John Aaron Duhon v. Lafayette City-Parish Consolidated Government

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-657

JOHN AARON DUHON, ET AL

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NUMBER 2004-3599
HONORABLE PATRICK MICHOT, PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Hawkins & Villemarette, L.L.C.
Scott M. Hawkins
Chris Villemarette
102 Asma Boulevard
Saloom III, Suite 110
Lafayette, Louisiana 70508
(337) 233-8005
COUNSEL FOR PLAINTIFFS/APPELLANTS:
John Aaron Duhon, et al.

Roy, Bivins, Judice, Roberts & Wartelle
Patrick M. Wartelle
Post Office Drawer Z
Lafayette, Louisiana 70502
(337) 233-7430
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette City-Parish Consolidated Government

COOKS, Judge.

STATEMENT OF THE CASE

This case arises out of a political dispute between City-Parish Councilman

Lenwood Broussard and Linda Navarre Duhon, one of the thirty-five plaintiffs in this

suit. Mr. Broussard and Mrs. Duhon have traveled a long and litigious road together

beginning in 1999 when Mrs. Duhon was a candidate for the council seat held by Mr.

Broussard. The following is a brief legal history of this dispute.

In September 1999, Mr. Broussard filed an action in district court objecting

to the candidacy of Mrs. Duhon. The issue in that suit was whether Mrs. Duhon was

a resident of Lafayette Parish and, thereby, eligible to run as a candidate for the

Lafayette City-Parish Council in the primary election on October 23, 1999. The

district court found Mrs. Duhon’s residence, located at 101 Adola Road, Maurice,

Louisiana, was within the boundary of Vermilion Parish and, therefore, Mrs. Duhon

was ineligible to run for a seat on the Lafayette City-Parish Council. The trial court

relied on the testimony of the parish engineer for Vermilion Parish, the assistant

director of Public Works for Lafayette Parish and a licensed land surveyor. These

witnesses testified, based on parish maps, that 101 Adola Road was shown to be

located within Vermilion Parish. This court affirmed, specifically leaving open the

question as to the exact location of the boundary between the two parishes. This

court stated:

Defendant also raised the exception of indispensable party
arguing that the Lafayette Consolidated Government had an
indispensable interest in the establishment of the boundary line between
Lafayette and Vermilion Parishes. In the present case the trial court did
not establish or change the parish boundary line, it merely made a
factual determination based on expert testimony that Ms. Duhon’s home
was located in Vermilion Parish.

Broussard v. Duhon, 99-1426, p. 5 (La.App. 3 Cir. 9/21/99), 748 So.2d 14, 16, writ
denied, 747 So.2d 1129 (La. 1999).

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Subsequent to the appellate court decision, the State Tax Commission deleted

John Aaron and Linda Navarre Duhon’s residence from the tax rolls of Lafayette

Parish, indicating on the form the Duhon’s property was located in Vermilion Parish.

In response, Mr. Duhon, along with twenty-four of his neighbors, filed a lawsuit in

the United States District Court for the Western District of Louisiana. Named as

Defendants were members of the Lafayette City-Parish Consolidated Government,

members of the Vermilion Parish Police Jury, the Vermilion and Lafayette Parish tax

assessors and registrars of voters, the State Land Office, the State Attorney General,

and the Louisiana Tax Commissioner. The Plaintiffs asserted federal question

jurisdiction pursuant to 42 U.S.C. § 1983. Specifically, the Plaintiffs alleged the

Defendants violated their constitutional rights under the Fourteenth Amendment’s

Due Process Clause by conspiring to change the boundary line between Lafayette and

Vermilion Parishes, thereby “exiling” them from Lafayette Parish and removing their

names from the tax assessment and voter registration rolls of Lafayette Parish. The

Plaintiffs asserted an Equal Protection violation “in that they are now being treated

as residents of Vermilion Parish because Linda Navarre Duhon exercised her

constitutional right to run for elective office within Lafayette.” Additionally, the

Plaintiffs alleged a violation of their First Amendment “rights to freedom of

association within the political process and the school system of Lafayette Parish.”

The Plaintiffs alleged their “exile” was “for purely political reasons” and was done

“in direct contravention of Louisiana statutes and constitutional provisions which

establish substantive and procedural rights respecting the change of parish

boundaries, and is a response to the qualification of Linda Duhon.” The Plaintiffs

requested injunctive relief and damages and sought to have their names reinstated on

the Lafayette Parish tax assessment and voter registration rolls. The Defendants

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argued neither the Constitution nor any federal statutes were violated, and therefore,

the federal court lacks subject matter jurisdiction. The federal court agreed and

dismissed the lawsuit, stating:

Plaintiffs’ allegations of constitutional violations of due process, equal
protection and freedom of association are without merit. Because the
plaintiffs have not alleged specific facts which constitute either a
violation of clearly established constitutional rights under current law
or under the law as clearly established at the time of the events in
question, this Court has no subject matter jurisdiction.

