Carlo Carollo, Jr., And Frank Carollo, Individually

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #040
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of September, 2022 are as follows:
BY Weimer, C.J.:
2021-C-01670 CARLO CAROLLO, JR., AND FRANK CAROLLO, INDIVIDUALLY
AND ON BEHALF OF THE ESTATE OF CARLO CAROLLO, SR. AND
THE ESTATE OF ANGELINA CAROLLO VS. STATE OF
TRANSPORTATION AND LOUISIANA, DEPARTMENT OF
DEVELOPMENT (Parish of St. Bernard)
AFFIRMED. SEE OPINION.
Hughes, J., concurs and assigns reasons.
Genovese, J., dissents and assigns reasons.
McCallum, J., dissents for the reasons assigned by Genovese, J.

SUPREME COURT OF LOUISIANA
No. 2021-C-01670
CARLO CAROLLO, JR., AND FRANK CAROLLO, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF CARLO CAROLLO, SR. AND THE
ESTATE OF ANGELINA CAROLLO
VS.
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT
On Writ of Certiorari to the Court of Appeal, Fourth Circuit,
Parish of St. Bernard
WEIMER, Chief Justice
Certiorari was granted in this case to resolve a split in the decisions of the
courts of appeal regarding the relationship between La. C.C.P. art. 425 and the res
judicata statutes, La. R.S. 13:4231 and 13:4232. Particularly, this court will resolve
whether Article 425 is an independent claim preclusion provision apart from res
judicata such that identity of parties is not required to preclude a subsequent suit or
whether Article 425 merely references the requirements of res judicata and thus a
claim cannot be precluded unless it is between the same parties as a prior suit.
After reviewing the law and the arguments of the parties, we find, consistent
with the conclusion of the court of appeal below, that Article 425 functions simply
as a measure that puts litigants on notice at the outset and, during the course of
litigation, that all causes of action arising out of the transaction or occurrence that is
the subject matter of the litigation must be asserted. Rather than have independent
enforcement effect, Article 425 operates in tandem with and is enforced through the

exception of res judicata. Because Article 425 is enforced through res judicata, all
elements of res judicata–including identity of parties–must be satisfied for a second
suit to be precluded.
Applying the requirements of res judicata in the present case, this court finds,
as did the court of appeal, that the requirement of identity of parties is lacking and,
thus, the exception of no right of action asserted in this case cannot be sustained. As
a result, the judgment of the court of appeal is affirmed.
FACTS AND PROCEDURAL HISTORY
On the evening of November 9, 2017, Dr. Carlo Carollo, Sr., and his wife,
Angelina Carollo, were in their vehicle traveling home from visiting their son when
Dr. Carollo attempted to make a left turn onto Louisiana Highway 46 from Volpe
Drive in Chalmette, Louisiana. As it entered the intersection, the Carollos’ vehicle
was struck broadside by an 18 wheel tractor-trailer operated by Kevin Owens. Both
Dr. and Mrs. Carollo died as a result of injuries sustained in the accident.
On November 7, 2018, a petition was filed in the 34th Judicial District Court
for the Parish of St. Bernard by plaintiffs, Carlo Carollo, Jr., and Frank Carollo,
individually and on behalf of the estates of Dr. Carlo Carollo, Sr., and Angelina
Carollo. The petition sought wrongful death and survival damages resulting from the
accident. Named defendants in the suit were Kevin Owens, the driver of the 18-
wheeler, Langer Transportation Company, the owner of the truck and the employer
of Mr. Owens, ACE American Insurance Company, the liability insurer of Langer
Transportation, and XYZ Insurance Company. Because none of the named
defendants resided in Louisiana, the defendants removed the case to federal court
pursuant to 28 U.S.C. 1332 (diversity jurisdiction). Thereafter, the federal district
2

court issued a scheduling order setting various pretrial deadlines, including a March
4, 2019 deadline by which to file amendments to pleadings.
Consistent with the March 4th deadline, plaintiffs filed a first supplemental and
amended complaint, asserting additional allegations of negligence against the named
defendants. Over four months later, on July 25, 2019, plaintiffs filed a motion for
leave to file a second supplemental and amended complaint, seeking, for the first
time, to add the Louisiana Department of Transportation and Development (DOTD)
as a defendant. Defendants opposed the motion, arguing that plaintiffs had not
demonstrated good cause for modifying the scheduling order to allow the untimely
amendment, and that the amendment was an improper attempt to divest the federal
court of its diversity jurisdiction by adding a Louisiana defendant.
The motion for leave was referred to the magistrate, who denied the motion,
finding that plaintiffs had failed to meet their burden of proving that good cause
existed for modifying the scheduling order to allow the untimely amendment. In
addition, after analyzing the four factors set forth in Hensgens v. Deere & Co., 833
F.2d 1179 (5th Cir. 1987), the magistrate determined that all factors weighed against
allowing the proposed amendment to join a non-diverse defendant.1
Plaintiffs sought review of the magistrate’s ruling with the federal district
court, which denied relief, finding no error in the magistrate’s determination that
plaintiffs failed to show good cause for modifying the scheduling order to allow the
untimely amendment. In so ruling, the district court opined that plaintiffs should
1 The Hensgens decision instructs that, when faced with an amended pleading naming a new
nondiverse defendant in a removed case, the federal district court should consider, and weigh, a
number of factors: (1) the extent to which the purpose of the amendment is to defeat federal
jurisdiction; (2) whether plaintiff has been dilatory in asking for the amendment; (3) whether plaintiff
will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the
equities. Hensgens, 833 F.2d at 1182.
3

