Bryan Reed v. Cowboy's Western Store and Trailer Sales, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-462 consolidated with 16-640 and 16-722

BRYAN REED

VERSUS

COWBOY’S WESTERN STORE AND TRAILER SALES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2013-2661, DIVISION B
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David E. Chatelain, Judges.

AFFIRMED.

Raymond C. Jackson, III
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1000
COUNSEL FOR:
Defendants/Appellees – Cowboy’s Saloon, L.L.C. and Larry Bacque, Sr.


Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Jeffrey A. Rhoades
Swift & Rhoades
P. O. Box 53107
Lafayette, LA 70502-3107
Telephone: (337) 572-9877
COUNSEL FOR:
Defendants/Appellees – Cowboy’s Saloon, L.L.C. and Larry Bacque, Sr.

James Allen Lochridge, Jr.
Voorhies & Labbé
P. O. Box 3527
Lafayette, LA 70502-3527
Telephone: (337) 232-9700
COUNSEL FOR:
Defendants/Appellees - Larry Bacque, II and Bac Three, Inc.

Patrick Daniel
Daniel & Associates
2409 Commerce Street
Houston, TX 77003
Telephone: (713) 589-3539
COUNSEL FOR:
Plaintiff/Appellant - Bryan Reed

John E. McElligott, Jr.
Kevin M. Dills
Robert D. Felder
Jami L. Lacour
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP
810 South Buchanan Street
Lafayette, LA 70501
Telephone: (337) 237-1660
COUNSEL FOR:
Defendant/Appellee - Founders Insurance Company

Peter A. Bourgeois
Blake W. Bourgeois
Galloway, Johnson, Tompkins, Burr & Smith
One Shell Square
701 Poydras Street – 40th Floor
New Orleans, LA 70139
Telephone: (504) 525-6802
COUNSEL FOR:
Defendant/Appellee - Essex Insurance Company

THIBODEAUX, Chief Judge.

Bryan Reed appeals the trial court’s judgment granting summary

judgment and sustaining an exception of res judicata in favor of Cowboy’s

Western Store and Trailer Sales, Inc., Founders Insurance Company, Larry Bacque,

Sr., Cowboys Saloon, L.L.C., Essex Insurance Company, and Bac Three, Inc.

(collectively, “Cowboys”). Mr. Reed was injured when his tractor was rear-ended

by a vehicle driven by Megan Smith, who was under the age of 21. He alleges that

Ms. Smith was impaired from a night of drinking alcohol at Cowboys, a bar.

Finding that Mr. Reed did not controvert Cowboys’ expert affidavit, which attested

that Ms. Smith was not impaired, the trial court granted Cowboys’ Motion for

Summary Judgment. The trial court also later sustained an Exception of Res

Judicata. There, Cowboys argued that claims alleged in Mr. Reed’s Fourth

Amended Petition, which was filed after the Motion for Summary Judgment was

filed, were barred. Mr. Reed appeals both judgments. The appeals have been

consolidated by this court. For the reasons that follow, we affirm both judgments.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting Cowboys’
Motion for Summary Judgment.

(2) whether the trial court erred when it sustained
Cowboys’ Exception of Res Judicata.

II.

FACTS AND PROCEDURAL HISTORY

This matter is a vehicular collision that resulted in injury to Mr. Reed.

The accident occurred during the early hours of the morning when Ms. Smith rear-

ended the tractor that Mr. Reed was driving. Mr. Reed alleges that Ms. Smith, who

was under the legal drinking age at the time, was impaired when the accident

occurred and her impairment caused the accident. He further alleges that Ms.

Smith was impaired from a night of consuming alcohol at Cowboys, which is a bar

in Lafayette Parish. Ms. Smith did not receive a citation from the responding

deputy. However, Mr. Reed was cited for operating his tractor without lights and

was ultimately convicted for that infraction.

