Dart v. Ehret

• Decision Date: 11 March 1985
• Docket Number: No. 84-CA-480,84-CA-480
• Citation: 466 So.2d 1336
• Parties: John DART, Liquidator of Verret Lands, Inc. v. Royce EHRET and Henry D. McNamara, Jr. 466 So.2d 1336
• Court: Court of Appeal of Louisiana — District of US

Page 1336

466 So.2d 1336

John DART, Liquidator of Verret Lands, Inc. v. Royce EHRET and Henry D. McNamara, Jr.

No. 84-CA-480.

466 So.2d 1336

Court of Appeal of Louisiana,

Fifth Circuit.

March 11, 1985.

Henry Tutt Dart, New Orleans, for plaintiff-appellant, John Dart, Liquidator of Verret Lands, Inc.

Charles E. McHale, Jr., New Orleans, for defendant-appellee, Henry D. McNamara, Jr.

Nathan Greenberg, Greenberg & Dallam, Gretna, for defendant-appellee, Royce Ehret.

William J. Daly, Metairie, for defendant-appellee, W. Richard White.

Hubert A. Vondenstein, Parish Atty., James DeSonier, Larry J. Radosta, Byrne W. Dyer, III, Ferdinand M. Lob, Susan Roth, Paul Mayoral, Asst. Parish Attys., Gretna, for defendants-appellees.

Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.

KLIEBERT, Judge.

This is an appeal by the plaintiff, John Dart, Liquidator of Verret Lands, Inc., from a judgment in favor of Royce Ehret, Henry McNamara, Jr., and the Parish of Jefferson, defendants. The plaintiff filed an action seeking to be declared the owner of a strip of land approximately seventy-five feet wide and eight hundred eighty-three feet long, located in the Parish of Jefferson. The trial judge found the filing of a subdivision plan in the conveyance records constituted a statutory dedication of the strip as a street and the subsequent abandonment of the street by the Parish transferred the strip from the Parish to the adjacent landowners, hence, he dismissed plaintiff's action. We affirm.

The strip of land in question here was part of a large tract of land acquired by Verret Lands, Inc. from Frank G. Brown by Act of Sale dated May 15, 1926. Subsequently, by Act of Sale dated August 24, 1931, Verret Lands, Inc., amongst other lands, sold to Mrs. August Hardy Wall land described as follows:

"Those certain portions or parcels of land situated in the Parish of Jefferson, State of Louisiana, in that part thereof designated as Section B and C, on a plan of survey of Oakdale Sub-Division, made by Frank B. Grevemberg, Civil Engineer, dated June 25, 1931, a copy of which is annexed to an act of deposit by Mrs. W.W. Wall, passed before John Dart, Notary Public, on August 24, 1931, and which lots and parcels of land are more particularly described as follows, to-wit:

* * *

(f) A certain lot or parcel of ground designated on said plan as Farm Block No. 8, bounded on the North by Industry Street, on the West by Wall Boulevard, on the South by the right of way of the Missouri Pacific Railroad and on the East by an unnamed Street.

(g) A certain lot or parcel of ground designated on said plan as Farm Block No. 9, bounded on the North by Industry Street, on the South by the right of way of the Missouri Pacific Railroad, on the East and West by unnamed streets."

The Act of Deposit referred to as having the Grevemberg survey attached is not in the record. However, a copy of the Grevemberg survey, which is of record in the Parish of Jefferson, was placed in the record in Map Book 15, folio 24-0. The portion of the Grevemberg survey of 1931 showing Farm Lots 8 and 9 is reproduced as follows:

This is part of the Grevemberg Plan dated June 25, 1931.

The area referred to as the "unnamed street" in the description of the lots in the Act of Sale and the strip in question here are the same, and on the survey it is that strip of land lying between Lots 8 and 9 and running North to South between Industry Street and the railroad. It was stipulated by the parties that the strip is unoccupied and was never actually used by the Parish of Jefferson as a street or right of way.

It is undisputed by the parties that through a direct chain of title emanating from Mrs. Wall's acquisition, above described, Ehret and McNamara acquired and were the owners of different portions of Lots 8 and 9 adjacent to and forming the western and eastern boundaries of the disputed strip. In order to readily identify the strip in question on the Grevemberg survey, we have shaded the adjacent areas owned by McNamara and Ehret.