have been alerted to the potential liability of the DOTD when they received the
defendants’ accident reconstruction report in August 2018, three months before filing
suit in state court. Further, the district court determined that the magistrate’s analysis
of the four Hensgens factors in determining whether to allow a post-removal
amendment to join a non-diverse defendant was neither clearly erroneous nor contrary
to law.
Following the denial of their motion for review by the federal district court,
plaintiffs reached a settlement with the original defendants. In that settlement,
plaintiffs expressly reserved their rights “against all other parties unrelated to the
Released Parties, whether named or unnamed, in connection with all claims arising
out of the incident which forms the basis of the subject litigation.” An order
dismissing the federal suit with prejudice was signed by the district court on
December 26, 2019.
On November 8, 2019, one day following the denial of their motion for review,
plaintiffs filed the instant proceeding in the 34th Judicial District Court. The petition
names DOTD as the sole defendant.
DOTD filed exceptions to the petition; among them an exception of no right
of action based on La. C.C.P. art. 425. DOTD argued that plaintiffs violated Article
425 because they split their cause of action by filing a separate suit against DOTD
that arose out of the same transaction or occurrence as the proceeding in federal court,
resulting in “preclusion by judgment” pursuant to Article 425. Plaintiffs opposed the
exception, arguing that the procedural rule of Article 425 requiring joinder of claims
is not absolute and “will yield to the interests of justice.” Craig v. Adams Interiors,
Inc., 34,591, pp. 5-6 (La.App. 2 Cir. 4/6/01), 785 So.2d 997, 1002. Plaintiffs further
argued that Article 425 should not preclude the present action because plaintiffs did
4

not have knowledge of facts sufficient to implicate DOTD before filing their original
suit; DOTD was not amenable to suit in federal court, where plaintiffs were forced
to litigate; the federal magistrate concluded that plaintiffs would not suffer prejudice
by the denial of their motion to amend their pleadings in federal court because
plaintiffs could seek relief by filing suit in state court; and, plaintiffs reserved their
rights to proceed against DOTD in the settlement agreement.
Following a hearing, the district court issued judgment granting DOTD’s
exception of no right of action and dismissing plaintiffs’ claims with prejudice. In
written reasons, the district court found that plaintiffs’ settlement of the federal suit
prior to proceeding against DOTD created “extreme prejudice” to DOTD, which
“would be required to independently establish the potential fault of the now dismissed
defendants from the Federal Litigation.” According to the court, Article 425 requires
plaintiffs to assert all causes of action arising out of the transaction or occurrence that
is the subject matter of the litigation (here, the accident) in one proceeding, and the
failure of plaintiffs to timely amend their pleadings in federal court does not excuse
them from the requirements of Article 425.
Plaintiffs devolutively appealed the adverse ruling. Following briefing and
argument, the court of appeal issued an opinion reversing the district court’s ruling
sustaining the exception of no right of action. Carollo v. D.O.T.D., 21-0114
(La.App. 4 Cir. 10/14/21), ___ So.3d ___.
The court of appeal acknowledged that it was being tasked with exploring the
relationship between Article 425 and the res judicata statutes, La. R.S. 13:4231 and
13:4232. Specifically, the court pointed to the existence of a disagreement among the
circuit courts of appeal as to whether Article 425 operates as a stand alone claim
preclusion provision that does not require identity of parties for a claim to be
5

