State of Louisiana v. Robert Berry

Judgment rendered April 13, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,231-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Plaintiff-Appellant

versus

ROBERT BERRY Defendant-Appellee
*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. C-163,047

Honorable Charles A. Smith, Judge

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LOUISIANA DEPT. OF JUSTICE, Counsel for Plaintiff-
CIVIL DIVISION Appellant, the State of
By: Assistant Attorneys General: Louisiana
Madeline Carbonette
Emily G. Andrews
Angelique Duhon Freel
David Jeddie Smith, Jr.
Alicia E. Wheeler

LOUISIANA DEPT. OF JUSTICE, Counsel for Plaintiff-
CIVIL DIVISION Appellant, Attorney
By: Madeline Carbonette General Jeffrey M.
Emily G. Andrews Landry, in His Official
Angelique Duhon Freel Capacity

LAW OFFICE OF RONALD J. Counsel for Defendant-
MICIOTTO, LLC Appellee, Robert Berry
By: Ronald J. Miciotto
Justin P. Smith

*****

Before PITMAN, STEPHENS, and THOMPSON, JJ.

PITMAN, J.

Plaintiff-Appellant the State of Louisiana, through the Attorney

General’s Office (the “AG”), appeals the district court’s judgment granting

Defendant-Appellee Robert Berry’s exception of res judicata and dismissing

its petition. For the following reasons, we affirm.

FACTS

On July 10, 2020, the AG notified Berry of a complaint that he was

violating the Dual Officeholding and Dual Employment Law through his

service as a member of the Board of Commissioners (the “Board”) of the

Cypress Black Bayou Recreational and Water Conservation District (the

“District”) and employment as the District’s Executive Director.

On September 8, 2020, the AG filed a petition for declaratory

judgment (the “AG’s suit”). It requested that the district court declare that

Berry violated the Dual Officeholding and Dual Employment Law, La.

R.S. 42:64, by serving as a member of the District’s Board and by holding

employment as the District’s Executive Director; declare either office vacant

and enjoin Berry from further carrying on the duties of that office; and order

Berry to reimburse the District all pay, allowances and other compensation

for the position vacated, for the six months preceding the filing of this suit.

On September 24, 2020, Berry filed an exception of lis pendens.1 He

stated that the district attorney of the 26th Judicial District (the “DA”), filed

an identical suit (the “DA’s suit”) in the same court one month prior to the

AG’s suit.

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He also filed, in the alternative, an exception of nonjoinder of an indispensable
party, i.e., the District. At a hearing on December 10, 2020, the district court determined
that the District is not an indispensable party and overruled the exception of nonjoinder.

On November 24, 2020, the AG filed an opposition to Berry’s

exception. It argued that its suit and the DA’s suit are not on the same

transaction or occurrence and do not involve the same plaintiffs in the same

capacities and, therefore, that Berry cannot meet the requirements of La.

C.C.P. art. 531. It also stated that a final judgment in the DA’s suit would

not be res judicata in the instant suit.

On December 3, 2020, Berry filed an exception of res judicata. He

stated that in the DA’s suit, the district court granted his motion for

summary judgment and determined that he was not in violation of the Dual

Officeholding and Duel Employment Law.2 He requested that the district

court in the AG’s suit take judicial notice of that judgment. He argued that

because the district court in the DA’s suit ruled on the same subject matter

as in the AG’s suit, the exception of res judicata should be granted. In the

alternative, Berry re-urged his exception of lis pendens.

On December 8, 2020, the AG filed an opposition to the exception of

res judicata. It adopted and incorporated its arguments in opposition to

Berry’s exception of lis pendens. It contended that the parties are not the

same and that no privity exists between the AG and the DA. It also stated

that it had no control over the DA’s suit, that its interests were not

adequately represented by the DA and that the DA made no effort to oppose

the substance of Berry’s claims. It argued, in the alternative, that

exceptional circumstances exist in this case and, therefore, that res judicata

does not apply.