Mr. Reed named Cowboy’s Western Store & Trailer Sales, Inc.,

Cowboy’s Saloon, L.L.C., Bac Three, Inc., Larry Bacque, Sr., and Ms. Smith in his

original petition. He later amended his petition to add insurance defendants,

Founders Insurance Company, Essex Insurance Company, and James River

Insurance Company.

Cowboys filed a Motion for Summary Judgment before the trial court.

After the Motion for Summary Judgment was filed, but before it was heard, Mr.

Reed filed a Fourth Amended Petition. The amended petition added claims against

persons who allegedly gave Ms. Smith alcohol and a spoliation claim against her

parents for disposing the vehicle after the accident. It also asserted a claim against

Cowboys for a failure to supervise its employees.

The trial court granted the motion and dismissed the claims finding

that Mr. Reed failed to rebut Cowboys’ expert affidavit, which attested that Ms.

Smith was not impaired at the time of the accident. The trial court’s judgment was

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amended by consent of the parties to add James River Insurance, Founders

Insurance Company, and Essex Insurance Company, none of whom was a party to

the motion. The trial court also later sustained Cowboys’ Exception of Res

Judicata finding that the claims alleged in the Fourth Amended Petition were

barred by the court granting summary judgment.

Mr. Reed filed three appeals, two of which challenge the trial court

granting summary judgment and its amended judgment. The third challenges the

trial court sustaining the exception of res judicata. This court consolidated the

three appeals.

III.

SUMMARY JUDGMENT

A. Standard of Review

The grant or denial of a motion for summary judgment is reviewed de

novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate; i.e. whether there is any genuine issue

of material fact, and whether the movant is entitled to judgment as a matter of

law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83.

B. Law and Discussion

Mr. Reed contends that the trial court improperly granted the Motion

for Summary Judgment. 1 He argues that the trial court’s reasoning improperly

disregarded lay witness testimony who attested that Ms. Smith was impaired. Mr.

Reed argues that supreme court jurisprudence and La.Code Evid. art. 701 allow lay
1
Case No. 16-462 and 16-640 both relate to the trial court granting summary judgment.
The parties assert similar arguments in their respective briefs for each appeal. Thus, the cases
will be considered under one heading. We do note that 16-462 relates to a judgment that later
was amended by the trial court. The amended judgment, which was agreed-to by the parties, is
the base of 16-640. We only considered the amended judgment in making our ruling.

3

witnesses to testify regarding their opinion whether a person is intoxicated. Thus,

the lay witnesses’ testimonies create questions of fact concerning Ms. Smith’s

impairment that precludes summary judgment. Instead, the trial court reasoned

that Cowboys’ expert affidavit was uncontroverted and granted summary

judgment.

Further, Mr. Reed contends that Cowboys had a duty to prohibit

minors from possessing and consuming alcohol on their premises. Mr. Reed also

contends that the trial court erred by admitting the expert affidavit of Dr. William

George because it did not meet the Daubert standard of reliability.

Finally, he argues that the trial court erred by not granting him leave

to file his sur-reply. Because Cowboys submitted new evidence in their reply

brief, Mr. Reed argues that Cowboys violated La.Code Civ.P. art. 966(B)(3). 2

Consequently, the reply brief should have been converted into a new motion for

summary judgment for which he was entitled to respond. What Mr. Reed

overlooks, however, is that subsection (B)(3) was effective on January 1, 2016; the

Motion for Summary Judgment was filed on December 17, 2015; and, therefore,

this subsection is inapplicable.

In opposition, Cowboys argue that the trial court properly dismissed

the matter because Mr. Reed did not provide evidence or testimony to rebut their

expert. Thus, Mr. Reed could not establish that Ms. Smith was impaired at the

time of the accident and that her impairment was the cause. Further, the

testimonies of Mr. Reed’s lay witnesses were speculative, and there is no clear

evidence that Ms. Smith was impaired. They also maintain that it was within the

2
This article states, “[a]ny reply memorandum shall be filed and served in accordance
with Article 1313 not less than five days prior to the hearing on the motion. No additional
documents may be filed with the reply memorandum.” La.Code Civ.P. art. 966(B)(3).