precluded or whether Article 425 is merely a reference to the requirements of res
judicata and, thus, all elements of res judicata, including identity of parties, must be
satisfied for a subsequent suit to be barred. The court noted that it had previously
been presented with, but did not reach, the precise issue in Breaux v. Avondale
Industries, Inc., 02-1713 (La.App. 4 Cir. 3/12/03), 842 So.2d 1115.2
Ultimately, after reviewing the official comments to Article 425 and the
relevant jurisprudence, the court was “persuaded” by the jurisprudence recognizing
that Article 425 is an integral part of the res judicata statutes and concluded that “all
the elements of res judicata must be met to preclude a claim or action under La.
C.C.P. art. 425.” Carollo, 21-0114 at 17-18, __ So.3d at ___. The court of appeal
explained that strictly construing Article 425 as its own claim preclusion provision
that only requires one element of res judicata–that the claim arise out of the same
transaction or occurrence–would effectively abrogate the res judicata statutes. Id.,
21-0114 at 18, __So.3d at__.
Applying this holding to the case before it, the court of appeal found that four
of the five elements of res judicata were satisfied in this case, but that the “identity
of the parties” element was absent. Therefore, the court ruled that the exception of
no right of action based on Article 425 could not be maintained. Id., 21-0114 at 19,
___ So.3d at ___. The court further determined that, even assuming all elements of
res judicata are not required to be met to trigger preclusion under Article 425, the
2 In Breaux, in reversing a district court judgment sustaining an exception of no right of action
based on splitting a cause of action under Article 425, the court of appeal did not reach the issue of
whether the identity of parties element of res judicata was required to be met for preclusion to
operate, but rather relied on the “interest of justice” exception to res judicata found in La. R.S.
13:4232(A)(1). Breaux, 02-1713 at 15; 842 So.2d at 1123.
6

exceptional circumstances of this case weighed against sustaining the exception of
no right of action.3 Id., 21-0114 at 19-20, ___ So.3d at ___.
Upon DOTD’s application, certiorari was granted to examine the relationship
between Article 425 and the res judicata statutes and, in the process, to resolve the
apparent split among the circuits as to whether Article 425 is a stand alone preclusion
provision or whether the article simply operates in tandem with the res judicata
statutes to put a plaintiff on notice at the outset of litigation that all causes of action
arising out of the transaction or occurrence that is the subject matter of the litigation
must be asserted. Carollo v. D.O.T.D., 21-01670 (La. 2/8/22), 332 So.3d 630.
LAW AND ANALYSIS
Louisiana Code of Civil Procedure art. 425(A), entitled “Preclusion by
judgment,” instructs: “A party shall assert all causes of action arising out of the
transaction or occurrence that is the subject matter of the litigation.”
The principles of res judicata, the primary basis for judgment preclusion in
Louisiana, are set forth in La. R.S. 13:4231, which provides:
Except as otherwise provided by law, a valid and final judgment
is conclusive between the same parties, except on appeal or other direct
review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
3 Those circumstances include the fact that: (1) plaintiffs expressly reserved their rights to proceed
against other parties who might be liable in the settlement agreement: (2) the prior suit was removed
to federal court by the defendants; (3) DOTD could not be sued in federal court; (4) the federal court
refused to allow plaintiffs to amend the federal suit to add DOTD as a defendant; and, (5) in denying
the amendment, the federal magistrate concluded that plaintiffs could nonetheless be afforded
complete relief because they were free to proceed against DOTD through other avenues. Carollo,
21-0114 at 20, ___ So.3d at ___.
7

extinguished and the judgment bars a subsequent action on those causes
of action.
(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to any
issue actually litigated and determined if its determination was essential
to that judgment.
Reduced to its simplest terms, the question presented for resolution is whether
Article 425 creates a separate and distinct preclusion remedy apart from res judicata.
As the court of appeal opinion in this case points out, a divergence of opinion has
developed among the circuit courts of appeal as to the proper answer to this question.
Two circuits – the First and the Fifth–have taken the position that Article 425
should be applied as written, and that it is a related but separate preclusion provision,
standing apart from res judicata. In Westerman v. State Farm Mut. Auto. Ins. Co.,
01-2159 (La.App. 1 Cir. 9/27/02), 834 So.2d 445, for example, the First Circuit
affirmed a district court judgment granting an exception of “preclusion by judgment”
under Article 425. The exception was filed by the plaintiff’s uninsured motorist
(UM) insurer in response to a suit filed against the UM carrier after the plaintiff had
settled and dismissed a previous suit against the driver of the vehicle that rear-ended
plaintiff, the vehicle’s owner, and the vehicle owner’s insurer. In addressing the
exception, the First Circuit reviewed the jurisprudence interpreting Article 425 prior
to its amendment in 1990 and concluded that the focus of that jurisprudence was on
preventing a litigant from dividing an obligation for the purpose of bringing separate
actions. Westerman, 01-2159 at 5, 834 So.2d at 447-448. Noting that the 1990
Comment to amended Article 425 indicates that the amendment “expands the scope
of this article to reflect the changes made in the defense of res judicata and puts the
parties on notice that all causes of action arising out of the transaction or occurrence
that is the subject matter of the litigation must be raised,” the First Circuit held that
8