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On December 9, 2020, he supplemented this exception with a copy of the
December 2, 2020 written judgment.
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On December 10, 2020, a hearing was held on the exceptions. The

district court determined that the exception of lis pendens was moot because

of the December 2, 2020 judgment in the DA’s suit. It noted that this

judgment was a valid, final judgment and that the cause of action in the

AG’s suit existed at the time of the final judgment in the DA’s suit. It

determined that the DA and AG are, in essence, the same party as both

attempted to enforce the same statute against Berry. Regarding whether the

causes of action asserted in the AG’s suit arose out of the transaction or

occurrence that was the subject matter of the DA’s suit, the district court

determined that the causes of action are the same and that they arose from

Berry holding two offices. Accordingly, the district court granted the

exception of res judicata.

On December 23, 2020, the district court signed a judgment

dismissing Berry’s exception of lis pendens, granting his exception of res

judicata and dismissing the AG’s petition with prejudice.

The AG appeals.

DISCUSSION

In its four assignments of error, the AG argues that the district court

erred by granting Berry’s exception of res judicata. It contends that the

district court erroneously concluded that the AG and the DA are the same

parties and that their suits arose from the same transaction or occurrence. It

argues that this case presents exceptional circumstances, which should have

compelled the district court to deny the exception of res judicata.

Berry argues that the trial court properly granted his exception of res

judicata because the AG’s suit is clearly precluded by the prior judgment in

the DA’s suit. He contends that the suits involve the same parties in the
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same capacities and involve the same transaction or occurrence. He argues

that this case does not involve complex procedural situations and, therefore,

that no exceptional circumstances are present.

Louisiana’s law on res judicata is set forth in La. R.S. 13:4231 and

states:

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 issue actually litigated and determined if its
determination was essential to that judgment.

A reading of La. R.S. 13:4231 reveals that a second action is

precluded when all of the following are satisfied: (1) the judgment is valid;

(2) the judgment is final; (3) the parties are the same; (4) the cause or causes

of action asserted in the second suit existed 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 (La. 2/25/03),

843 So. 2d 1049. For purposes of res judicata, a valid judgment is one

rendered by a court with jurisdiction over both the subject matter and the

parties after proper notice was given, a final judgment is one that disposes of

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the merits in whole or in part and the parties are the same when they appear

in the same capacities in both suits. Id.

La. R.S. 13:4232(A)(1) provides an exception to the general rule of

res judicata and states that a judgment does not bar another action by the

plaintiff when exceptional circumstances justify relief from the res judicata

effect of the judgment.

The party who urges the exception of res judicata bears the burden of

proving its essential elements by a preponderance of the evidence. Eddens

v. Exceptional Client Care, LLC, 48,747 (La. App. 2 Cir. 2/26/14),

135 So. 3d 784. If there is any doubt as to its applicability, the exception

must be overruled. Id. The introduction of the entire record of the

underlying proceeding is not required for the mover to prove entitlement to

res judicata. Hawkins v. Span Sys., Inc./DFW Int’l Airport OCIP, 51,378

(La. App. 2 Cir. 5/17/17), 223 So. 3d 593.

The res judicata effect of a prior judgment is a question of law that is

reviewed de novo on appeal. Alpine Meadows, L.C. v. Winkler, 49,490 (La.

App. 2 Cir. 12/10/14), 154 So. 3d 747, writ denied, 15-0292 (La. 4/24/15),

169 So. 3d 357.

In the case sub judice, Berry clearly proved the elements of res

judicata by a preponderance of the evidence. The December 2, 2020

judgment in the DA’s suit is a valid, final judgment. It was rendered by a

court with jurisdiction over both the subject matter and the parties after

proper notice was given, and it disposed of the merits in whole because it

declared that Berry was not in violation of La. R.S. 42:64. The parties in the

DA’s suit and the AG’s suit are the same and appear in the same capacities

in both suits, and the identical causes of action arose out of the same
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transaction or occurrence. In both the DA’s suit and the AG’s suit, the

representative of the state sought declaratory judgment of whether Berry was

violating the Dual Officeholding and Dual Employment Law through his

service as a member of the District’s Board and employment as the District’s

Executive Director. Exceptional circumstances, as considered in La. R.S.

13:4232, do not exist in this case. Therefore, the district court did not err in

granting the exception of res judicata and dismissing the AG’s petition with

prejudice.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment

granting Defendant-Appellee Robert Berry’s exception of res judicata and

dismissing the petition of Plaintiff-Appellant the State of Louisiana, through

the Attorney General’s Office. Costs in the amount of $2,911.80 are

assessed to the State of Louisiana, through the Attorney General’s Office.

AFFIRMED.

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