Fust v. Fontenelle

• Decision Date: 14 March 1990
• Docket Number: No. 89-CA-1294,89-CA-1294
• Citation: 558 So.2d 715
• Parties: Darleen FUST, et al. v. Herman L. FONTENELLE, M.D., et al. 558 So.2d 715
• Court: Court of Appeal of Louisiana — District of US

Page 715

558 So.2d 715

Darleen FUST, et al. v. Herman L. FONTENELLE, M.D., et al.

No. 89-CA-1294.

558 So.2d 715

Court of Appeal of Louisiana Fourth Circuit.

March 14, 1990.

Rehearing Denied April 19, 1990.

R. Ray Orrill, Jr., Robert F. Shearman, Orrill & Shearman, New Orleans, for plaintiffs, appellants.

H. Martin Hunley, Jr., C. Wm. Bradley, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, for defendant, appellee St. Paul Fire and Marine Ins. Co.

Before BARRY and WILLIAMS, JJ., and PRESTON H. HUFFT, J. Pro Tem.

BARRY, Judge.

Mr. and Mrs. George Fust appeal a judgment which maintains St. Paul Fire & Marine Insurance Company's exception of res judicata and the denial of a new trial.

PROCEDURAL HISTORY

On January 2, 1980 Mr. and Mrs. Fust, Sr., individually and on behalf of their minor son, George Fust, Jr., filed suit in federal district court. By complaint and amended complaint they sued Dr. Herman Fontenelle, his medical corporation, and his insurer, St. Paul Fire & Marine Insurance Company. Their petition alleged that Mrs. Fust was under Dr. Fontenelle's care during her pregnancy from March until November 8, 1975. Dr. Fontenelle allegedly prescribed numerous dangerous drugs during her pregnancy and after George's birth when Mr. and Mrs. Fust learned that the child suffered from cerebral palsy, spastic quadriplegia, and other injuries. Their petition claimed that in August, 1979 Mr. and Mrs. Fust learned that their son's abnormalities and impairment were due to alleged negligent actions of Dr. Fontenelle, including the prescription of certain drugs during Mrs. Fust's pregnancy. A number of pharmaceutical companies were originally made defendants but were dismissed. Mr. and Mrs. Fust's complaint was dismissed with prejudice by summary judgment on January 11, 1984 based on prescription by retroactively applying La.R.S. 9:5628. The Fusts appealed and the U.S. Fifth Circuit affirmed the dismissal on July 23, 1984. Fust v. Arnar-Stone Laboratories, Inc., 736 F.2d 1098 (5th Cir.1984). Their application for rehearing was denied on August 24, 1984 and they did not apply for certiorari.

On May 10, 1988 Mr. and Mrs. Fust filed a petition in Civil District Court against Dr. Fontenelle's medical corporation, his estate and St. Paul Marine & Fire Insurance Company. St. Paul filed an exception of res judicata and argued that in 1980 the same plaintiffs filed an identical complaint against the same defendants in the United States District Court. St. Paul specified that Mr. and Mrs. Fust justified their virtually identical 1988 suit because the jurisprudence relied upon by the federal courts in 1983 and 1984 was supplanted by a 1987 decision of the Louisiana Supreme Court, hence they are entitled to re-litigate their claim in state court. The federal documentation was attached to the exception.

Mr. and Mrs. Fust argued that within one year of Maltby v. Gauthier, 506 So.2d 1190 (La.1987), they filed their suit in state court and should be allowed to revive their claim which was wrongfully dismissed in federal court due to the faulty interpretion of Louisiana law. They stated Maltby held that La.R.S. 9:5628 was not to be retroactively applied and the Fusts claim their cause of action had not prescribed. The Fusts noted that they filed the petition in state court in 1988 because the estate of Dr. Fontenelle was in Louisiana, they then resided in Louisiana, and there was no longer diversity of citizenship.

The trial court maintained the res judicata exception and denied Mr. and Mrs. Fust's motion for a new trial. Their appeal claims:

1. A summary judgment based on prescription does not support a later plea of res judicata;

2. There has been no change in the law, rather a confirmation and clarification of the law that existed at the time of the original suit.