under the current version of Article 425, “although a plaintiff’s claims may constitute
separate causes of action, if they arise out of the same transaction or occurrence, they
must be asserted in the same action.” Id., 01-2159 at 5, 834 So.2d at 448. Thus,
despite that fact that the claims against the UM insurer were based on separate causes
of action and were asserted against different parties, the First Circuit found that
plaintiff’s failure to assert the UM claim in the first action amounted to a waiver of
that claim under Article 425. Id., 01-2159 at 6, 834 So.2d at 448.
Likewise, in Handy v. Parish of Jefferson, 20-122 (La.App. 5 Cir. 6/1/20),
298 So.3d 380, the Fifth Circuit reversed a district court’s determination that Article
425 is to be read in pari materia with the res judicata statutes and instead held that
Article 425 is a distinct claim preclusion provision that only requires that two actions
arise out of the same transaction or occurrence for the second action to be barred. In
its analysis, the Fifth Circuit relied on the plain language of Article 425 to conclude
that the article is distinct from res judicata. Id., 20-122 at 11, 298 So.3d at 390.
Noting that, unlike res judicata, Article 425 contains no language requiring identity
of parties, the court declined to read such language into the article, reasoning that to
do so would render Article 425 superfluous. Id. Rather, citing with approval the
First Circuit’s analysis in Westerman that construed Article 425 in conjunction with,
but not as identical or synonymous with, res judicata, the Fifth Circuit opined that
giving effect to the article as written is consistent with the purpose of the article,
which is to prevent “relitigation of issues already dealt with by the courts to maximize
judicial economy and minimize conflicting judgments and to prevent harassment,
delay and unnecessary expense to a defendant.” Id. Deferring to the role of the court
as one confined to interpreting legislation and not creating it, the Fifth Circuit
9

declined to “rewrite” Article 425 to incorporate the identity of parties requirement of
res judicata. Id., 20-122 at 11, 298 So.3d at 390-391.
In contrast to the First and Fifth Circuits, the Second, Third, and Fourth Circuit
Courts of Appeal have adopted a different interpretation of Article 425. These courts
hold that Article 425 is not an independent claim preclusion provision, but rather
simply references the requirements of res judicata, all elements of which must be
satisfied for preclusion to operate.
The first court to reach this conclusion was the Third Circuit. In Spires v.
State Farm Mut. Auto. Ins. Co., 08-573 (La.App. 3 Cir. 11/5/08), 996 So.2d 697,
State Farm, the UM insurer of plaintiffs, filed an exception of “Preclusion by
Judgment” based on Article 425 in response to a suit filed by plaintiffs (who had been
involved in a car accident) after they settled and dismissed a previous suit against the
tortfeasor and her insurer. The district court granted the exception, relying on
Westerman. The court of appeal reversed, expressly disagreeing with the First
Circuit’s analysis in Westerman. Spires, 08-573 at 3, 996 So.2d at 699. The Third
Circuit found that because Article 425 was amended in 1990 at the same time changes
were made to the res judicata statutes, these provisions must be read in pari materia.
Id. Noting that Article 425 contains no penalty provision, the court concluded that
Article 425 is not an independent preclusion device, but merely functions as a
reference to the principles of res judicata. Id., 08-573 at 3, 996 So.2d at 700. Thus,
the court analyzed State Farm’s exceptions pursuant to the rules of res judicata, and,
finding no identity of parties, denied State Farm’s exception. Id., 08-573 at 4, 996
So.2d at 700.
The Spires decision was quickly followed by the decision of the Second
Circuit in Ward v. State, Dept. Of Transp. & Dev. (Office of Highways), 43,948
10

(La.App. 2 Cir. 1/28/09), 2 So.3d 1231. In Ward, plaintiffs filed two suits for the
same damages arising from the same automobile accident: the first suit set forth a
claim against DOTD for improper road maintenance; the second was a suit against
the driver of the other vehicle involved in the accident and that driver’s liability
insurer. The liability insurer in turn invoked a concursus proceeding (to which
DOTD was not a party) and deposited its policy limits into the registry of the court.
After a consent judgment was entered in the concursus proceeding, the second
suit–the suit against the other driver–was dismissed. DOTD then filed an exception
of no cause of action in the sole remaining suit, alleging that plaintiffs had improperly
split their cause of action pursuant to Article 425.
In reversing the district court decision granting DOTD’s exception, the Second
Circuit reviewed the jurisprudence, the 1990 amendments to Article 425, and the res
judicata statutes and the revision comments thereto to conclude that Article 425
“operates in tandem with the res judicata statutes and they must be read in pari
materia.” Ward, 43,948 at 4, 2 So.3d at 1234. Agreeing with the Third Circuit that
Article 425 contains no penalty provision and instead merely references res judicata,
the Second Circuit held that an exception of res judicata is the proper procedural
vehicle to enforce Article 425’s mandate of asserting all causes of action arising out
of the same transaction or occurrence in one lawsuit. Id. Applying the rules of res
judicata to DOTD’s exception, the Second Circuit found that the plaintiffs’ second
lawsuit against the other driver did not preclude the initial action against the DOTD
because there was no identity of parties. Id., 43,948 at 5-6, 2 So.3d at 1235.
In the instant case, after reviewing the jurisprudence and the official comments
to Article 425, the Fourth Circuit found itself persuaded by the Third Circuit’s
approach in Spires which recognizes that Article 425 is an integral part of the res
11

