C. F. Kimball, III, Et Ux. v. Luhr Brothers, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-518

C.F. KIMBALL, III AND
LINDA R. KIMBALL

VERSUS

LUHR BROS. INC. D/B/A
CONSTRUCTION AGGREGATE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2008-0847 DIV. “L”
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE
**********
JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannnon J.
Gremillion, Judges.

AFFIRMED.

Randy M. Guidry
Durio, McGoffin, Stagg & Ackermann
220 Heymann Boulevard
Post Office Box 51308
Lafayette, Louisiana 70505-1308
(337) 233-0300
COUNSEL FOR PLAINTIFFS/APPELLANTS:
C.F. Kimball, III and Linda R. Kimball

Paul C. Miniclier
Law Office of Paul C. Miniclier
1305 Dublin Street
New Orleans, Louisiana 70118
(504) 864-1276
COUNSEL FOR DEFENDANTS/APPELLEES:
Omni Marine Transportation, Inc. and
Luhr Bros. Inc.

GENOVESE, Judge.

In this property damage lawsuit, Plaintiffs, C.F. Kimball, III and Linda R.

Kimball, appeal the trial court’s grant of exceptions of res judicata filed by

Defendants, Omni Marine Transportation, Inc. and Luhr Bros. Inc. For the reasons

that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The Kimballs initially filed suit against Luhr Bros. Inc. (Luhr Bros.)1 d/b/a

Construction Aggregate for damages to their property located along the Vermillion

River in Lafayette Parish. They later amended their lawsuit to name Omni Marine

Transportation, Inc. (Omni) a defendant. Luhr Bros. is the owner of a shell yard

located directly across the river from the Kimballs’ property. Omni is the owner of

vessels that make deliveries to the Luhr Bros.’ facility.

In their Petition for Damages, the Kimballs contend that Omni and Luhr

Bros. “have been actively engaged in activities causing the destruction of certain

property, specifically, a bulkhead, belonging to the [Kimballs], all as a result of

their business activities on and adjacent to the Vermilion River and during the

course and scope of their businesses.” In response, Omni and Luhr Bros. filed

responsive pleadings, including exceptions of res judicata, an answer, and a

reconventional demand against the Kimballs.

In their exceptions of res judicata, Omni and Luhr Bros. asserted that prior

litigation between the parties resulted in the execution of a Receipt, Release, and

Indemnity Agreement (the Release), which they claim bars the current litigation.

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Although the caption of the Kimballs’ initial Petition for Damages identifies Luhr Bros. Inc.
d/b/a Construction Aggregate as a Defendant, also named as a Defendant was Omni. The petition
was subsequently amended to dismiss Construction Aggregate. Omni and Luhr Bros. also filed a
third party demand against Danny Richard and later amended same to name Danny D. Richard
a/k/a Danny Richard and Shoreline Designs, Inc. These third party claims were also
subsequently dismissed.

The exceptions were heard by the trial court on February 27, 2012.2 The trial court

granted the exceptions and dismissed the claims of the Kimballs, with prejudice.

The Kimballs have appealed.

ASSIGNMENTS OF ERROR

The Kimballs assert on appeal that “[t]he [trial] [c]ourt committed manifest

error in granting the [e]xception[s] of [r]es [j]udicata because [they] did not release

[Omni and Luhr Bros.] from damaging a structure that did not even exist at the

time of execution of the release.”

LAW AND DISCUSSION

Standard of Review

The standard of review to be applied in this case is that of manifest error.

Steckler v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161,

writs denied, 11-2639, 11-2677 (La. 2/10/12), 80 So.3d 477, 487. In Steckler, 76

So.3d at 164, this court stated as follows:

“The standard of review of a ruling sustaining an exception of
res judicata is manifest error when the exception is raised prior to the
case being submitted and evidence is received from both parties.”
Jones ex rel. Jones v. GEO Group, Inc., 08-1276, p. 4 (La.App. 3 Cir.
4/1/09), 6 So.3d 1021, 1024 (citing State ex rel. Sabine River Auth. v.
Meyer & Assocs. Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967
So.2d 585).

Res Judicata

The doctrine of res judicata is codified 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.

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Various other matters were also heard on this date; however, they are not before this court on
appeal.
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(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.

Our Louisiana Supreme Court, in Burguieres v. Pollingue, 02-1385, p. 8

(La. 2/25/03), 843 So.2d 1049, 1053, set forth the following five requisite elements

for a matter to be considered res judicata:

(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.

The Kimballs do not contest the fact that the instant litigation satisfies the

first, second, third, and fifth Burguieres elements. Instead, they ask this court “to

focus on criteria number four.” The Kimballs argue that “[t]here simply is no way

that the cause or causes of action asserted in the second suit existed at the time of

the final judgment of the first suit.” At the time the release was executed, March

25, 2002, the bulkhead was not yet in existence; therefore, they conclude that the

cause of action in the instant suit, filed February 11, 2008, could not exist in 2002.

The jurisprudence is clear that a release of claims given in exchange for

consideration, is sufficient basis for an exception of res judicata.

