Tassin v. Sayes

386 So. 2d 995
CourtLouisiana Court of Appeal
DecidedMay 21, 1980
Docket7671
StatusPublished
Cited by5 cases

This text of 386 So. 2d 995 (Tassin v. Sayes) 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
Tassin v. Sayes, 386 So. 2d 995 (La. Ct. App. 1980).

Opinion

386 So.2d 995 (1980)

Alton TASSIN and Ray Normand, Plaintiffs and Appellants,
v.
Malcolm SAYES, Defendant and Appellee.

No. 7671.

Court of Appeal of Louisiana, Third Circuit.

May 21, 1980.

*996 Donald R. Wilson, Marksville, for plaintiffs and appellants.

Ben C. Bennett, Jr., Marksville, for defendant and appellee.

Before CULPEPPER, CUTRER and DOUCET, JJ.

CULPEPPER, Judge.

This is an appeal from a judgment sustaining an Exception of Res Judicata based on a prior judgment of this Court. In Tassin v. Rhynes, 366 So.2d 580 (3rd Cir. 1978), plaintiffs, Alton Tassin and Roy J. Normand, filed an action captioned "Suit For Declaratory Judgment Establishing Title And Boundaries." They alleged they were owners of certain property, described as accretion, in Section 29, Township 3 North, Range 4 East, Avoyelles Parish, Louisiana. Defendants were C. A. Rhynes, Malcolm Sayes and Foster J. Johnson. Defendant Sayes denied plaintiff's ownership and reconvened for recognition of his possession of the disputed area. The district court found the land in dispute is accretion, under LSA-C.C. Article 509, and divided it proportionately among the owners of the frontage on the edge of the river as follows:

Plaintiff Alton Tassin—15.76 acres

Plaintiff Roy J. Normand—33.02 acres

Defendant Foster J. Johnson—1.41 acres

Defendant Malcolm Sayes—26.22 acres

On appeal, we affirmed the title of Foster J. Johnson and reversed as to the other parties. We found defendant Sayes was in possession of all but 7 acres of the approximately 75 acres in dispute, whether it be accretion under Article 509 or cut off land under Article 518. We held the 7 acres is possessed by plaintiff Tassin. We further found that plaintiff Tassin failed in his *997 burden of proving title good against the world as to any land on the edge of the river or as to any of the land in dispute possessed by defendant Sayes. But Tassin had proved better title than Sayes to the 7 acres of the land in dispute possessed by Tassin. Accordingly, we recognized plaintiff Tassin's ownership of 7 acres of the land in dispute and confirmed defendant Sayes' possession of the remainder. We rejected all claims by plaintiff Normand on the basis that he failed to prove perfect title to any part of the land on the edge of the river or better title than Sayes to the property possessed by Sayes. Writs were denied by the Supreme Court, and the judgment became final on December 1, 1978.

On April 16, 1979, plaintiffs Tassin and Normand filed this suit against defendant Malcolm Sayes. Plaintiffs styled their pleadings a "Petition For Recognition As Owner Of Immovable Property And For Partition In Kind Pursuant To The Provisions Of Article 516, Or Alternative Demand For Partition As Recognition Of Owner Of Immovable Property." They alleged they are owners in indivision of a tract of land described in their petition as follows:

A certain tract or parcel of land, consisting of 75.0 acres, more or less, situated and lying in Section 29, T3N, R4E, Second Ward of Avoyelles Parish, Louisiana, said property lying South of Red River, and being bounded now or formerly on the North by Red River, on the South by Roy J. Normand, and others, on the West by Alton Tassin, and on the East by Malcolm Sayes, all as more fully shown on Plat of Survey of Louis J. Daigre and Associates dated May 18, 1977, which plat is attached to and made a part hereof by reference.

The described land includes that of which we recognized Sayes' possession in the prior suit.

Plaintiffs further alleged that they desire to partition the above property, but that defendant Sayes had refused a conventional partition. In the alternative, plaintiff Tassin alleged he was owner of Lot 23 and defendant Sayes was owner of Lots 18, 19, 20, 21 and 31 of the same R. J. Johnson partition and that R. J. Johnson was their common ancestor in title.

Defendant Sayes filed Exceptions of Res Judicata and No Cause and No Right of Action based on our prior judgment. The trial court sustained the exception of res judicata.

Defendant-exceptor Sayes contends plaintiffs are precluded from relitigating their demands in this case by principles of res judicata under LSA-R.S. C.C. Article 2286. Our Supreme Court recently stated the general rules of res judicata in Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La. 1978):

"[1] As a result of our civilian heritage, res judicata under Louisiana law is perceived to be much narrower in scope than its counterpart in common law jurisdictions. See 51 Tul.L.Rev. 611 (1977); Maloney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of `cause' and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata."

In the present case, there is identity of parties. Plaintiffs and defendant were parties in both suits. Also, there is an identity of the thing demanded by plaintiffs. In both suits, plaintiffs sought to be recognized as owners of the land in dispute. The question is whether there is an identity of "cause." See Mitchell v. Bertolla, 340 So.2d 287 (La.1976) for a full discussion of "cause." The court states "cause" is the "juridical facts on which the demand is based."

In his brief, defendant points out our jurisprudence has recognized certain exceptions *998 to the general rules of res judicata quoted above from Welch v. Crown Zellerbach. In Hope v. Madison, 194 La. 337, 193 So. 666 (La.1940), plaintiff sued her attorney to annul a sale on the basis of LSA-C.C. Article 2447, which prohibits attorneys from purchasing litigious rights. The defendant filed an exception of res judicata, based on a prior suit by Mrs. Hope against Madison to annul the sale on the grounds of lack of consideration and fraud. Mrs. Hope's demands in the prior suit were rejected. In the second suit, Madison urged res judicata on the grounds that identical issues were raised and decided in the prior case. However, the court noted that although nullity under Article 2447 was argued in plaintiff's supplemental brief on appeal in the prior case, the issue was neither pleaded nor decided. In overruling the exception of res judicata, the court held the common law rule that res judicata precludes not only everything pleaded in a prior case but also everything that could have been pleaded, does not generally apply in Louisiana. However, the court then stated that there are exceptions. One of these exceptions is set forth as follows:

"... that parties litigant in a petitory action, whether plaintiff or defendant, must set up whatever title or defense they may have at their command or a judgment on that issue will bar a second action based on a right or claim which existed at the time of the first suit, even though omitted therefrom. Gajan v. Patout & Burquieres, 135 La. 156, 65 So. 17; Succession of Whitner, 165 La. 769, 116 So. 180."

In the case of Gajan v. Patout & Burquieres, cited in Hope v. Madison,

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386 So. 2d 995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tassin-v-sayes-lactapp-1980.