judicata statutes. Carollo, 21-0114 at 17-18, ___ So.3d at ___. The Fourth Circuit
therefore joined with the Third and Second Circuits in concluding that all elements
of res judicata must be met to preclude a claim or action under Article 425. Id. 21-
0114 at 18, __So.3d at__. To hold otherwise, i.e., to recognize Article 425 as a stand
alone preclusion provision, would, the Fourth Circuit reasoned, “result in abrogating
the res judicata statutes and its supporting jurisprudence.” Id.
Given the foregoing, the immediate task that presents itself for this court is to
determine which of the two competing interpretations of Article 425 outlined above
is the correct one. Because the question presented is one of statutory interpretation,
and therefore a question of law, our review is de novo. Red Stick Studio
Development, L.L.C. v. State ex rel Dept. of Economic Development, 10-0193, p.
9 (La. 1/19/11), 56 So.3d 181, 187.
Mindful that the fundamental question in all cases of statutory interpretation
is legislative intent and that the rules of statutory construction are designed to
ascertain and enforce that intent, attention is turned to those well-settled rules in an
effort to discern the legislative intent behind the enactment of Article 425. M.J.
Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 26-
27.
The starting point in the interpretation of any statute is the language of the
statute itself. Id. Thus, “[w]hen a law is clear and unambiguous and its application
does not lead to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the legislature.” La. C.C.
art. 9; La. R.S. 1:4. However, “[w]hen the language of the law is susceptible of
different meanings, it must be interpreted as having the meaning that best conforms
to the purpose of the law.” La. C.C. art. 10. Moreover, “[w]hen the words of a law
12

are ambiguous, their meaning must be sought by examining the context in which they
occur and the text of the law as a whole.” La. C.C. art. 12.
In construing statutory language, it is presumed that the legislature enacts each
statute with deliberation and with full knowledge of all existing laws on the same
subject; therefore, legislative language will be interpreted on the assumption that the
legislature was aware of existing statutes, the rules of statutory construction, and with
knowledge of the effect of their acts and with a purpose in view. M.J. Farms, 07-
2371 at 13-14, 998 So.2d at 27. As a result, where it is possible, courts have a duty
in the interpretation of a statute to adopt a construction which harmonizes and
reconciles it with other provisions dealing with the same subject matter. La. C.C. art.
13; M.J. Farms, 07-2371 at 14; 998 So.2d at 27.
With these principles in mind, attention is turned to an examination of the
language of Article 425(A), which, as previously stated, recites: “A party shall assert
all causes of action arising out of the transaction or occurrence that is the subject
matter of the litigation.”
As explained above, the courts of appeal have arrived at two different
interpretations of this language and both interpretations spring from the absence
(rather than the presence) of certain language in the article. For example, because
Article 425 contains no language requiring the parties in two suits to be the same, the
First and Fifth Circuits have found that Article 425 is an independent claim
preclusion provision that only requires that claims arise out of the same transaction
or occurrence for the second suit to be precluded. The Second, Third, and Fourth
Circuits, on the other hand, have focused on the lack of any penalty provision in the
article to conclude that Article 425 is merely a reference to the requirements of res
judicata, and that a claim cannot be precluded unless it is between the same parties
13

to a prior suit. Based strictly on the express language of Article 425(A), both
interpretations adopted by the courts of appeal are found to be plausible. Therefore,
to correctly interpret Article 425(A), the legislative intent behind the codal provision
must be examined.
Louisiana C.C.P. art. 425, in its present form, was enacted in 1990 in
conjunction with a legislative revision of the rules of res judicata. See, 1990 La. Acts
521, § 1. Since Article 425 and the res judicata statutes were revised in the same Act
and are obviously related, it is appropriate to consider them in pari materia. See, La.
C.C. art. 13.
As explained in Burguieres v. Pollingue, 02-1385, p. 6 (La. 2/25/03), 843
So.2d 1049, 1052, the 1990 Act effected a substantial change in the law of res
judicata:
Historically, the Louisiana doctrine of res judicata was civilian in
origin. Prior to its amendment in 1990, Louisiana’s res judicata
legislation was derived directly from Article 1351 of the Code
Napoleon. The source of Article 1351 in the Code Napoleon was
Pothier, Obligations, No. 889, with Pothier’s work being synthesized
from the Roman jurisconsults.
The civilian concept of res judicata is based upon a presumption
of correctness. Under this concept, the prior legislation established that
a decided case precluded a second suit only if the second suit involved
the same parties, the same cause, and the same object of demand as the
prior suit. In contrast to the civil law, the common law doctrine of res
judicata is based on a concept of extinguishment of the cause of action.
Under the federal res judicata law, a judgment bars a subsequent suit if
both cases involve the same parties, the prior judgment was rendered by
a court of competent jurisdiction, the prior decision was a final judgment
on the merits, and the same cause of action is at issue in both cases.
Thus, as a result of our civilian heritage, Louisiana’s res judicata law, at
least prior to the 1990 amendment, was much narrower in scope than its
common law counterpart. [Internal citations omitted]
Burguieres, 02-1385 at 6-7, 843 So.2d at 1052-53.
14