In Bailey v. Martin Brower Co., 94 1179, p. 3 (La.App. 1 Cir.
4/7/95), 658 So.2d 1299, 1301, the court succinctly summarized the
application of res judicata to releases as follows:

While the doctrine of res judicata is ordinarily
premised on a final judgment, it also applies where there
is a transaction or settlement of a disputed or
compromised matter that has been entered into by the
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parties. A release of claim or claims, when given in
exchange for consideration, is a compromise and
constitutes the basis for a plea of res judicata. [Matthew
v. Melton Truck Lines, Inc., 310 So.2d 691, 693 (La.App.
1st Cir.1975)]; Spencer v. Howard, Weil, Labouisse &
Friedrichs, Inc., 543 So.2d 547, 550 (La.App. 4th Cir.),
writ denied, 546 So.2d 1217 (La.1989); Thompson v.
Bank of New Orleans and Trust Company, 422 So.2d 230,
231 (La.App. 4th Cir.1982). However, the authority of
the thing adjudged resulting from the release extends to
only those matters the parties expressly intended to settle.
Matthew v. Melton Truck Lines, Inc., 310 So.2d at 693.

Sonnier v. La. Farm Bureau Mut. Ins. Co., 05-1006, pp. 2-3 (La.App. 3

Cir. 3/1/06), 924 So.2d 419, 420-21, writ denied, 06-704 (La. 5/26/06), 930 So.2d

33. Thus, whether the present exceptions are meritorious hinge on the language of

the Release. Although we agree with the Kimballs that “a general release will not

bar recovery for those aspects of a claim not intended to be covered by a release[,]”

such is not the case in the language of the Release between the parties.

In the instant matter, the Release (emphasis added) at issue contains the

following language:

THEREFORE, in consideration of the payment to C. F.
Kimball, III, and Linda R. Kimball the sum of ONE HUNDRED
AND FIFTY THOUSAND AND NO/100 ($150,000) DOLLARS, the
Kimballs, hereby release, forever discharge, and dismiss with
prejudice Luhr Bros., Inc., d/b/a Construction Aggregate Supply,
Omni Marine Transportation, Inc., American Employer’s Insurance
Company, Fairfield Insurance Company, Fireman’s Fund Insurance
Company, Royal Insurance Company, Markel Insurance Company
and/or their subsidiaries, affiliates, predecessors, successors, parent
and/or related corporations and/or entities, owners, general partners,
limited partners, agents, officers, representatives, employees,
executive officers, directors, stockholders, assigns, underwriters
(hereinafter RELEASEES) from any and all claims past, present and
future that the Kimballs asserted or could have asserted in the
pending lawsuit referenced above against RELEASEES for
restoration of and/or protective measures for the Kimballs’ bank on
the Vermilion River, without any admission of liability on the part of
RELEASEES. The cause(s) of action compromised herein by the
Kimballs sought restoration of riparian property on the Vermilion
River from RELEASEES as well as installation of protective
measures for the Kimballs’ bank. With the exception of this release,
the Kimballs agree that the sums received in this compromise are
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sufficient to compensate fully for the restoration of any property loss
they have suffered. Further, the Kimballs agree that, to the extent that
any such obligation ever existed, the sums received in this
compromise satisfy fully the obligation of RELEASE[E]S to
implement any protective measures for the Kimballs’ bank on the
Vermilion River in Lafayette Parish Louisiana with the Kimballs now
assuming the obligation to implement any protective measures for the
Kimballs’ bank on the Vermilion River.

The Kimballs’ argument that they did not release Omni and Luhr Bros.

“from damaging a structure that did not even exist at the time of execution of the

[R]elease[,]” completely ignores the express language of the Release itself.

Contrary to their assertions, the Release language acknowledges that the causes of

action asserted by the Kimballs in the first lawsuit sought two forms of relief,

namely, “restoration” of their property and “installation of protective measures[.]”

Further, the Release acknowledges that the sums received in settlement “satisf[ied]

fully” not only any obligation of restoration, but, additionally, “the obligation [of

Omni and Luhr Bros.] to implement any protective measures[.]” Moreover, the

Release expressly includes any future claims and, consistent therewith, provides an

assumption by the Kimballs “to implement any protective measures.”

The first lawsuit and the Release, that ultimately compromised the litigation,

included both restoration of the Kimballs’ property and the implementation of

protective measures, i.e., the bulkhead. From the time the Release was executed,

these protective measures became the sole responsibility of the Kimballs; the fact

that the bulkhead did not exist at the time the Release was executed is impertinent,

immaterial, and irrelevant. Under Burguieres, 843 So.2d at 1053, “the cause or

causes of action asserted in the second suit existed at the time of the final judgment

in the first litigation[.]” Accordingly, we find no manifest error in the trial court’s

grant of the exceptions of res judicata filed by Defendants, Omni Marine

Transportation, Inc. and Luhr Bros. Inc.

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DECREE

The judgment of the trial court granting the exceptions of res judicata in

favor of Omni Marine Transportation, Inc. and Luhr Bros. Inc. dismissing the

claims of C.F. Kimball, III and Linda R. Kimball, with prejudice, is affirmed. All

costs of this proceeding are taxed to C.F. Kimball, III, and Linda R. Kimball.

AFFIRMED.

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