R. G. Claitor's Realty v. Juban

• Decision Date: 28 January 1980
• Docket Number: No. 65403,65403
• Citation: 391 So.2d 394
• Parties: R. G. CLAITOR'S REALTY et al. v. Ray A. JUBAN et al.
• Court: Louisiana Supreme Court

Page 394

391 So.2d 394

R. G. CLAITOR'S REALTY et al. v. Ray A. JUBAN et al.

No. 65403.

Supreme Court of Louisiana.

Jan. 28, 1980.

On Rehearing Oct. 20, 1980.

Mack E. Barham, Charles F. Thensted, Barham & Churchill, New Orleans, Cordell Haymon, Haymon & Arbour, Ltd., Frank M. Coates, Jr., Taylor, Porter, Brooks & Fuller, Baton Rouge (Professor A. N. Yiannopoulos, Baton Rouge, of counsel), for plaintiffs-applicants.

MARCUS, Justice.

On August 21, 1970, Robert G. Claitor, Ray A. Juban and The Kroger Co. entered into a "Reciprocal Agreement" for the joint use of their adjoining properties as a shopping center. Claitor owned the westernmost parcel (Parcel No. 1); Kroger owned the center parcel (Parcel No. 2); Juban owned the easternmost parcel (Parcel No. 3). Subsequent to the execution of the agreement, Juban sold Parcel No. 3 to Juban Properties, Inc. and Claitor acquired Lot No. 8, East Richland Estates, which is contiguous to and east of Parcel No. 3.

On August 12, 1975, Juban Properties, Inc. filed suit seeking a declaratory judgment affirming its right to construct a fence along the eastern boundary line of Parcel No. 3. Robert G. Claitor was named defendant. On May 19, 1977, the trial court denied Juban Properties, Inc. a declaratory judgment. On December 28, 1977, the court of appeal reversed, rendering judgment in favor of plaintiff and against defendant "declaring that the construction of a fence along the eastern boundary of plaintiff's property would not violate the Reciprocal Agreement." ¹ We denied writs. ² Juban Properties, Inc. proceeded to construct the fence.

On June 16, 1978, the present action was filed seeking an injunction ordering defendants therein to remove the fence. Plaintiffs in this suit are Robert G. Claitor, his wife, Nancy M. Claitor, and R. G. Claitor's Realty, a partnership in commendam that had acquired Lot No. 8, East Richland Estates, on December 30, 1976, during the previous litigation. Robert G. Claitor is the general partner of Realty; the partners in commendam are the separate trusts of his and his wife's four children. Named defendants are Ray A. Juban, Juban Properties, Inc. and T.G.&Y. Stores Company, Inc., lessee of Parcel No. 3. On August 30, 1978, Louisiana National Bank of Baton Rouge (LNB) filed a petition of intervention as trustee of the Claitor children's trusts, seeking removal of the fence. The trusts had acquired Parcel No. 2 from Realty on December 26, 1977; Realty had purchased it from The Kroger Co. on November 23, 1977.

Defendants filed a peremptory exception of res judicata. Additionally T.G.& Y. filed an exception of no cause of action. The trial court overruled the exception of res judicata and took T.G.&Y.'s exception of no cause of action under advisement. Defendants then filed a motion for summary judgment on the ground that the petition, sworn affidavit accompanying the motion for summary judgment and the record of the previous suit showed that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. The trial court granted the motion for summary judgment filed by defendants Ray A. Juban and Juban Properties, Inc., dismissing plaintiffs' suit against them, sustained the exception of no cause of action filed by defendant T.G.&Y. Stores Company, Inc., dismissing plaintiffs' suit as to it, and further ordered that the intervention of LNB be dismissed. Plaintiffs appealed. ³ The court of appeal affirmed. We granted certiorari to review the correctness of the decision of the court of appeal. ⁴

At the outset, we note that LNB, intervenor and owner of Parcel No. 2, did not appeal from the judgment of the trial court dismissing its intervention. Plaintiffs alone have appealed; consequently, claims of LNB cannot be reviewed by this court. Daly v. Opelousas Ins. Agency, 181 La. 89, 158 So. 631 (1934); White v. Fifth Regular Baptist Church, 31 La.Ann. 521 (1879); Jenkins v. Stonebraker, 201 So.2d 698 (La.App. 2d Cir. 1967); Tillman v. Public Belt R.R. Comm'n, 42 So.2d 888 (La.App.Orl.1949).