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trial court’s discretion to deny Mr. Reed’s sur-reply as it was filed after business

hours the Friday before the Monday morning hearing.

Cowboys contend that its expert affidavit meets the Daubert standard

as it outlines the methodology used. They also contend that they did not have a

duty to patrol their property to ensure that Ms. Smith did not possess or consume

alcohol.

Louisiana has adopted a duty-risk analysis to determine whether to

impose liability in a tort action. The duty-risk analysis requires consideration of

five separate elements, all of which must be met for Mr. Reed to recover. The

duty-risk analysis requires Mr. Reed to establish that: (1) Cowboys had a duty to

meet a certain standard of conduct (the duty element); (2) Cowboys’ conduct failed

to meet that standard (the breach element); (3) the substandard conduct was a

cause-in-fact of his injuries (the cause-in-fact element); (4) the substandard

conduct was the legal cause of his injuries (the scope of liability or scope of

protection element); and (5) that he suffered actual damages as a result of the

breach (the damages element). Bonin v. Ferrellgas, Inc., 03-3024 (La. 7/2/04), 877

So.2d 89.

Mr. Reed focuses primarily on the causation element. However, our

view is that this case turns on whether Cowboys owed a duty and whether they

breached that duty. Mr. Reed contends that Cowboys had a duty to ensure

underage patrons did not consume or possess alcohol on their premises. Cowboys

argue that no such duty exists, and they were only obligated not to sell or serve Ms.

Smith alcohol.

Mr. Reed cites La.R.S. 26:90, La.R.S. 26:286, and the Lafayette

Government Ordinance 6-13 to support his position. He argues that these polices

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impose a duty on an alcohol permit holder to prohibit possession and consumption

of alcohol by underage patrons. The court will address each in turn.

First, La.R.S. 26:90 and 26:286 regulate alcohol permit holders. In

part, they make it unlawful for a vendor to sell or serve alcohol to patrons under

the age of 21. The pertinent portion of each statute has the same language. They

state that it is unlawful to “[s]ell, offer for sale, possess, or permit the consumption

on or about the licensed premises of any kind or type of alcoholic beverage, the

sale or possession of which is not authorized under his permit, except as provided

for in R.S. 26:793(A)(5).”3 La.R.S. 26:90(A)(5); 26:286(A)(5).

Mr. Reed draws attention to the words “possess or permit the

consumption on or about the licensed premises” in his brief. He implores us to

determine that this phase creates a duty for vendors to patrol its premises for

underage drinking. However, it is clear from the text of the statutes they relate to

the type of alcohol that a vendor can sell or possess based on its permit

classification. They do not mention whether a vendor has a duty to supervise to

ensure that underage patrons do not consume or possess alcohol.

Second, Lafayette Government Ordinance 6-13(c) makes it unlawful

in the parish for an alcohol permit holder to allow an underage person to possess

alcohol on its premise. In pertinent part, the ordinance states “[i]t shall . . . be

unlawful for any person required to hold an alcoholic beverage permit issued

pursuant to this chapter to allow and/or permit anyone under 21 years of age to be

in public possession of any alcoholic beverage[.]” Lafayette Government

Ordinance 6-13(c). Violation of this ordinance is punishable “by a fine not

exceeding $500.00 or imprisonment for a term not exceeding six months, or both

3
Louisiana Revised Statutes R.S. 26:793(A)(5) regulates homebrewed beverages.

6

such fine and imprisonment, for each violation.” Lafayette Government Ordinance

1-9; see also Lafayette Government Ordinance 6-3. The establishment’s owner

and/or the permittee could also be subject to revocation or suspension of his or her

permit. Lafayette Government Ordinance 1-9(d).