The Parish of Jefferson, pursuant to and in accordance with the provisions of R.S. 48:701, by ordinance dated September 11, 1969, revoked the dedication of the "unnamed strip" and subsequently approved a re-subdivision of Lots 8 and 9 which apportioned one-half of the unnamed street to each lot. Verret Lands claims ownership by virtue of its acquisition from Frank Brown and denies any alienation. The defendants contend the recordation of the Grevemberg survey was a statutory dedication and under the provisions of R.S. 33:5051 conveyed ownership to the Parish of Jefferson, and the subsequent abandonment of the street by the Parish transferred title to the adjacent lot owners.

Plaintiff contends the trial court erred in: (1) refusing to consider a prior ruling of another section of the Twenty-fourth Judicial District Court in LaBorde v. Verret Lands, Inc., No. 199-998, as rendering the defendants' contentions as to ownership of the disputed strip res judicata, (2) refusing to declare the Parish of Jefferson's prior recitations of lack of ownership in a right of way grant acted as an estoppel to claiming ownership of the disputed strip by dedication, and (3) finding that the recordation of the Grevemberg Survey in the conveyance records of the Parish of Jefferson substantially complies with the requirements of R.S. 33:5051, thereby constituting a statutory dedication of the disputed strip of ground to the Parish of Jefferson.

We will consider the first and second enumerated assignments of error together and first.

Civil Code Article 2286 provides as follows:

Art. 2286. Res judicata, essential elements

Art. 2286. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Counsel for defendants argues res judicata does not apply because the parties involved (plaintiff and defendants) and the things adjudged (the strips of land) are different. On the other hand, counsel for the plaintiff argues that although the strips of land are different, the thing adjudged in LaBorde and to be adjudged here is whether the recordation of the Grevemberg map constituted a statutory dedication of the strip to the Parish; therefore, the plea of res judicata should be upheld.

The jurisprudence is clear that all of the elements required by Civil Code Article 2286 must be present for the plea to be valid. The absence of any one of the three requires an overruling of a plea of res judicata. The doctrine of res judicata is stricti juris and any doubt as to the identity of claims must be resolved in favor of the parties against whom the plea is made. International Paper Co. v. Maddox, 5th Cir.1953, 203 F.2d 88.

In Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), the Supreme Court reviewed the history of res judicata under Louisiana law and at page 156 said:

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.

The major distinction between the case at bar and the LaBorde case is the fact that parties to this litigation are not the same as those involved in the LaBorde case. When the LaBorde decision was rendered, the ownership interest of Ehret and McNamara's predecessor in title was already vested for the ordinance abandoning the street had already been enacted. Since all parties were not present in that decision the only way the thing adjudged in LaBorde could affect Ehret and McNamara would be under some concept of the common law doctrine of "Collateral Estoppel." In essence, although referred to as a plea of res judicata, it is this common law doctrine which plaintiff's counsel urges when he argues the thing adjudged in LaBorde and to be adjudged here is the same and the Parish of Jefferson is estopped from claiming ownership here because of its prior recitations in a right of way grant. However, our supreme court has previously rejected the doctrine.

In Welch v. Crown Zellerbach Corp., supra, at pages 156 and 157, the organ of the Supreme Court said:

[4, 5] Collateral estoppel is a doctrine of issue preclusion alien to Louisiana law. Developed in the common law, the device precludes the relitigation of issues actually decided in a prior suit between the parties on a different cause of action. See Mitchell v. Bertolla, supra, and the authorities collected therein. Even among common law jurisdictions the doctrine is not applied uniformly since there are different theories on whether "mutuality" or an identity of parties is necessary. See Annot. 8 A.L.R.3d 1044 (1970).

Because of a basic difference between the meanings ascribed to the common law from "cause of action" and the civil law "cause" in res judicata, the doctrine of collateral estoppel is not susceptible of an orderly application in a jurisdiction utilizing civil law terminology. Under the common law, res judicata applied where there is an identity of parties and causes of action in both suits. See 51 Tul.L.Rev. 611 (1977). Unlike the limited meaning given "cause" in our system, "cause of action" encompasses all grounds upon...