Duhon v. Consolidated Government of Lafayette, et al., Docket No. 00-CV-1690
(W.D.La. 3/27/01).

A judgment was signed in accordance with the decision dismissing with

prejudice the Plaintiffs’ claims under Title 42 §1983 and dismissing without prejudice

the Plaintiffs’ state law claims. The judgment of the federal district court was

affirmed on appeal. Duhon v. Consolidated Government of Lafayette, 31 Fed. Appx.

838, C.A. 5 (La.), 2002, cert. denied, 536 U.S. 940, 122 S.Ct. 2621. Despite the lack

of subject matter jurisdiction, the federal court opinion discussed in detail one of the

issues raised by Plaintiffs, namely whether the Lafayette Consolidated Government

followed the requirements of state law in establishing the boundary. This argument

would be raised later in the Plaintiffs’ state court suit for an injunction and

declaratory judgment.

The Plaintiffs asserted two state statutes were at issue, La.R.S. 33:141 and

La.R.S. 50:221. Louisiana Revised Statutes 33:141 mandates the procedure when a

parish is changing an existing boundary, while Louisiana Revised Statutes 50:221-

224 mandates the procedure when a parish is merely seeking to clarify an already

existing boundary.

Louisiana Revised Statutes 33:141 provides, in relevant part:

Whenever the police jury of any parish passes an ordinance changing a
boundary line between it and any adjoining parish, it shall serve the

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president of the police jury of the adjoining parish with a copy of the
ordinance. If the police jury of the second parish concurs in the object
and purposes of the ordinance, both police juries shall pass ordinances
providing for special elections to be held in both parishes within 60
days from the passage of the ordinances.

Louisiana Revised Statutes 50:221 provides, in relevant part:

Whenever the governing authority of any parish desires to ascertain and
fix the boundary line of any adjoining parish, it shall pass an ordinance
to that effect fixing the time and place for starting the running of the
boundary. It shall then serve the presiding officer of the governing
authority of the adjoining parish with a copy of the ordinance and with
notice, at lease six months in advance, of the time and place of starting
the running of the boundary.

The federal court found La.R.S. 33:141 was inapplicable because the boundary

between the parishes was never established by ground survey and the two parishes

were seeking to clarify the boundary rather than change an existing boundary.

Therefore, the court found Lafayette Parish and Vermilion Parish complied with the

requirements of La.R.S.50:221. However, since the federal court ultimately found

it lacked subject matter jurisdiction to hear the case, any discussion relative to this

issue is non-binding dicta.

On April 16, 2002, Ordinance No. 088-2002 was adopted by the Lafayette

Consolidated Government, (Vermilion Parish adopted similar ordinance on May 6,

2002) authorizing the State Land Office to re-establish the location of the parish

boundary. In the ordinance, Lafayette Parish agreed to accept the findings of the

State Land Office’s survey and both parishes agreed to appropriate funds to pay for

the survey. Additionally, the ordinance authorized the City-Parish President to enter

into a Joint Cooperative Endeavor Agreement and Intergovernmental Agreement with

the State Division of Administration State Land Office and the Vermilion Parish

Police Jury for the surveying and re-establishing of the boundary line. On April 19,

2002, a Joint Cooperative Endeavor Agreement and Intergovernmental Agreement

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was signed by Walter Comeaux of Lafayette Parish and Edval Simon of Vermilion

Parish.

Upon completion of the survey by the State Land Office, on December 16,

2003, the Lafayette City-Parish Government, adopted Ordinance No. 0-307-2003.

This ordinance accepted the findings and survey of the State Land Office which

placed Adola Road within Vermilion Parish and directed the city-parish president to

sign any documents finalizing the boundary.