The 1990 Act significantly expanded the civilian concept of res judicata to
make it more akin to its common law counterpart. Bd. of Sup’rs of Louisiana State
Univ. v. Dixie Brewing Co., Inc., 14-0641, p. 6 (La.App. 4 Cir. 11/19/14), 154 So.3d
683, 688; M. David Kurz and Mark W. Frilot, Res Judicata in Louisiana: A Synthesis
of Competing Interests, 53 La. B.J. 445 (2006). With the amendment, the chief
inquiry “is not whether the second action is based on the same cause or cause of
action (a concept which is difficult to define), but whether the second action asserts
a cause of action which arises out of the transaction or occurrence which was the
subject matter of the first action.” La. R.S. 13:4231, Comments--1990 (a);
Burguieres, 02-1385 at 7-8, 843 So.2d at 1053.
The revision of the res judicata rules necessitated the revision, in the same Act,
of several related procedural provisions. Olivia Guidry, Comment, Res Judica-duh!
The Impermissible Expansion of Claim Preclusion Through Louisiana Code of Civil
Procedure Article 425, 82 La.L.Rev. 1181, 1183 (2022). Among those amended
provisions was Article 425. See, 1990 La. Acts 521, § 1.
Prior to its amendment, Article 425, entitled “Division of cause of action,
effect,” provided:
An obligee cannot divide an obligation due him for the purpose
of bringing separate actions on different portions thereof. If he brings
an action to enforce only a portion of the obligation, and does not amend
his pleading to demand the enforcement of the full obligation, he shall
lose his right to enforce the remaining portion.
This version of Article 425 was generally regarded as a codification of the
jurisprudentially developed claim preclusion rule commonly referred to as “splitting
a cause of action,” and was most commonly used to prohibit plaintiffs from filing
multiple suits against the same defendant for the same harm, but seeking different
relief. Guidry, 82 La.L.Rev. at 1193; see, e.g., Richard v. Travelers Insurance Co.,
15

323 So.2d 176 (La.App. 3 Cir. 1975) (holding that plaintiff split his cause of action
by filing suit in city court for recovery of property damages arising from an
automobile accident, and then subsequently filing suit in district court for medical
expenses incurred as a result of the same accident, waiving his right to sue for the
medical expenses pursuant to Article 425).
Under the pre-1990 version of Article 425, a plaintiff who improperly split his
or her cause of action faced a penalty: waiver, or loss of the right to enforce the
remaining portion of the obligation due. The current version of Article 425, as
amended in 1990, does not contain a penalty provision. Indeed, the article does not
provide any consequences for noncompliance with its mandate. As noted by the
Second, Third, and Fourth Circuit Courts of Appeal, this omission is significant. The
omission indicates a legislative intent that Article 425 not have its own enforcement
power.4 See, La. R.S. 24:177(C); Brown v. Texas-LA Cartage, Inc., 98-1063, p. 7
(La. 12/1/98), 721 So.2d 885, 889 (where a new statute is worded differently from a
preceding statute, the legislature is presumed to have intended to change the law).
That Article 425 was not intended to have independent enforcement effect is
underscored by the revision comments to the article. While these comments are not
the law, they may be and, in this case, are helpful in discerning legislative intent.
Tracie F. v. Francisco D., 15-1812, p. 8 (La. 3/15/16), 188 So.3d 231, 238 (quoting
Arabie v. CITGO Petroleum Corp., 10-2605, pp. 4-5 (La. 3/13/12), 89 So.3d 307,
312). The 1990 revision comment to Article 425 explains: “This amendment expands
4 Prior to its amendment, Article 425 was primarily invoked in matters where res judicata did not
apply. Guidry, 82 La. L.Rev. at 1199. When the res judicata statutes were expanded in the 1990
Act, res judicata extended to situations in which Article 425 had traditionally been used. Id. Thus,
it is reasonable to assume that the legislature recognized that Article 425 as an independent
preclusion provision was no longer necessary, and amended the article accordingly.
16