RES JUDICATA

The theory of our Louisiana civilian res judicata is much narrower than its counterpart in common law jurisdictions. Here matters actually litigated and finally adjudged are presumed correct and should not be contradicted by a subsequent suit. Louisiana doctrine presumes correctness and precludes relitigation only when there is: (1) an identity of the parties; (2) an identity of cause; (3) an identity of the thing demanded. Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978). Dixon, Booksh, and Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 TUL.L.REV. 611 (1977).

La.R.S. 13:4231 provides:

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.

The term "cause of action" is a mistranslation of the French term "cause." Mitchell v. Bertolla, 340 So.2d 287 (La.1976). A proper interpretation of cause requires consideration of the operative facts which give rise to the judicial relief sought. Mutual Fire, Marine & Inland Insurance Company v. Electro Corporation, 461 So.2d 410 (La.App. 4th Cir.1984). One must examine the first lawsuit to determine what was at issue, what was decided and therefore a "thing adjudged" that may not be questioned by another lawsuit. Sewell v. Argonaut Southwest Insurance Co., 362 So.2d 758 (La.1978). A plea of res judicata is stricti juris; every element of the formula must be present. Mai v. Mai, 419 So.2d 1251 (La.App. 3rd Cir.1982), writ denied 420 So.2d 970 (La.1982).

A final judgment in federal court can become a res judicata plea in state court. Jones v. Jefferson Parish School Board, 447 So.2d 1205 (La.App. 5th Cir.1984), writ denied 450 So.2d 953 (La.1984). A judgment that determines the merits in whole or in part is a final judgment. La.C.C.P. art. 1841. A final judgment is definitive when it has acquired the authority of the thing adjudged. La.C.C.P. art. 1842. A federal court summary judgment (based upon the burden of proof and not lack of jurisdiction) is a final judgment for purposes of a subsequent state court plea of res judicata. Sibley v. Natchitoches Parish Police Jury, 509 So.2d 637 (La.App. 3rd Cir.1987), writ denied 512 So.2d 1182 (La.1987).

A final judgment has the authority of res judicata only as to those issues in the pleadings and conclusively adjudicated by that court; where any doubt exists the second suit will be maintained. McNeal v. State Farm Mutual Automobile Insurance Company, 278 So.2d 108 (La.1973); McKean v. Campbell, 372 So.2d 652 (La.App. 1st Cir.1979).

Louisiana appellate courts have held that prior suits dismissed on exceptions of no right of action, Louisiana Weekly Publications v. First National Bank of Commerce, 455 So.2d 1295 (La.App. 4th Cir.1984), or nonsuits, Chalmette General Hospital, Inc. v. Cherry, 398 So.2d 599 (La.App. 1st Cir.1980), writ denied 400 So.2d 211 (La.1981), do not have res judicata effect.

Mr. and Mrs. Fust argue that the "thing adjudged" was a pre-trial motion for summary judgment based on prescription and not the merits of the case. Because the claim was not litigated in the prior suit and the thing adjudged, res judicata does not apply. They rely on Landry v. Thibaut, 523 So.2d 1370 (La.App. 5th Cir.1988), writs denied 526 So.2d 809 (La.1988).

In Landry the State Fifth Circuit was confronted with a federal court dismissal of a claim because the plaintiffs did not have a private right of action against the directors and officers of a corporation (a shareholder's derivative suit was necessary) and a subsequent plea of res judicata by the defendants after plaintiffs filed suit in state court. The Fifth Circuit affirmed the trial court's finding that the federal court action as to that claim had no res judicata effect.

Mr. and Mrs. Fust argue this situation is analogous to Landry, but we find glaring distinctions. Landry and the above cited cases show that Louisiana jurisprudence has consistently held that a judgment maintaining a no right of action or any exception that does not represent a final adjudication has no res judicata effect. See Dixon, Res Judicata, supra, at 634, fn. 119 and the cases cited therein. ¹ In Coffil v. Boyd, 428 So.2d 1355 (La.App. 4th Cir.1983), writ denied 433 So.2d 1051 (La.1983), this Court considered whether a prior judgment maintaining an exception of lis pendens could support an exception of res judicata. We affirmed the trial court's decision to overrule the exception because dismissal of the action did not adjudicate its merits even though the lawsuit was dismissed with prejudice. In Federal Ins. Co. v. T.L. James Co., & Inc., 69 So.2d 636 (La.App.Orl.1954), the court held that a...