The court’s reading of the ordinance reveals that it is a penal law that

subjects the permit holder to penalties. It does not impose a heightened duty under

tort law to surveil an establishment to ensure that underage patrons do not consume

alcohol.

Further, jurisprudence holds that an alcohol vendor does not have a

heightened duty to patrol its establishment to prevent underage drinking. For

example, in Sparrow v. Wheeler, 10-21 (La.App. 1 Cir. 6/11/10), 2010 WL

2342758, after drinking at a bar, an underage patron was involved in a vehicular

accident that resulted in injury to the plaintiff. There was no evidence that the bar

sold or served alcohol to the underage patron. Instead, the plaintiff argued that the

bar had a heightened duty to ensure that underage patron did not obtain alcohol

while at the bar.

The court disagreed and held that summary judgment was appropriate.

It concluded that the plaintiff did not establish that the bar sold or served alcohol to

the underage patron the night of the accident. It further reasoned that “[t]o the

extent that plaintiffs ask this court to create and impose a heightened duty herein,

we find no support and decline to do so.” Id. at *3.

Similarly, in Colgate v. Mughal Brothers, Inc., 36,754 (La.App. 2 Cir.

1/29/03), 836 So.2d 1229, the second circuit held that a nightclub was not liable

because there was no evidence that it sold or served alcohol to an underage patron

who was later in a fatal, single-car accident. There, the mother of the decedent

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brought action against the nightclub where her daughter consumed alcohol the

night of the accident. The mother argued that the nightclub was negligent because

it failed to prevent the sale of alcohol to her daughter and/or allowed others to

furnish her with alcohol.

There was no evidence that the nightclub sold her alcohol. Instead, a

witness testified that he saw her take two glasses of beer from the bar. The witness

did not see her pay for the beers nor did he see a bartender hand them to her. The

trial court held that the nightclub was liable.

The second circuit reversed. It determined the nightclub had a duty

not to sell or serve alcohol to underage patrons. However, there was only

speculative evidence that it breached that duty. It stated that for the trial court to

reach its decision it had to conclude that the nightclub served or sold her alcohol.

The appellate court reasoned other plausible scenarios existed, such as

someone of legal drinking age buying her drinks or her fraudulently obtaining a

bracelet, which the nightclub used to identify patrons of drinking age, with false

identification. The court reasoned that “to reach the conclusion that [the nightclub]

breached a duty to [the decedent] would require speculation that [the decedent]

was intoxicated as a sole result of being sold or served alcohol by employees of

[the nightclub], of which there is no evidence.” Id. at 1234. The court determined

that her action of taking two glasses of beer from the bar was insufficient to

establish that the vendor sold or served her alcohol. Id. at 1229.

Mr. Reed cites case law that is unconvincing and distinguishable from

the facts at hand. He cites Kramer v. Continental Casualty Co., 92-1131 (La.App.

3 Cir. 6/22/94), 641 So.2d 557, for the proposition that a vendor has a duty to

confiscate alcohol possessed by a minor. In that case, teenagers rented a hotel

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room for a party, consumed alcohol, and became intoxicated. After receiving

complaints, the hotel manager instructed security guards to expel the teenagers

from the hotel. The security guards observed several teenagers possessing and

consuming alcohol, including drinking from a 16-gallon keg. The security guards

instructed the teenagers to vacate the premises, which forced them to drive home

after a night of drinking alcohol. One of the teenagers was later involved in a

single-car accident resulting in injuries to his passenger and himself. The court

determined that “the [hotel] should have reasonably foreseen that injuries would be

caused by an alcohol-related accident by a minor, who was allowed to drink and

become intoxicated on its premises with its knowledge, and who was forced to

drive in that condition by [the hotel].” Id. at 571.