On December 15, 2003, the Plaintiffs filed a Petition for Injunctive Relief in

the Fifteenth Judicial District Court for the Parish of Lafayette, Docket Number 2003-

6593, seeking to prohibit the Lafayette City-Parish Council from voting on and

approving the State Land Office survey which re-established the boundary between

Lafayette and Vermilion Parishes. The petition alleged: “On Tuesday, December 16,

2003, the Lafayette City-Parish Council is scheduled to vote and approve ordinance

number 0-307-2003 which would move the boundary or as stated in the ordinance ‘re-

establish’ the boundary between Lafayette and Vermilion Parish such that these

petitioners would be permanently exiled from Lafayette Parish.” Further, the petition

alleged, the petitioners would suffer irreparable damage should an injunction not

issue. The Plaintiffs amended the petition seeking a declaratory judgment that the

ordinance violates the Louisiana Constitution because “only the legislature may

change parish boundaries and then only on approval by two-thirds vote of the electors

in the each parish affected by the change in boundary.” This argument, which relies

on La.R.S. 33:141, was raised in the federal court suit.

On December 16, 2003, the trial court enjoined the ordinance from taking

effect until a hearing was held on the Petition for Injunctive Relief. Following the

January 12, 2004 hearing, the trial court rescinded the temporary restraining order and

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denied the preliminary and permanent injunctions, thereby allowing Lafayette Parish

Consolidated Government to move forward. On January 22, 2004, Ordinance No. 0-

307-2003 became law without the signature of the City-Parish President.

On July 22, 2004, the Plaintiffs filed the present suit against the Lafayette

Consolidated Government and the State Land Office in the Fifteenth Judicial District

Court, Docket Number 2004-3599, entitled Petition to Revoke, Rescind and Reform.

The petition alleges gross error on the part of the State Land Office. Plaintiffs allege

the State Land Office relied on incorrect and inaccurate maps and surveys when

determining the boundary and ignored relevant documents and data in its possession

which would have placed Adola Road within Lafayette Parish. Additionally, the

petition alleges fraud by the Lafayette City-Parish Consolidated Government in

accepting the Lafayette-Vermilion boundary line drawn by the State Land Office.

The Lafayette City-Parish Consolidated Government filed exceptions of vagueness,

non-joinder of a party and res judicata. A hearing was held on the City’s exceptions

on September 20, 2004. The trial court held the suit was barred by res judicata,

stating:

According to the Code of Civil Procedure Article 425, “A party shall
assert all causes of action arising out of the transaction or occurrence
that is the subject matter of the litigation.” This should have been
brought up in a prior, and I’m going to grant the exception of res
judicata.

The Plaintiffs filed this appeal. For the reasons assigned below, we reverse the

decision of the trial court, and find this suit is not barred by the doctrine of res

judicata. We remand for further proceedings.

LAW AND DISCUSSION

Louisiana Revised Statutes 13:4231 provides, in relevant part:

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

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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.

Louisiana Code of Civil Procedure Article 425(A) provides, in relevant part:

A party shall assert all causes of action arising out of the
transaction or occurrence that is the subject matter of the litigation.

In Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, the

Louisiana Supreme Court discussed the revisions to the res judicata statute and the

requirements for finding a suit is barred by res judicata.

In Burguieres, Mr. Burguieres died leaving an olographic testament which was

probated. The sister of the deceased, Mrs. Pollingue, was named as executrix. The

decedent’s children filed a petition to nullify the will and remove the executrix. The

trial court annulled the testament, removed the executrix and appointed the decedent’s

son as administrator. The court of appeal affirmed the judgment.

The children of the decedent filed a second suit for damages and attorney’s fees

against Mrs. Pollingue, the former executrix, alleging breach of the fiduciary

obligations as trustee. The executrix filed an exception of res judicata arguing the

second lawsuit arose out of the same transaction and occurrence as the first.

Therefore, plaintiffs were obligated to bring both actions at the same time and, thus,

the second suit was barred by res judicata. The trial court denied the exception,

reasoning the first suit sought to annul the testament while the present suit sought

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damages for breach of fiduciary duty and attorney’s fees. The appellate court

reversed the judgment of the trial court finding the allegations of the second suit were

connected to and arose out of the succession proceedings in the first suit. The

Louisiana Supreme Court granted writs and held the second suit was not barred,

stating:

Most of the controversy and confusion in Louisiana surrounding
res judicata prior to the 1990 amendment concerned whether there was
an “identity of cause.” With the 1990 amendment to the res judicata
statute, however, the chief inquiry is whether the second action asserts
a cause of action which arises out of the transaction or occurrence that
was the subject matter of the first action. Avenue Plaza at p. 6, 676
So.2d at 1080. See also La.R.S. 13:4231 cmt. a (1990). While this is the
central inquiry under the current statute, it is not the only inquiry. 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 occurrences that was the
subject matter of the first litigation.

Id. at 1053 (emphasis added).

The supreme court found, although the cause of action asserted in the second

suit arose out of the transaction or occurrences that was the subject matter of the first

litigation, a defendant must additionally meet the other requirements under La.R.S.