We now proceed with the merits of plaintiffs' appeal. Plaintiffs present three issues for our consideration: (1) whether the overruling by the trial court of defendants' exception of res judicata established the law of the case and precludes a later finding of res judicata by the trial court; (2) whether a summary judgment can be granted based on a finding of res judicata; and (3) whether the facts of this case support a finding of res judicata.

The Code of Civil Procedure permits a reconsideration of the overruling of peremptory exceptions. La.Code Civ.P. art. 928; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); La.Code Civ.P. art. 1152, comment (b). The overruling of a peremptory exception is merely an interlocutory order and the court has the right, at any stage of the proceeding at which the objection was made, to set aside that decree and to sustain the exception, upon finding that it erred in overruling it. Babineaux v. Pernie-Bailey Drilling Co., supra; Labourette v. Doullut & Williams Shipbuilding Co., 156 La. 412, 100 So. 547 (1924); Register v. Harrell, 131 La. 983, 60 So. 638 (1912). Accordingly, in the instant case, the overruling of defendants' exception of res judicata did not preclude the trial court from later reversing itself and sustaining the exception.

Plaintiffs next contend the trial court was without authority to grant a summary judgment based on a finding of res judicata. La.Code Civ.P. art. 966 provides that the plaintiff or defendant may move for a summary judgment in his favor and that the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Defendants specially pleaded the exception of res judicata as required by La.Code Civ.P. art. 927; additionally, they effectively reurged the exception in the motion for summary judgment ⁵ and the supporting affidavit. ^{6 6} The record of the previous suit and the pleadings in this case are before the court. They present no genuine issue as to material fact concerning the applicability of res judicata. Therefore, should the facts support a finding of res judicata, defendants would be entitled to judgment as a matter of law. Accordingly, we have left only to consider whether the facts support a finding of res judicata.

The principles governing the content and application of res judicata are located in the section of the Civil Code concerning legal presumptions. One presumption drawn by the law attributes authority to the "thing adjudged" (which is a literal translation of the Latin "res judicata") as proof of the existence or non-existence of certain facts. La.Civ.Code art. 2285. The "thing adjudged" consists

of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.

Id. art. 3556(31). Article 2286 details the requisites of a "thing adjudged":

The authority of the thing adjudged takes place only with respect of 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.

Thus, in determining whether plaintiffs' right to have the fence removed in this case is a "thing adjudged" to which we must accord conclusive authority, we must first consult the former suit. Applying the principles of art. 2286, if there exist identical demands, causes and parties between the first suit and the present litigation, the "object of the (former) judgment" acquires the authority of the "thing adjudged," and the legal presumption arising in defendants' favor and appended to the "thing adjudged" bars its relitigation.

In the instant case, the thing demanded was the removal by defendants of a fence which they had constructed. In the first suit, the thing demanded was a declaration of the right of plaintiff therein to construct the same fence. Clearly, the same thing was demanded in both suits. See State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978).

Next, we consider whether the cause upon which the demands in the two suits were founded are the same. Plaintiffs contend the causes are different for two reasons: (1) the first suit was a declaratory action, whereas the present suit is a possessory or petitory action; and (2) the first suit adjudicated only whether the Reciprocal Agreement created a servitude on Parcel No. 3 in favor of Parcel No. 1 and Lot No. 8 and the present suit concerns servitudes created independently of the Reciprocal Agreement.

Plaintiffs' first contention is without merit. The term "the same cause of action" in art. 2286 is a mistranslation. The article should read "the same cause." Thus, the proper interpretation of art. 2286 requires a consideration of the broader concept of cause at civil law rather than the common law cause of action. Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975). Therefore, that the original suit was a declaratory action and the instant suit is a possessory or petitory action is of no moment here. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974); Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Greenwood Planting & Mfg. Co. v. Whitney Central Trust & Savings Bank, 146 La. 567, 83 So. 832 (1920).

Plaintiffs' second contention is also without merit, even though the final judgment in the first suit stated: "(C)onstruction of a fence along the eastern boundary of plaintiff's (Juban Properties, Inc.'s) property would not violate the Reciprocal...