Kramer did not involve an alcohol vendor selling or serving alcohol to

someone under the legal drinking age, nor did it involve an argument to impose a

heightened duty for an establishment to supervise its premise to prevent underage

drinking. The ruling was based on: (1) sufficient evidence that the driver was

intoxicated; (2) the security guards, who were off-duty sheriff deputies, had a duty

to enforce the drinking law applicable to minors; and (3) the security guards,

despite knowledge that the minors consumed alcohol, knowingly allowed the

minors to drive. None of these instances exists here.

It is clear from the mentioned case law the only duty Cowboys had

was to refrain from selling or serving alcohol to Ms. Smith. With regard to a

breach of that duty, the record is void of evidence that a bar employee sold or

served her alcohol. We are left only with speculation as to how Ms. Smith

acquired the alcohol. “Probabilities, surmises, speculations, and conjectures are

insufficient to prove negligence by a preponderance of the evidence.” Colgate,

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836 So.2d at 1234 (citing Cangiano v. Forte Hotels, Inc., 00-40 (La.App. 5 Cir.

10/31/00), 772 So.2d 879, writ denied, 00-3254 (La. 01/26/01)).

As in Sparrow and Colgate, we decline to impose a heightened duty

that Cowboys was obligated to patrol their premises continuously to ensure that

underage patrons did not possess or consume alcohol by way of an unlawful mean

(e.g. a person of legal drinking age purchasing a drink then transferring it to an

underage person). A finding of no legal duty pretermits a review of the remaining

elements under the duty/risk analysis.

Nonetheless, even arguing arguendo that duty and a breach of duty

are established, Mr. Reed has not established causation—that Ms. Smith was

intoxicated the night of the accident and her intoxication was the cause. Mr. Reed

contends that his lay witnesses rebut Cowboys’ expert affidavit to create a genuine

issue of material fact. These lay witnesses, Mr. Reed argues, testified that Ms.

Smith was impaired.

However, “a motion for summary judgment should not be determined

based on testimony that is ‘mere speculation.’” Skinner v. Derr Constr. Co., 05-

816, 05-817, p. 9 (La.App. 4 Cir. 7/26/06), 937 So.2d 430, 436 (citing Jones v.

Estate of Santiago, 03-1424, p. 10 (La. 4/14/04), 870 So.2d 1002, 1008); see also

Keller v. Messina, 05-745 (La.App. 3 Cir. 2/1/06), 921 So.2d 1162 (holding that

defendant’s testimony that plaintiff may have made a quick stop was speculative,

and thus, insufficient to rebut the plaintiff’s evidence that she was free from fault

when the defendant rear-ended her).

The record reflects that two persons, Chris Darby and Ashley

Burghdoff, each offered shifting testimony as to whether Ms. Smith was impaired.

10

For example, Mr. Darby, who was the last person to see Ms. Smith before the

accident, testified that:

Q: Okay. And when you dropped her off, did she appear
to be intoxicated when you dropped her off

A: Yes. She was. I mean we kind of sober up. I mean,
you know.

...

Q: Okay. And what makes you think that she was
intoxicated because you didn’t know her very well, I
mean was she slurring her words or?

A: Pretty much just the way she acted, you know, you
could tell that she [sic] must have been drinking
something or may have drank something on the way
home, I’m not sure

However, he also stated that:

Q: All right the next question is: “Okay: And when you
dropped her off did she appear to be intoxicated when
you dropped her off?” What was your answer?

A: “I mean she was sober up. But I mean I would say
that she was more tired than, than drunk”

Ms. Burghdoff, who saw Ms. Smith approximately 30 minutes before

the accident, testified that:

Q: Was [your opinion that Ms. Smith was intoxicated]
based on prior experience with Megan Smith? In other
words, had you been with Megan Smith before when she
was drunk, and that’s what you were using to identify she
was clearly intoxicated?

A: I don’t remember being with her when she was
definitely drunk, but I have been around her enough
sober to know the difference of when she was sober and
when she was under the influence[.]

