McKamey v. New Orleans Public Facility Management, Inc.

102 So. 3d 222, 2012 La.App. 4 Cir. 0716, 2012 WL 4125679, 2012 La. App. LEXIS 1166
CourtLouisiana Court of Appeal
DecidedSeptember 19, 2012
DocketNo. 2012-CA-0716
StatusPublished
Cited by6 cases

This text of 102 So. 3d 222 (McKamey v. New Orleans Public Facility Management, 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
McKamey v. New Orleans Public Facility Management, Inc., 102 So. 3d 222, 2012 La.App. 4 Cir. 0716, 2012 WL 4125679, 2012 La. App. LEXIS 1166 (La. Ct. App. 2012).

Opinions

MAX N. TOBIAS, JR., Judge.

|TIn this appeal, the plaintiff/appellant, Helen McKamey, seeks review of the trial court judgment granting the exceptions of no cause of action and res judicata filed by the defendants/appellees, New Orleans Public Facility Management, Inc., Ernest N. Morial New Orleans Exhibition Hall Authority, and Travelers Indemnity Company. For the following reasons, we affirm.

I.

Helen McKamey (“McKamey”) filed a petition for damages on 26 March 2008 alleging that she sustained injuries on 27 March 2007 while carrying items from an exhibition hall to her vehicle when she tripped over carpet which had been partially rolled-up. She alleged that the ven[224]*224dors in the hall were still breaking down their booths from a convention which had just ended at the time of her accident. She alleged that the New Orleans Public Facility Management, Inc. (“NOPFM”) and Ernest N. Morial New Orleans Exhibition Hall Authority (“MNOEHA”) were responsible for the exhibition hall and accordingly her damages.

Citation and service were made upon NOPFM and MNOEHA; they filed an answer and discovery commenced. Subsequently, NOPFM and MNOEHA filed a | ¡motion for summary judgment. The court held a hearing on the motion for summary judgment on 1 July 2011. However, on 30 June 2011, McKamey obtained leave of court and did in fact file a first supplemental and amending petition naming four additional defendants and made further allegations against NOPFM and MNOEHA. During the hearing, McKa-mey’s counsel indicated that a first supplemental and amending petition had been filed the previous day, but had not yet been served upon the defendants. The trial court (a) granted the motion for summary judgment, dismissing the original petition against NOPFM and MNOEHA with prejudice, and (b) preserved the right of McKamey to proceed on the first supplemental and amending petition; the court commemorated its ruling by a judgment dated 18 July 2011.1 No appeal was taken from that judgment.

The first supplemental and amending petition added as defendants the American College of Cardiology (“ACC”), Global Experience Specialists, Inc. (“GES”), “Travelers Indemnity Insurance Company”2 (“Travelers”), and Greenwich Indemnity Insurance Company (“GIIC”). Further, McKamey asserted an additional cause of action (discussed infra) against NOPFM and MNOEHA in the supplementation/amendment, alleging that:

As the petitioner placed the defendant facility management on notice of her accident and claim immediately after it occurred, and as these newly named defendants were known by lessor FACILITY MANAGEMENT [NOPFM] to have leased these premises and to have via contract in that lease to have indemnified that lessor for claims such as your petitioner’s here, your petitioner HELEN McKAMEY asserts here that timely and proper notice of this claim and her losses were made to all defendants, and that the ^recent addition of these newly named defendants are not to be seen as untimely. Further, in the event that the naming of these defendants are deemed untimely, then original defendant FACILITY MANAGEMENT should properly be held liable for all losses and damages due the petitioner herein, for their failure to properly notice the additional defendants of the petitioner’s claims while in their knowledge of the additional defendants being contractually liable in providing indemnity herein.

Collectively, NOPFM, MNOEHA, and Travelers filed exceptions of no cause of action and res judicata. After a hearing, the trial court granted the exceptions of no cause of action and res judicata and dismissed NOPFM, MNOEHA, and Travelers from the suit with prejudice by judgment signed on 2 December 2011.

McKamey timely filed the instant appeal of that December judgment.

[225]*225II.

On appeal, McKamey asserts three errors.

A.

We first discuss McKamey’s argument that the court erred in granting the exception of res judicata.

Our standard of review of an exception of res judicata3 is whether the trial court’s decision is legally correct or incorrect. Myers v. National Union Fire Ins., 09-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210, citing Ins. Co. of North America v. Louisiana Power & Light, 08-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267. The doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Id., citing Ins. Co. of North America, 08-1315, p. 7, 10 So.3d at 268.

Five elements must be satisfied for a finding that a second action is precluded by 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 the 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. Chevron USA, Inc. v. State, 07-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194; Myers, 09-1517, p. 6, 43 So.3d at 211.

McKamey argues that the newly asserted claim against NOPFM and MNOEHA (and ergo Travelers) did not exist prior to the time of the filing of the first supplemental and amending petition. Thus she concludes that the exception of res judica-ta was improperly granted by the trial court. McKamey cites no statutory law or jurisprudence in support of her argument.

No dispute exists that the 18 July 2011 judgment granting the motion for summary judgment was a final appealable judgment and that two of the parties (NOPFM and MNOEHA) are the same in both the original petition and the first supplemental and amending petition. Additionally, the causes of action asserted in |fithe first supplemental and amending petition arise out of the transaction or occurrence that is the subject matter of the original petition.4 What is contested is whether the new causes of action existed and were properly ruled upon at the time of the judgment granting NOPFM’s and MNOEHA’s motion for summary judgment.

The judgment granting the motion for summary judgment was signed on 18 July 2011. We acknowledge that the alleged [226]*226additional causes of action existed at the time of the ruling upon and rendition of that final judgment. The 18 July 2011 judgment granting the motion for summary judgment, by its literal language, can be read to have dismissed the alleged new causes of action asserted against NOPFM and MNOEHA in the first supplemental and amending petition when the trial court dismissed McKamey’s claims against NOPFM and MNOEHA with prejudice. La. R.S. 13:4231.

However, the issue in the motion for summary judgment was whether McKa-mey could recover from NOPFM and MNOEHA in light of the lease and indemnity agreement between NOPFM and ACC and GES. The motion for summary judgment did not address McKamey’s new assertions filed the day before the hearing on the motion that she sustained damages because NOPFM and MNOEHA did not disclose the identities of the other co-defendants.

We do not read the 18 July 2011 judgment as dismissing McKamey’s claims for the new allegations first asserted on 30 June 2011.

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102 So. 3d 222, 2012 La.App. 4 Cir. 0716, 2012 WL 4125679, 2012 La. App. LEXIS 1166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckamey-v-new-orleans-public-facility-management-inc-lactapp-2012.