Horrell v. Alltmont

• Decision Date: 31 July 2020
• Docket Number: 2019 CA 0945
• Parties: Walter J. HORRELL et al v. Jack Marks ALLTMONT et al
• Court: Court of Appeal of Louisiana — District of US

309 So.3d 754

Walter J. HORRELL et al

v.Jack Marks ALLTMONT et al

2019 CA 0945

Court of Appeal of Louisiana, First Circuit.

Judgment rendered: JULY 31, 2020

Walter J. Horrell, Covington, Louisiana, Attorney for Plaintiffs/Appellants Walter J. Horrell and Edna R. Horrell

Jack M. Alltmont, Eric M. Schorr, New Orleans, Louisiana, Attorneys for Defendants/Appellees Jack Marks Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Michael J. Horrell and Marie Elise Lecour

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

The plaintiffs, Walter J. Horrell and Edna R. Horrell, appeal from a trial court judgment granting a motion for summary judgment in favor of the defendants, Jack M. Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Marie Elise LeCour, and Michael J. Horrell, and dismissing the plaintiffs’ claims with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This ongoing matter has been before this Court and the Louisiana Fourth Circuit Court of Appeal on numerous occasions,¹ the most recent of which was Horrell v. Barrios, 2016-1547 (La. App. 1 Cir. 3/15/18), 2018 WL 1373653, (unpublished), writ denied, 2018-0931 (La. 9/28/18), 253 So.3d 144. Barrios discussed in depth the factual and procedural history of the parties and affirmed the dismissal of the plaintiffs’ possessory action.² Therefore, the factual background and procedural history of the litigation leading to this particular appeal will not be repeated.

On November 2, 2017, the plaintiffs filed an "Action for Damages, Possessory Actions, Relief by Ordinary Proceedings and Injunctive Relief" against the defendants.³ The plaintiffs argued that they corporeally possessed the immovable property located at Square 1807 of the New Covington Addition to the Town of Covington in St. Tammany Parish prior to being evicted on November 17, 2016, by the defendants. The plaintiffs requested damages for the eviction and that the trial court recognize them as the possessors of the immovable property.

On October 9, 2018, the defendants filed a motion for summary judgment, requesting a dismissal of the plaintiffs’ claims because the basis of those claims had been adjudicated by the Twenty-Second Judicial District Court in prior litigation. Specifically, the defendants argued that the plaintiffs’ claims were barred by res judicata and collateral estoppel because the Twenty-Second Judicial District Court previously rendered judgment dismissing the plaintiff's possessory action. In support of their motion, the defendants filed a memorandum that requested the trial court to take judicial notice of prior litigation from the Twenty-Second Judicial District Court, this Court, and the Louisiana Supreme Court concerning the parties and property at issue. No supporting documents were attached to the defendants’ memorandum.

In response, the plaintiffs filed a memorandum opposing the motion for summary judgment. Within the plaintiffs’ opposition memorandum, they filed a declinatory exception raising the objection of insufficiency service of process, dilatory exception raising the objections of prematurity and vagueness or ambiguity of the petition, and peremptory exception raising the objection of res judicata.⁴ On December 18, 2018, the trial court held a hearing on the defendants’ motion for summary judgment. After hearing arguments from the parties, the trial court signed a judgment on January 14, 2019, that overruled the plaintiffs’ exceptions, granted the defendants’ motion for summary judgment, and dismissed the plaintiffs’ claims with prejudice.⁵ Subsequently, the plaintiffs filed a motion for new trial that was denied. The plaintiffs then appealed the January 14, 2019 judgment.

STANDARD OF REVIEW AND APPLICABLE LAW

Generally, an objection of res judicata to bar a subsequent action is raised by a peremptory exception. La. C.C.P. art. 927(3). The doctrine of res judicata is found in La. R.S. 13:4231 and defeats a subsequently filed action when the following elements are satisfied: (1) the judgment in the final litigation is valid; (2) the judgment is final and definitive; (3) the cause of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (4) the cause of action in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. See Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843 So.2d 1049, 1053 ; Bovie v. St. John the Baptist Parish, Dept, of Streets and Roads, 2013-162 (La. App. 5 Cir. 9/4/13), 125 So.3d 1158, 1161. The party who urges an exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Id. When a party raises an objection of res judicata or raises the issue in a motion for summary judgment, the court must examine not only the pleadings, but also the entire record in the first suit to determine whether the second suit is, in fact, barred by res judicata. See Middleton v. Livingston Timber, Inc., 2010-1203 (La. App. 1 Cir. 2/11/11), 57 So.3d 590, 592.

In R. G. Claitor's Realty v. Juban, 391 So.2d 394, 397 (La. 1980), the Louisiana Supreme Court recognized that a plea of res judicata may be raised by a motion for summary judgment when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. In this case, the mover raised the issue of res judicata by filing a motion for summary judgment. Therefore, the mover is bound by the requirements of La. C.C.P. art. 966 in order to provide documentary evidence to show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law in order to have the plaintiffs’ case dismissed on the basis of res judicata. See La. C.C.P. art. 966(A)(3).

The procedure for a peremptory exception raising the objection of res judicata and a motion for summary judgment raising the issue of res judicata are different.⁶ On the trial of a peremptory exception, evidence may be introduced to support or contradict the objection of res judicata. La. C.C.P. art. 931. If an objection of res judicata is raised in a motion for summary judgment, only the documents provided for in La. C.C.P. art. 966(A)(4) may be filed in support of or opposition to the motion. Furthermore, no oral testimony shall be allowed at a hearing on a motion for summary judgment, and the court can consider only those documents filed in support of or in opposition to the motion. See La. C.C.P. art. 966, comments—2015, comment (c). This rule differs from Federal Rules of Civil Procedure, Rule 56(3), which allows the court to consider other materials in the record in deciding the motion for summary judgment. See La. C.C.P. art. 966, comments—2015, comment (k).⁷

The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. Thus, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Crockerham v. Louisiana Medical Mutual Insurance Company, 2017-1590 (La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608 citing Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 129.

Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if he will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1) ; Jenkins v. Hernandez, 2019-0874 (La. App. 1 Cir. 6/3/20), 2020 WL 2898123, at *3 (unpublished); Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So.2d 37, 39 ; Hardy v. Bowie, 1998-2821 (La. 9/8/99), 744 So.2d 606, 609 ; Hayes v. Autin, 1996-287 (La. App. 3 Cir. 12/26/96), 685 So.2d 691, 695, writ denied, 1997-0281 (La. 3/14/97), 690 So.2d 41. The moving party must only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1) ; Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) ; Mercadel v. State Through Department of Public Safety and Corrections, 2018-0415 (La. App. 1 Cir. 5/15/19), 2019 WL 2234404, at *5-6 (unpublished). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1) ; see also La. C.C.P. art. 966, comments—2015, comment (j).

If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, article 966(D)(1) mandates the granting of the motion for summary judgment. Jenkins, 2020 WL 2898123, at *3 ; Babin, 764 So.2d at 40 ; Celotex Corp., 477 U.S. at 326, 106 S.Ct. 2548.

Material facts are those that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Daniels v. USAgencies Cas. Ins. Co., 2011-1357 (La. App. 1 Cir. 5/3/12), 92 So.3d 1049, 1055. Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i. e ., whether there is any genuine issue of material fact and...