Q: So there was no question in your mind she was under
the influence of alcohol, based on your past experience
with her?

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A: Yes.

Conversely, when asked to explain her statement that Ms. Smith was

“clearly intoxicated,” she stated “[a]s of right now, I can’t explain it because I

don’t remember. I don’t remember – I didn’t remember now . . . No I wasn’t

lying. But I – maybe I stated it wrong in my statement possibly by saying clear

intoxicated.”

The record is replete with other examples of inconsistent testimony.

Their testimony can be summed up as Ms. Smith “could have” been impaired but

they are not certain. Testimony of this type is speculative because it fails to

indicate that Mr. Reed could be able to establish at trial that Ms. Smith was

impaired. Thus, the testimony of Mr. Darby and Ms. Burghdoff is insufficient to

create a genuine issue of material fact in light of Cowboys’ uncontroverted expert

affidavit.

Mr. Reed’s argument that the expert affidavit is unreliable is also

unconvincing. He argues that the expert affidavit was conclusory and not based on

personal knowledge. The inadequacy of an affidavit is a “formal defect,” and the

opponent waives the defect unless he or she files a motion to strike or otherwise

objects to the affidavit. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.

2/29/00), 755 So.2d 226. Mr. Reed did not file a motion to strike the expert

affidavit, but did object during the hearing on Cowboys’ Motion for Summary

Judgment.

The supreme court adopted the Daubert standards as those to be

utilized by Louisiana courts. State v. Foret, 628 So.2d 1116 (La.1993). At the

summary judgment stage, the Daubert–Foret standard should be considered by the

trial judge in deciding whether to admit expert opinion evidence. Indep. Fire Ins.

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Co., 755 So.2d at 226. In performing its gatekeeping analysis at the summary

judgment stage, the court: (1) cannot make credibility determinations, (2) must

“focus solely on the principles and methodology, not on the conclusions they

generate,” (3) “must draw inferences from the undisputed facts which are most

favorable to the party opposing the motion,” and (4) “should only grant a motion to

strike when the evidence presented established that there is no genuine issue of

material facts in dispute.” Id. at 236 (quoting Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S., 579, 595, n. 6 (1993)). Further, our supreme court has held that

affidavits from experts that are not based on personal knowledge are admissible to

support or defend against a motion for summary judgment if the above principles

are met. Indep. Fire Ins. Co., 755 So.2d at 226.

In examining the expert affidavit submitted by Dr. George, we

conclude that it is not conclusory. Contrary to Mr. Reed’s argument, his affidavit

includes his methodology. In reaching his determination, Dr. George examined

twenty-two pieces of evidence, including the deposition of Ms. Smith, Mr. Darby,

and Ms. Burghdoff, and the accident report written by the responding deputy. He

examined Ms. Smith’s body weight, the amount of alcohol that she consumed that

night (two beers and one mixed drink), and the time that elapsed between her

leaving the bar and the accident (four hours). Based on his expertise as a scholar in

toxicology and pharmacology, he concluded that Ms. Smith was neither

intoxicated nor impaired when the accident occurred. Accordingly, we find that

the trial court did not err in overruling Mr. Reed’s objection to Cowboys’ expert

affidavit. Further, we conclude that the trial court’s reliance on the expert affidavit

was proper.

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Finally, we hold that the trial court did not err by not considering Mr.

Reed’s sur-reply. The motion for leave to file the brief was filed via fax after

business hours on the Friday before the Monday morning hearing. At the time of

the hearing, the late-filed memorandum was not before the court.

We note that although the sur-reply was filed via fax, an original was

not filed into the record within seven days as required by La.R.S. 13:850(B). We

also note that even if the trial court had granted leave to file the sur-reply, the

memorandum and attached affidavit do not advance an issue in this matter. Mr.