13:4231 in order for res judicata to apply. In that case, the court held Mrs. Pollingue

did not appear in the same capacity in the second suit as in the first; therefore, under

La.R.S. 13:4231, “[b]ecause of this difference in capacities, there is a lack of identity

of the parties between the two suits” and the requirements of the statute are not met.

Id. at 1056.

In the present suit, the Defendants contend “[a]t the time that the plaintiffs filed

that second suit [for injunction], which was heard by Judge Duplantier, they were

aware that the State Land Office had done the survey and had prepared a map. The

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map was to be presented at a public City-Parish Council meeting with the boundaries

clearly marked. Despite this knowledge, they did not challenge the accuracy of the

map or claim that fraud was involved in its preparation.” Therefore, the Defendants

argue, under the statute the Plaintiffs were bound to assert any and all causes of

actions against Lafayette Consolidated Government and the State Land Office which

existed at the time of the suit for an injunction. Since the Plaintiffs failed to assert a

cause of action challenging the accuracy of the maps or fraud on the part of the City,

then, under the statute any subsequent suit is barred by res judicata. We will examine

the Defendants’ argument in light of the requirements articulated in Burguieres.

The first state court lawsuit litigated the eligibility of Mrs. Duhon as a

candidate for a seat on the Lafayette City-Parish Council. This court affirmed the

factual determination of the trial court that Ms. Duhon’s home was located in

Vermilion Parish. The issues in the present suit were not raised or litigated in the

previous state court action. Moreover, the Lafayette Consolidated Government and

the State Land Office were not parties to that suit. It was only after the state court

judgment was final did Lafayette Consolidated Government initiate steps to

determine the boundary line between Lafayette and Vermilion Parishes by contracting

with the State Land Office to perform a survey. Moreover, the Louisiana Tax

Assessor and Registrar did not remove the Plaintiffs from the roles until after the state

court decision was final.

The Plaintiffs then brought suit in federal court alleging violations of their

constitutional rights. The federal court found it did not have subject matter

jurisdiction because no constitutional provision or federal statute were violated.

Therefore, issues raised in the present suit were not litigated or decided in the federal

court suit.

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The Plaintiffs then filed a Petition for Injunctive Relief, seeking to enjoin the

ordinance from taking effect and alleging permanent, irreparable injury. The petition

was amended, seeking a declaratory judgment that Ordinance 0-307-2003 was

unconstitutional because under state law a change in parish boundary lines must be

approved by a vote of the electors in each affected parish. Following a hearing, the

trial court rescinded the temporary restraining order and denied the permanent

injunction. The judgment is silent with regard to the Plaintiffs’ request for a

declaratory judgment.

When a judgment is silent as to part of the relief requested, the judgment is

deemed to have denied that relief. Guaranty Bank & Trust Co. of Alexandria, La. v.

Carter, 394 So.2d 701 (La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981).

Therefore, Plaintiffs’ claim for declaratory judgment that Ordinance 0-307-2003 is

unconstitutional is deemed denied because the trial court did not address it in the

judgment denying their requests for injunctive relief, and their failure to appeal the

denial resulted in a final judgment. Id. See also La.Code Civ.P. art. 1871.

However, the judgment of the trial court denying the injunction and allowing

the ordinance to become law is an interlocutory ruling and not a determination on the

merits. Jo Ellen Smith Psychiatric Hospital v. Harrell, 546 So.2d 886 (La.App. 1 Cir.

1989). Therefore, the primary requirement of the statute, namely a final judgment on

the merits, is not present. Moreover, under Burguieres, in order for res judicata to bar

a subsequent suit, the cause of action asserted in the second action must have existed

at the time of the final judgment in the first litigation. In this case, the Plaintiffs’

claims against the State Land Office and the Lafayette Consolidated Government for

fraud or inaccuracy in preparation of the survey did not arise until the ordinance took

effect and the survey by the State Land Office was finally adopted. See Tower

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Partners, L.L.C. v. Rao, 03-665 (La.App. 4 Cir. 1/21/04), 869 So.2d 126, writ denied,

869 So.2d 889, 04-445 (La. 4/2/04). When the Plaintiffs were unsuccessful in

preventing the ordinance from taking effect, they filed suit claiming fraud or mistake

on the part of the government officials. Id. We find the present suit is not barred by

res judicata. Therefore, the decision of the trial is reversed and the matter is

remanded for further proceedings.

DECREE

Based on the foregoing review of the evidence, the decision of the trial court

is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

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