the scope of this Article to reflect changes made in the defense of res judicata and
puts the parties on notice that all causes of action arising out of the transaction or
occurrence that is the subject matter of the litigation must be raised.” (Emphasis
added.). Clearly, the comments, which link Article 425 to the defense of res judicata,
indicate a legislative intent that Article 425 serve simply as “notice” to litigants,
during the course of litigation, that all causes of action arising out of the transaction
or occurrence that is the subject matter of the litigation must be raised.
The expression of legislative intent found in the comments is consistent with
the contemporaneous legislative history of the 1990 Act; specifically with the minutes
of the Civil Law and Procedure Committee of the House of Representatives.5 At the
Committee meeting on June 18, 1990, Professor Howard L’Enfant, representing the
Louisiana State Law Institute, appeared in support of the bill (Senate Bill No. 639)
which eventually became Act 521. In response to direct questioning about the effect
of Article 425, Professor L’Enfant explained that Article 425 is an “admonition” and
its effect “will come from La. R.S. 13:4231 and R.S.13:4232.” See, Civil Law and
Procedure Committee, Minutes of Meeting, 1990 Regular Session, June 18, 1990, p.
12. He further explained that “Civil Code Article No. 425 warns litigants that res
judicata will bar their claims so they must assert all causes of action.” Id. This
explanation confirms our reading of the comments as expressing a legislative intent
that Article 425 have no independent enforcement effect, but rather serve to put
litigants “on notice” that they must raise all causes of action arising out of the
transaction or occurrence that is the subject matter of the litigation in their pleadings.
5 Mindful of the admonition in La. R.S. 24:177(E)(3) that committee minutes “shall not constitute
proof or indicia of legislative intent,” this court does not draw upon the minutes as proof of
legislative intent. Rather the minutes are cited solely as corroboration of the understanding of
legislative intent garnered through other sources; i.e., the revision comments and the rules of
statutory interpretation.
17

A different reading of the article would run afoul of our obligation, under the
rules of statutory interpretation, to give effect to all parts of a statute and construe no
sentence, clause or word as meaningless. Moss v. State, 05-1963, p. 15 (La. 4/4/06),
925 So.2d 1185, 1196. As noted by the court of appeal in this matter, interpreting
Article 425 as an independent claim preclusion device that does not require identity
of parties “will result in abrogating the res judicata statutes.” Carollo, 21-0114 at
18, ___ So.3d at ___. Indeed, it would seem illogical, and an absurd result, for the
legislature to have amended the res judicata statute, La. R.S. 13:4231, to require both
identity of parties and that the causes of action arise out of the same transaction or
occurrence and then, in the same Act, to have expanded the scope of Article 425 to
require only that the causes of action arise out of the same transaction or occurrence.
Under such a scenario, litigants would undoubtedly rely solely on Article 425,
rendering the “same parties” requirement in La. R.S. 13:4231 superfluous. Such an
interpretation of Article 425 that would render the res judicata statutes meaningless
cannot be supported, when a reasonable interpretation exists. See, e.g., St. Martin
Parish Police Jury v. Iberville Parish Police Jury, 33 So.2d 671, 676-677 (1947)
(“We are convinced, however, that the Legislature included these words in the statute
for some definite purpose, and that they cannot be declared meaningless if we can
give them a reasonable interpretation.”).
Based on review of La. C.C. art. 425, the res judicata statutes, and the 1990
Act which amended these provisions, this court concurs in the assessment of the
Second, Third, and Fourth Circuit Courts of Appeal that a proper statutory
interpretation leads to the conclusion that the legislature intended that Article 425, as
amended, serve as a rule for parties to follow during litigation; i.e., as a warning or
notice that all causes of action arising out of the same transaction or occurrence must
18

be asserted in the same suit. The article is not an independent preclusion provision,
but rather is enforced through the exception of res judicata. See, Everything on
Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La. 1993)
(“[A]ll actions arising out of the same transaction or occurrence must be brought
together or be subject to a plea of res judicata. La. Rev. Stat. 13:4231; La Code Civ
Proc. art. 425.”). Because Article 425 is enforced through res judicata, all elements
of res judicata–including identity of parties–must be satisfied for preclusion to
operate.6
In this case, as the court of appeal correctly found, four of the five elements of
res judicata are satisfied: (1) there is a valid judgment; (2) that judgment is final; (3)
the cause or causes of action asserted in the instant suit existed at the time of the final
judgment in the litigation in federal court; and (4) the cause or causes of action
asserted in the instant suit arise out of the same transaction or occurrence that was the
subject matter of the federal suit. The element of res judicata that is missing in this
case is identity of parties. DOTD was not a party in the federal litigation. Therefore,
the court of appeal correctly held that DOTD’s exception may not be maintained.
CONCLUSION
For the reasons expressed above, the ruling of the court of appeal reversing the
district court’s judgment sustaining the exception of no right of action and remanding
this matter to the district court for further proceedings is affirmed.
AFFIRMED
6 To the extent that the decisions of the First and Fifth Circuit Courts of Appeal in Westerman and
Handy reach a different conclusion, those decisions are overruled.
19