Reed’s memorandum restates previous arguments. Additionally, the attached

affidavit from Brian Frist, a forensic pathologist, was deficient because it was not

notarized. Durham v. Brown, 14-1042 (La.App. 3 Cir. 3/4/15), 159 So.3d 1149;

Gorman v. Miller, 12-412, p. 8 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 841 (“A

document that is not signed and notarized cannot be considered as an affidavit.”);

see also Landry v. Stein, 497 So.2d 1075, 1077 (La.App. 5 Cir. 1986) (“Unsworn

and unverified documents are not of sufficient evidentiary quality to be given

weight in determining whether there is a genuine issue of material fact.”).

Dr. Frist first states that based on the evidence he reviewed, he is

uncertain of the amount of alcohol Ms. Smith consumed. Nevertheless, he later

concluded that this indeterminate amount of alcohol caused Ms. Smith to become

impaired. 4 He does not include the methods (such as an examination of body

weight, time elapsed, or drinks consumed) that he used to reach his conclusion.

His testimony in no way rebuts Dr. George’s opinion that Ms. Smith was not

4
In full, Dr. Frist states: “It is my opinion the amount of alcohol consumed by Megan
Smith during the early morning hours of June 22, 2012 would have impaired her and affected her
ability to operate a motor vehicle, her judgment, her reaction time, her decision making, her
vision, and would have contributed to the subject accident.”

14

impaired at the time of the accident. Therefore, we conclude that the trial court did

not err by not considering the sur-reply. Further, even if it did consider the sur-

reply, it does not advance an issue in this matter.

Accordingly, for the reasons stated, we conclude that the claims

against Cowboys were properly dismissed via summary judgment by the trial court.

IV.

EXCEPTION OF RES JUDICATA

A. Standard of Review

The parties dispute the standard of review that should be applied. Mr.

Reed acknowledges that appellate courts typically review an exception of res

judicata using the manifest error standard. However, he asserts that a de novo

review is required because the trial court did not make a factual determination in

reaching its ruling; thus, the res judicata effect is a question of law.

Cowboys ask this court to apply the manifest error standard. It notes

that a ruling sustaining an exception of res judicata is reviewed using the manifest

error standard when the exception is raised before the case is submitted.

“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

Grp., Inc., 08-1276, p. 4 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1024; see also

Allain v. Tripple B Holding, LLC, 13-673, p. 9 (La.App. 3 Cir. 12/11/13), 128

So.3d 1278, 1285 (“An appellate court reviews the exception under the manifest

error standard of review if evidence is introduced in support or contravention of the

exception.”).

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However, in the event “the trial court does not make any factual

determinations, but rather the issue is whether a prior judgment bars an action,

‘[t]he res judicata effect of a prior judgment is a question of law that is reviewed de

novo.’” Haybeych v. JPMorgan Chase Bank, N.A., 15-90, p. 3 (La.App. 3 Cir.

11/4/15), 180 So.3d 491, 494 (quoting Morales v. Parish of Jefferson, 10-273, p. 6

(La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672).

During the hearing, Mr. Reed attempted to admit a number of items,

including the petitions that are at issue, his opposition to the Exception of Res

Judicata, and a number of exhibits, including the sur-reply to Cowboys’ Motion for

Summary Judgment, evidence concerning Dr. William George’s unreliability, and

affidavits from Jody Fontenot and Dr. Brian Frist. The petitions, his opposition to

the Exception of Res Judicata, and his opposition to Cowboys’ Motion for

Summary Judgment were admitted without objection. Cowboys objected to the

remaining items. The court sustained Cowboys’ objections and thereafter

sustained the exception.

It is unclear whether the trial court considered any exhibits or

evidence when it rendered its ruling or simply examined the petitions to determine

the res judicata effect of granting summary judgment. Although the judgment

notes the court made its ruling after “considering the pleadings . . . the applicable

law, evidence submitted, [and] arguments of counsel,” the trial court sustained the

objections and granted the exception without oral or written reasons. Therefore,

because it is unclear if the court made a factual finding when it rendered its ruling,

we will conduct a de novo review.

