3d 161 (Louisiana Court of Appeal, 2011)
State ex rel. Sabine River Authority v. Meyer & Associates, Inc.
967 So. 2d 585 (Louisiana Court of Appeal, 2007)

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Bluebook (online)
101 So. 3d 1128, 12 La.App. 3 Cir. 518, 2012 La. App. LEXIS 1415, 2012 WL 5417338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimball-v-luhr-bros-inc-lactapp-2012.