SUPREl\1E COURT OF LOUISIANA
No. 2021-C-01670
CARLO CAROLLO, JR., AND FRANK CAROLLO, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF CARLO CAROLLO, SR. AND THE
ESTATE OF ANGELINA CAROLLO
vs.
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT
On Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of St. Bernard
Hughes, J., concurs.
I regret that this litigation has been needlessly extended, but I do not argue
with the technical result.

S
UPREME COURT OF LOUISIANA
No
. 2021-C-01670
CARL
O CAROLLO, JR., AND FRANK CAROLLO, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF CARLO CAROLLO, SR. AND THE
ESTATE OF ANGELINA CAROLLO
VS.
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND
DEVELOPMENT
O
n Writ of Certiorari to the Court of Appeal, Fourth Circuit, Parish of St. Bernard
G
enovese, J., dissents and assigns reasons.
I
disagree with the majority’s conclusion that all five elements of res judicata
must be satisfied in order to trigger the application of La.C.C.P. art. 425 .
Specifically, I disagree that the “same parties” requirement is implicitly
encompassed by the language of La.C.C.P. art. 425. Instead, it is my view that res
judicata and La.C.C.P. art. 425 are related, but distinct legal concepts.
Recently, this Court affirmed the long- standing jurisprudential rules
governing statutory interpretation:
“As with statutory interpretation, when interpreting a constitutional
provision, the starting point is with the language of the provision.” Civ.
Serv. Comm’n of City of New Orleans v. City of New Orleans, 02-1812,
p. 10 (La. 9/9/03), 854 So.2d 322, 330 (internal quotation and citation
omitted). “When a constitutional provision is plain and unambiguous,
its language must be given effect.” Id.
M
ellor v. Parish of Jefferson, 21-0858, pp. 3-4 (La. 3/25/22), 338 So.3d 1138, 1141.
Louisiana Code of Civil Procedure art. 425(A), which is titled “Preclusion by
judgment,” states as follows: “A party shall assert all causes of action arising out of
the transaction or occurrence that is the subject matter of the litigation.” The statute,
as written, lacks the “identity of the parties” requirement that is written into the res

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judicata statute, La.R.S. 13:4231 .1 In my view, if the legislature had intended
La.C.C.P. art. 425 to encompass the “identity of the parties” requirement of res
judicata, it would have written it into the statute. I find that the language of La.C.C.P.
art. 425 is plain and unambiguous, and requires no further interpretation. Therefore,
I find that it should be applied as written, as the Louisiana First and Fifth Circuit
Courts of Appeal determined.
However, the requirement in La.C.C.P. art. 425 that a party must join all
claims occurring out of the same transaction or occurrence or risk preclusion of the
later-raised claims is not absolute and will yield to the interests of justice. Breaux v.
Avondale Indus., Inc ., 02-1713, p. 15 (La. App. 4 Cir. 3/12/03), 842 So. 2d 1115,
1123. In this case, however, I find that the interests of justice would not preclude the
application of La.C.C.P. art. 425. Plaintiffs had the opportunity to initially sue the
DOTD in state court, and then had the additional opportunity to add the DOTD in
the federal court proceeding. Plaintiffs did not timely do so. Clearly, the suit against
the DOTD in this case stemmed from the same transaction or occurrence as the first

1 This statute defines the parameters of res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive
between the same parties, except on appeal or other direct review, to the following
extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the
time of final judgment arising out of the transaction or occurrence that is the subject
matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the
time of final judgment arising out of the transaction or occurrence that is the subject
matter of the litigation are extinguished and the judgment bars a subsequent action
on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any
subsequent action between them, with respect to any iss ue actually litigated and
determined if its determination was essential to that judgment.

Stated another way, res judicata applies when the follow criteria are satisfied: ( 1) the
judgment is valid; (2) the judgment is fina l; (3) the parties are the same; (4) the cause or
causes of action asserted in the second suit were present at the time of final judgment in
the first litigation; and, (5) the cause or causes of action asserted in the second suit arose
out of the transaction or occurrence that was the subject matter of the first litigation.
Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053.

3 of 3

suit. There are no exceptional circumstances in this case that would require a
deviation from the mandate of La.C.C.P. art. 425.
Therefore, I would reverse the court of appeal’s ruling and reinstate the trial
court’s judgment sustaining the DOTD’s peremptory exception of no right of action,
thereby dismissing plaintiffs’ claims against the DOTD with prejudice.