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B. Law and Discussion

Mr. Reed argues that the trial court’s ruling granting summary

judgment did not include claims that were asserted in his Fourth Amended Petition,

which was filed after the Motion for Summary Judgment. Thus, they are not

barred by res judicata. Mr. Reed contends: (1) that his new claims did not require

an intoxication evaluation, which was the basis of the trial court granting summary

judgment; (2) because the trial court improperly accepted Dr. George’s affidavit as

reliable, exceptional circumstances exist pursuant to La.R.S. 13:4232 to justify

relief from the res judicata effects of the judgment; and (3) granting of summary

judgment was not a final judgment for purpose of res judicata because it is the

subject of this appeal.

In opposition, Cowboys maintains that the Fourth Amended Petition is

barred by res judicata because: (1) it restates the claims made in the Third

Amended Petition with minor revisions, (2) the claims existed when the trial court

signed its judgment; (3) the claims arose from the same transaction or occurrence

that were the subject of the dismissed claims; (4) no exceptional circumstances

exist; and (5) the judgment was final.

Louisiana Revised Statutes 13:4231 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

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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.

The supreme court has established elements for courts to consider

when deciding a res judicata issue. These elements include whether: (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. 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. Id. at 1053.

In his Fourth Amended Petition, Mr. Reed alleges: (1) Ms. Smith’s

parents (Williams and Wendy Smith) spoliated evidence by destroying the vehicle

she drove that night; (2) Cowboys failed to confiscate Ms. Smith’s alcohol; (3)

Dakota Armond, Chris Darby, and Chelsea Rodriguez acted as Cowboys’ agents

by buying her drinks until she became intoxicated; and (4) Cowboys failed to

supervise its employees.

Based on our de novo review, the claims asserted in the Fourth

Amended Petition against Cowboys clearly arose out of the same transaction or

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occurrence (the accident and Ms. Smith’s alleged impairment) that formed the

basis of the previous petitions. In fact, many of the allegations in the amended

petition simply rephrase previous claims with insignificant revisions. For example,

Mr. Reed changed “allowing minors to obtain alcohol while under its care [sic]

custody, and control” to “allowing minors to obtain and receive alcohol while

under its care [sic] custody, and control.” Further, all of the claims in the subject

amended petition against Cowboys arise from the same nucleus of facts previously

alleged and existed when the trial court issued its judgment.

Additionally, the court’s judgment is clearly a final judgment for res

judicata purposes. “[A] judgment becomes final once signed by the trial judge

unless reversed on appeal.” In re Succession of Bernat, 13-277, p. 7 (La.App. 3

Cir. 10/9/13), 123 So.3d 1277, 1283, writ denied, 13-2640 (La. 2/7/14), 131 So.3d

865. Thus, the judgment was final on March 7, 2016, unless it is later reversed.

We also decline to hold that exceptional circumstances exist to justify relief from

the res judicata effect of the judgment. No such circumstances exist for the reasons

stated in this opinion, mainly that the trial court was correct in relying on

Cowboys’ expert affidavit and not considering Mr. Reed’s sur-reply.

The claims against the newly inserted defendants also do not alter this

court’s analysis. Those claims, that Ms. Smith’s parents spoliated evidence and

that her friends purchased drinks for her, do not involve any duty that Cowboys

owed. Nor do they impose liability on Cowboys if proven. In short, there are no

new claims in the Fourth Amended Petition relevant to Cowboys’ alleged conduct

that arises out of a different transaction or occurrence. Accordingly, based on our

de novo review, Cowboys’ Exception of Res Judicata was properly sustained by

the trial court.

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V.

CONCLUSION

For the foregoing reasons, the trial court’s rulings are affirmed. Costs

of this appeal are assessed to Bryan Reed.

AFFIRMED.

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