Shearman v. Asher

851 So. 2d 1226, 2003 La.App. 4 Cir. 0152, 2003 La. App. LEXIS 2198, 2003 WL 21763609
CourtLouisiana Court of Appeal
DecidedJuly 2, 2003
DocketNo. 2003-CA-0152
StatusPublished
Cited by2 cases

This text of 851 So. 2d 1226 (Shearman v. Asher) 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
Shearman v. Asher, 851 So. 2d 1226, 2003 La.App. 4 Cir. 0152, 2003 La. App. LEXIS 2198, 2003 WL 21763609 (La. Ct. App. 2003).

Opinion

| PATRICIA RIVET MURRAY, Judge.

This is an accounting malpractice action. The plaintiff, Robert Shearman, appeals from the trial court’s judgment granting the exception of res judicata filed by the defendants, Harold Asher and Katz & Asher, Ltd. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Robert F. Shearman, R. Ray Orrill, Jr., and Leslie Cordell decided to dissolve and liquidate the law firm of Or-rill, Shearman & Cordell, L.L.C. (“law firm”). Initially, Mr. Orrill acted as liquidator. On January 13, 2000, Harold Asher was appointed as judicial liquidator for the law firm in an action brought by the law firm and Mr. Orrill against Mr. Shearman (“liquidation action”).1 In the liquidation action, Mr. Shearman alleged that Mr. Or-rill was not an owner of the law firm and was responsible for financial irregularities during the liquidation of the law firm.

On February 9, 2000, Mr. Shearman and Mr. Orrill executed an indemnity agreement, which stated:

| PHarold Asher has the right as liquidator to make decisions pursuant to his duties under Title 12 of the Louisiana Revised Statutes. R. Ray Orrill and Robert F. Shearman agree that if they do not agree with Mr. Asher’s actions that they will have the right to challenge, via appropriate motion, Mr. Ash-er’s actions only against each other. Robert F. Shearman and R. Ray Orrill hereby release and agree to indemnify Mr. Asher for any of his actions as liquidator. Any challenge to an action of Mr. Asher will only involve Mr. Asher as a witness, if at all. Orrill and Shear-man agree that all matters pertaining to the liquidation of Orrill, Shearman & Cordell, L.L.C. will be subject to the jurisdiction of the matter No. 99-11819, Division “N” in Civil District Court for Orleans Parish as captioned above.

On June 7, 2000, Mr. Shearman agreed to a consent judgment in the liquidation action, which stated in pertinent part:

1. Any and all claims, whether currently existing or arising in the future, regardless of whether such claims are contained in any ongoing suits, that exist by, among or between Kevin Shearman, Robert Shearman, Shearman & Shear-man, Ray Orrill, Leslie Cordell, Orrill & Cordell, L.L.C., Orrill, Shearman & Cor-dell, L.L.C. and/or their agents, attorneys or heirs, are hereby forever and finally settled, including, but not limited to, all claims which are or could have been brought in the following lawsuits:
a. Orrill, et al v. Shearman, et al, Case No. 99-11819, Division “N”, Civil District Court for the Parish of Orleans, State of Louisiana....
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j. Both cases mentioned in Number 1 above specifically shall be dismissed with prejudice immediately without any further actions being taken by any party in those proceedings and without any responsibility or obligation of Harold Asher to report as a judicial liquidator to Division “N”....

On August 26, 2002, Mr. Shearman brought suit against Mr. Asher and his accounting firm, Katz & Asher, Ltd. (“accounting firm”), for actions taken by Mr. Asher in his role as court appointed liquidator of the law firm (“accounting malpractice suit”). On October 14, 2002, after [1228]*1228receiving an extension of time to file a responsive pleading, Mr. Asher and his accounting firm filed a peremptory exception of res judicata. Mr. Asher argued that in the liquidation action, Mr. Shear-man agreed to release and indemnify Mr. Asher “for any of his actions as a I liquidator.” Mr. Asher also argued that on June 8, 2000, Mr. Shearman entered into a consent judgment, in which he compromised and settled all past and future claims against Mr. Asher as the liquidator of the law firm in the liquidation action.

On December 6, 2002, following a hearing, the trial court granted the exception of res judicata and dismissed the accounting malpractice suit. On December 20, 2002, the trial court issued its reasons for judgment, stating that res judicata barred Mr. Shearman’s claims against Mr. Asher and his accounting firm because the claims were previously “compromised, settled and/or released.” This appeal followed.

ANALYSIS

Mr. Shearman first argues that the trial court erred in granting the exception of res judicata because Mr. Asher and his accounting firm were not parties to the liquidation action and because the exception was granted without the benefit of discovery or trial. Second, he argues that the trial court erred in ruling that Mr. Asher was released from any liability in the underlying litigation for his role as court appointed liquidator of the law firm.

Mr. Asher counters that he was a third party beneficiary to the indemnity agreement signed by Mr. Shearman, which released him from all claims arising from his actions as judicial liquidator. Mr. Asher further counters the consent judgment resolved the same issues as raised by Mr. Shearman in his suit against Mr. Asher, ie., the accounting malpractice suit; thus, the trial court properly found Mr. Shear-man’s suit barred by res judicata.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. La.R.S. |413:4231; La. C.C.P. art. 425. Explaining the current doctrine of res judicata, the Louisiana Supreme Court stated:

In 1990, the Legislature amended LSA-R.S. 13:4281, the Louisiana res judicata statute. Terrebonne Fuel [ & Lube v. Placid Refining, 95-0654, 95-0671, pp. 11-12 (La.1/16/96); 666 So.2d 624, 631] addressed the amended statute. The original Louisiana doctrine of res judica-ta was based on a correctness presumption rather than a cause of action’s extin-guishment: a decided case precluded a second suit only if the prior suit involved the same parties, the same cause, and the same object of demand. Terrebonne Fuel at 12; 666 So.2d at 632. However, the amended res judicata statute’s chief inquiry is whether the second action asserts a cause of action which arises out of the transaction which was the subject matter of the first action. Id.

Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 6 (La.7/2/96), 676 So.2d 1077, 1080. Explaining the exceptions to res judicata, the Court stated:

Although rarely mentioned, exceptions exist to the common law theory of res judicata, as noted in the Restatement (Second) of Judgments, § 26 (1982). These exceptions involve “exceptional circumstances” as where (a) the parties have agreed that the plaintiff may split his claim, or the defendant has acquiesced therein; (b) the court in the first action has expressly reserved the plaintiffs right to maintain the second action; (c) there are restrictions on the subject matter jurisdiction of the courts; (d) the judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory [1229]*1229or constitutional scheme; (e) for policy reasons; or (f) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Restatement (Second) of Judgments, § 26 (1982), pg 233-234.[FN4]
FN4. When Louisiana law on res judi-cata was amended by enacting La.R.S. 13:4231, effective January 1, 1991, a companion statute, La.R.S.

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Bluebook (online)
851 So. 2d 1226, 2003 La.App. 4 Cir. 0152, 2003 La. App. LEXIS 2198, 2003 WL 21763609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shearman-v-asher-lactapp-2003.